Prosecuting for Criminal Intent for Certification and Training Programs Dale Burnett Executive Director Texas Structural Pest Control Board & Frank Crull General Counsel Texas Structural Pest Control Board

Goals of Enforcement Compliance How serious are the violations? How long will it take to fix them? Expectation of cooperative and timely return to compliance?

Prevention Level Playing Field Punishment Administrative and civil penalties designed to provide deterrence. Criminal penalties are designed for punishment. Can lead to imprisonment and/or large monetary penalties, therefore screen.

The Why & How to Catch Them Speed Is it cheaper to pace someone or use a radar gun? Conversely, is it cheaper to use a radar jammer or obey the speed limit?

Why do criminal enforcement for a C&T Program? Career criminals pass through e.g., steal oil field equipment steal art steal cars Why not steal in the “green” business? e.g., Banks in the 70’s & 80’s Computers in the 90’s Environmental in the 90’s Accounting/Stock Market in the 00’s

Elements of Environmental Crimes Environmental crimes have economic elements. Unfair competition Impact on property belonging to others. Consumer fraud

The Violation You have an Enforcement program to backup your licensing program. Your agency and/or EPA takes action against someone for doing something wrong. This is driven by statute. Some people obey because there is a law, some people obey because of enforcement efforts, and some people don’t obey at all.

Enforcement Process An agency’s initial action is geared to severity of the initial violations. Enforcement should escalate for continued or repeated noncompliance by the violator. Selection of civil or criminal process depends on the case and your resources.

The Typical C&T Violations Person goes from being found to be unlicensed, gets licensed and then gets unlicensed because licensing is too much of a hassle. Person get licensed, but continues to operate outside of approved categories.

WHO? Resources Personnel – different disciplines - Task Force agencies Document review Search warrant assistance Surveillance assistance Equipment Contractors Laboratories Criminal history access Case referrals Communication Training Umbrella

Who’s Been Caught in Texas? David Grand – former licensee, sold services without providing a result or product. Asa Everitt – probation revoked on related criminal offenses. Former licensee who kept trying to renew license with false information.

Criminal Forum Consequences Usually “owner or operator.” Owners can be corporations. Operators are officers or staff.

No Corporate Shield Most officers are used to immunity. Operators are strictly liable. Who is an operator? Regulatory definitions Caselaw

Elements of a Crime The Actus Reus: What did the violator do? Acts that the violator did. Acts that the violator failed to do.

The Mens Rea: What was the violator thinking? Unintentional or accidental: not a crime Negligent: may be a crime, look to statute. Willful Intentional

CivilCriminal Preponderance of Evidence More likely than not Beyond a reasonable doubt (not beyond all doubt) 51/49 in theory 80-90% in reality 99% ? 99.9%? 100%? Knowledge, intent, willfullness Not a legal necessity Knowledge, intent, willfullness can be/are key $ & Licenses and injunctive relief $ & Freedoms & debarment Entry: Inspections: -Within regulatory bounds - Permission Entry: Investigations: -Outside of “target sites” -Permission -Search warrants with judged approved scope

Parallel Proceedings Combination of civil/administrative and criminal actions. Objectives that require injunctive relief as well as punishment. May have injunctive relief against corporation and incarceration for individuals. Corporation may lose government contracts for a criminal conviction. Arthur Anderson/Enron Bethlehem Steel

Rules for Parallel Proceedings Do what you would normally do for the civil case. Do not let the civil case be directed by criminal investigators or prosecutors. “Do your normal job.” Information can be shared between criminal investigators and inspectors. Records for the civil and criminal cases should be kept separately.

Training FLETC-Glynco, Georgia Northeast ProjectMidwestWestS.E.E.N.** AWWAWW *2 week EPA Paid School Hazardous  Multi media *Requires 24 hour basic course; only about 60/year; **About 30/year paid by SEEN; additional spots for $; ***About /year – twice a year; ****Varies; *****1 main conference/yr State $10,000/Year & EPA $ & Donations State/SI 3 day Course *** T.E.L.E.A***** Local 1-2 Day Courses Orientation

Southern Environmental Enforcement Network 504 Brookwood Boulevard, Suite 130 Birmingham, AL Phone: Fax: Executive Director: Geary Allen Information Management Specialist: Karen Gourley