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OFFICE OF THE INSPECTOR GENERAL
INTO MISCONDUCT VIOLATIONS BY A FORMER EMPLOYEE OF THE OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT, AN EMPLOYEE OF FIRE AND EMERGENCY MEDICAL SERVICES, AN EMPLOYEE OF THE OFFICE OF CONTRACTING AND PROCUREMENT, AND A FORMER EMPLOYEE OF THE EXECUTIVE OFFICE OF THE MAYOR OIG NO. 2009-0305 (S) April 14, 2011 2009-0305(S) INVESTIGATION INTO MISCONDUCT VIOLATIONS BY A FORMER EMPLOYEE OF THE OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT, AN EMPLOYEE OF FIRE AND EMERGENCY MEDICAL SERVICES, AN EMPLOYEE OF THE OFFICE OF CONTRACTING AND PROCUREMENT, AND A FORMER EMPLOYEE OF THE EXECUTIVE OFFICE OF THE MAYOR TITLE: David Jannarone,1 former Director of Development, Office of the Deputy Mayor for Planning and Economic Development (DMPED); SUBSTANTIATED. Ronald Gill, Deputy Fire Chief, Director of Fleet Management Division, Fire and Emergency Medical Services (FEMS); SUBSTANTIATED. Robin Booth, Personal Property Specialist, Personal Property Division, Office of Contracting and Procurement (OCP); SUBSTANTIATED. Andrew "Chip" Richardson III, former General Counsel, Executive Office of the Mayor (EOM); SUBSTANTIATED. DATES OF OCCURRENCE:
LOCATIONS OF OCCURRENCE:
INVESTIGATED BY: Special Agent (SA) Tanisha Carr STATUTES/REGULATIONS IMPLICATED:
ACTIONS TAKEN: Recommendations referred to Vincent C. Gray, Mayor; Allen Y. Lew, City Administrator; Victor L. Hoskins, DMPED; Kenneth Ellerbe, Chief, FEMS; and James Staton, Acting Director, OCP.
The District of Columbia Office of the Inspector General (OIG) initiated an investigation in April 2009 after receiving from Councilmembers Mary Cheh, Chairperson, Committee on Government Operations and the Environment, and Phil Mendelson, Chairperson, Committee on Public Safety and the Judiciary, Council of the District of Columbia (Council), a request for an investigation into the donation of surplus FEMS equipment to Peaceoholics, Inc. (Peaceoholics), a District of Columbia nonprofit, and all related issues, including the emergency rulemaking published in the March 20, 2009, D.C. Register authorizing the donation. The OIG investigation revealed that David Jannarone, former Director, DMPED, and Ronald Gill, Deputy Fire Chief, FEMS, each engaged in conduct that violated eight sections of the DPM,3 by accepting from the Mayor of Sosua Dominican Republic free transportation and meals in exchange for taking steps to ensure that valuable FEMS fire equipment was donated to Sosua, without following the proper procedures for disposing of surplus FEMS equipment and donating District property. The OIG investigation also revealed that Robin Booth, Property Disposal Specialist, OCP, engaged in conduct that violated three sections of the DPM,4 by underestimating the value of the initial fire truck and expediting Peaceoholics' application for surplus property. Finally, the OIG investigation revealed that Andrew "Chip" Richardson III, former General Counsel, EOM violated one section of the DPM.5 OIG investigators interviewed District government personnel involved in donating fire equipment to Sosua, including the following employees of FEMS, OCP, the Office of the Attorney General for the District of Columbia (OAG), and the EOM:
OIG investigators also interviewed non-District government employees including:
Finally, OIG investigators reviewed pertinent records including FEMS Apparatus Replacement Guidelines, the FEMS Property Disposal Procedure, OCP Procedural Guidelines for the Disposition and Disposal of District of Columbia Government Owned Excess and Surplus Personal Property (OCP Surplus Property Guidelines), OCP Personal Property Management Manual, Federal Surplus Property Assistance Program applications and related documents submitted by Faith Productions and Peaceoholics, as well as electronic mail messages (e-mails) sent and/or received by some of the above-listed persons. I. PROCEDURES GOVERNING DISPOSAL OF SURPLUS PROPERTY
FEMS has Apparatus Replacement Guidelines (undated), which provide that an Apparatus Evaluation Team, consisting of the Vehicle Coordinator, General Foreman, three Technicians from the Operations Division, and a Mechanic are required to conduct an annual inspection and evaluation of apparatus nearing replacement. Page 1 of the Apparatus Replacement Guidelines states that "[f]actors influencing apparatus replacement are age, mileage, engine hours, cost per mile, and overall condition of the apparatus; the greatest weight is placed on mileage and age." In particular, the Apparatus Replacement Guidelines provide that every spring, the Apparatus Evaluation Team shall inspect all heavy apparatus 5 years and older and all light apparatus at 36,000 miles or greater using the appropriate evaluation form and make "recommendations for improving the performance or extending the expected life span of the apparatus." Id. at 2. The Apparatus Replacement Guidelines provide that frontline heavy apparatus (such as pumper and other trucks) should be replaced when they are between 5 and 8 years-old and reserve heavy apparatus should be replaced when they are between 9 and 12 years-old. Frontline light apparatus (such as ambulances) must be replaced when they have acquired between 45,000 and 60,000 miles, and reserve light apparatus should be replaced when they have acquired between 70,000 and 90,000 miles (Exhibit 1).
