Friday, April 20, 2007

Appeals Court In Wisconsin Prosection of Georgia Thompson: "Preposterous"

The United States Court of Appeals for the Seventh Circuit in the UNITED STATES OF AMERICA v. GEORGIA L. THOMPSON case excoriated the prosecutor calling his theory of the case "preposterous." Near the end of the decision, the Court said this:

The idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend public money is preposterous.

Here's more of the reasoning:

Adelman Travel was the low bidder, but a low price for lousy service is no bargain. Wisconsin’s rules give price only a 25% weight (300 of 1200 points) in the selection process. About 58% (700 points) goes to service, which a working group evaluates subjectively based on written presentations. Adelman had the second-best score for service; Omega World Travel came in third. The combined price-and-service rating had Adelman in the lead. (Fox World Travel received the best service score but had a noncompetitive price.) The final 17% of the score (200points) depends on the working group’s assessment of oral presentations. These presentations (often dubbed “beauty contests” or “dog-and-pony shows” that may reward the flashiest PowerPoint slides) need not be related to either price or the pitchman’s probable quality of service; why the state gives them any weight, independent of price or quality, is a mystery, but not one we need unravel.

Adelman Travel must have made a bad presentation, for six of the seven members of the working group gave it poor marks (from a low of 120 points to a high of 165), while awarding Omega scores between 155 and 200. Thompson alone gave Adelman a higher score (185 for Adelman, 160 for Omega). Adelman Travel’s disastrous oral presentation left Omega World Travel with the highest total score.

The prosecution’s theory is that Omega should have received the contract on the spot but that for political reasons Thompson ordered a delay. Thompson told her colleagues that a decision for Omega, which is based on the East Coast, would not go over well with her boss, Pat Farley. A jury also could conclude that Thompson said something to the effect that for “political reasons” Adelman Travel had to get this contract. (Witnesses related different versions of what Thompson said, but in each account“politics” or “political” played some role.)

Thompson tried to engage in logrolling, offering to change her scores for bidders on other travel contracts if members of the working group would change their scores on this contract. Horse-trading proved to be unacceptable to the selection group, but a member other than Thompson suggested that the contract be rebid on a best-and-final basis, as state law permitted. Wis. Stat. §16.72(2m)(e), (g).

Adelman Travel reduced its price, which — keeping all other elements of the score constant — left Adelman and Omega with 1027 points apiece. The tie depended on rounding to the nearest whole number. Adelman Travel’s score was 1026.6, while Omega World Travel’s score was 1027.3. After Thompson (with her supervisors’ consent) deemed the contest a draw — sensibly, as the difference was trivial compared to the amount of subjectivity and variance in the committee members’ evaluations — Thompson employed a tie-breaking procedure, specified by state law, that gave weight to items not previously figured into the price comparison and declared Adelman Travel to be the winner.


Perhaps, however, Farley favored Adelman Travel because it was cheaper. This would be a political position in the best sense of that term. Many a person runs for office on a platform of cutting the cost of government. Bureaucrats may call a preference for low price over high levels of service a form of “political interference” with their operations (especially when it is state employees who may suffer inconvenience in order to save the taxpayers’ money), but no party has a monopoly on opposing gold-plated wastebaskets and other excesses. Low prices may advance the public interest even if they discomfit public employees, and recognition that driving down the cost of government is good politics for incumbents does not transgress any federal statute of which we are aware.

Still another possibility is that Farley (and thus Thompson) sought to favor a local firm over one from another state. The Supreme Court has held that states, as market participants, may buy preferentially from their own citizens. See, e.g., White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983); Reeves, Inc. v. Stake, 447 U.S. 429 (1980). A preference for in-state suppliers who can vote, over competitors who can’t, maybe smart politics. Again no federal statute regulates such behavior, let alone declares it to be a felony. Wisconsin law specifies a preference for domestic bidders, though only when the out-of-state bidder hales from a jurisdiction that favors its own citizens in procurement decisions. Wis. Stat. §16.75(1)(a) 2.

The evidence of record would not permit a jury to find beyond a reasonable doubt which of these three “political” reasons was Farley’s, let alone whether Farley’s reason also was Thompson’s — for Thompson may have been trying to be a faithful subordinate without questioning her boss’s bona fides. Nor was the jury asked to determine Thompson’s motive. The United States maintains that Thompson’s objective is irrelevant. It is enough, the prosecutor insists, that Thompson deflected the decision from the one that should have been made under the administrative process. When coupled with a personal benefit (the raise), such a deflection is criminal under federal law, the United States insists. In other words, the prosecutor’s argument is that any public employee’s knowing deviation from state procurement rules is a federal felony, no matter why the employee chose to bend the rules, as long as the employee gains in the process. (Instating the argument this way, we are assuming that the jury could and did find beyond a reasonable doubt that Thompson knew that the state’s procurement rules entitled Omega World Travel to the contract, given her fellow employees’ favorable view of Omega’s oral presentation.)


The United States has not cited, and we have not found, any appellate decision holding that an increase in official salary, or a psychic benefit such as basking in a superior’s approbation (and thinking one’s job more secure), is the sort of “private gain” that makes an act criminal under §1341 and §1346. The United States does rely on a few decisions of district courts, e.g., United States v. Sorich, 427 F. Supp. 2d 820, 829 (N.D. Ill. 2006); United States v. Munson, 2004 U.S. Dist. LEXIS 14274 *3 (N.D. Ill. July27, 2004), but we do not find them persuasive. We now hold that neither an increase in salary for doing what one’s superiors deem a good job, nor an addition to one’s peace of mind, is a “private benefit” for the purpose of §1346.

The Court finished with this:

Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions.

In layman's language, they were saying Congress did a horrible job in writing this law and it needs to be fixed.

You can read the entire opinion here.

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