The FEMS Property Disposal Procedure, Vehicle Property Disposal Action (PDA), Apparatus Division (Mar. 2007) document, states that the Deputy Fire Chief at the Apparatus Division shall determine whether an FEMS vehicle is in need of disposal. In addition, all of the useful equipment on the vehicle shall be removed as well as the license plates and all agency markings. When all disposal procedures have been executed, the Deputy Fire Chief of the Apparatus Division completes a PDA form and the vehicle is removed from the vehicle roster and transported for disposal (Exhibit 2).
The OCP Surplus Property Guidelines6 provide that each District agency should designate an administrative or supervisory employee as the agency's Accountable Property Officer (APO) to serve as a liaison to OCP's Personal Property Division (PPD) for the disposition of property. Further, when District agencies want to dispose of excess personal property, the APO should prepare a PDA form and submit it to PPD. The PPD then surveys the property identified on the PDA and issues a disposition decision. The Agency's APO is expected to make the final disposition of the property according to PPD's instructions (Exhibit 3).
The governing authority for District government personal property is outlined in the OCP Personal Property Management Manual § 2632.7 Specifically, the PPMM establishes regulations for use of unserviceable property, and un-saleable and saleable surplus property. The PPMM, Section 2632.1 (P)(1), states that accountable property that has become unserviceable may be salvaged for construction or repair of other property. Section 2632.1 (Q)(3) provides that unsaleable surplus, e.g. property without usable life or inherent value, is destroyed by consignment to a landfill or other means. Saleable surplus property, if it retains value, is disposed of by competitive bid, negotiated sale, or trade-in for like property. Id. § 2632.1 (Q)(4). According to the OCP website, District surplus property - including Police, Fire, and EMS vehicles - is auctioned on-line at http://www.liquidation.com.
The OCP website also provides information about the Federal Surplus Program, a state-run, federal surplus program for the donation of federal surplus property to public, tax-supported entities and eligible, private nonprofit organizations (Exhibit 4). The Federal Surplus Program applies to federal surplus property PPD receives and redistributes to D.C. agencies and nonprofits.8 It does not apply to FEMS fire trucks and ambulances that are procured from vendors with District government funds. At the time of the events at issue, D.C. law did not address surplus property donations to nonprofits.9 Eligible nonprofit organizations that wish to participate in the program must submit an application that includes documentation showing the organization's status and a written description of all program services and/or activities, facilities, staff, population or enrollment, fees, and funding sources, etc. The organization also must submit copies of its 501(c) (3) letter of exemption under the Internal Revenue Service tax code, articles of incorporation, and current by-laws. The applicant may include a Wish List (which is a listing of the types and kinds of equipment, vehicles, or other items) that describes the manner in which the requested property will be used. Also, when the nonprofit organization identifies surplus property it wants, the nonprofit organization's APO must complete OCP's Request for Excess Property form.The application includes a certification that the donee of a nonprofit organization must sign stating that:
The certification also requires that the donee agree to the federal condition that the property will be used for the purposes for which acquired within 1 year of receipt and continued in such use for 1 year. If not, the donee must return the property to SASP10 or otherwise make the property available for transfer or disposal by SASP. For all passenger motor vehicles and items that cost $3,000 or more, the certification states that the "property shall be used only for the purpose(s) for which acquired and for no other purpose(s)" for 18 months, unless SASP sets a further period of restriction for items of major equipment. Id. If the property is not used as required, "then title and right to the possession of such property shall, at the option of the SASP, revert to the SASP of the District of Columbia and the donee shall release such property to such person as the SASP shall direct." Id. Finally, during the applicable period of restricted use, the donee cannot dispose of the property, or remove it permanently for use outside the District of Columbia without the prior approval of the SASP (Exhibit 5).
According to D.C. Code § 2-505(c):
Wilbur Giles, former Chief of Staff, OCP,11 told OIG investigators that OCP has the authority to donate District government property to nonprofit organizations located in the District of Columbia. The organization, however, must maintain the property in the District for a minimum of 18 months unless an emergency rulemaking is drafted and approved by the Chief Procurement Officer. According to Mr. Giles, the emergency rulemaking is a standard process for any donation outside of the District where the property would remain with a non-District agency or nonprofit organization Once the Chief Procurement Officer approves the emergency rulemaking, the nonprofit has 90 days from the date of approval to deliver the property to its final destination. Nancy Hapeman, General Counsel, OCP, further explained to OIG investigators that when a District agency seeks to donate property for use outside the District of Columbia, the District government must publish an emergency rulemaking. Emergency rulemaking is authorized by sections 202 and 204 of the District of Columbia Procurement Practices Act of 1985 (PPA), effective February 21, 1986, D.C. Law 6-85, D.C. Code §§ 2-302.02 and 2-302.04 (2006), and by Mayor's Order 2002-207 (December 18, 2002). Ms. Hapeman told OIG investigators that OCP does not require an explanation for the donation, only the identifiers to place in the preamble. The preamble is the "quasi-justification" for the rule, which identifies the name of the nonprofit organization and the destination (outside of the District of Columbia) for the property. According to Ms. Hapeman, the emergency rulemaking supersedes the requirement that the property be used by the donee in the District of Columbia for 18 months. Once the emergency rulemaking is drafted and approved by the OCP Director, it is sent to Wayne Witkowski, Chief, Legal Counsel Division, OAG, for review as to legal sufficiency. If Mr. Witkowski certifies the emergency rulemaking as legally sufficient, the emergency rulemaking is published on OCP's website and in the D.C. Register. The emergency rulemaking remains in effect for up to 120 days from the date of adoption, unless superseded by another rulemaking notice or by publication of a Notice of Final Rulemaking in the D.C. Register. II. FINDINGS OF FACT
In an interview with OIG investigators, Mr. Walker stated that he visited Sosua, Dominican Republic in October 2007 and observed that the town's fire truck and ambulance were old and outdated. He offered to help facilitate the donation of vehicles, including a fire truck and an ambulance, in exchange for Mayor Cespedes' assistance with a boxing tournament. The tournament, scheduled for November 22, 2007, was to be held in Sosua and featured District of Columbia at-risk youth as participants. Mr. Walker and Mayor Cespedes also discussed having Sosua and the District of Columbia become sister cities.12 Mayor Cespedes also told OIG investigators that Mr. Walker offered to help him acquire a fire truck and ambulance because Sosua's equipment was outdated and in poor condition. Mr. Walker told OIG investigators that in early November 2007, Mayor Cespedes visited the District of Columbia and requested a meeting with then Mayor Adrian Fenty. Patricia Elwood, Director of Protocol and International Affairs, Office of the Secretary, EOM, who manages delegation, dignitary, and ambassador visits, told OIG investigators that she received a request from a church group for the Mayor of Sosua to meet with Mayor Fenty. She said that the request was unusual because it was an unofficial request and, in fact, does not appear on the list of official requests Ms. Elwood provided to the OIG. Ms. Elwood, however, arranged for Mr. Jannarone, who at that time worked for DMPED, to attend the meeting with Mayor Cespedes on Mayor Fenty's behalf.13 The meeting, which was held on November 14, 2007, was attended by several people including: Mayor Cespedes; Jorge Espaillat, Mayor Cespedes' assistant; Mr. Jannarone; Ms. Elwood; Mr. Walker; Stephanie Scott, Secretary of the District of Columbia, EOM; and Steve Moore, President/CEO, Washington D.C. Economic Partnership. According to Ms. Elwood, the attendees addressed economic development and possible assistance from the District government. Mr. Jannarone, in an interview with OIG investigators, stated that Mayor Cespedes inquired at the meeting about surplus equipment and specifically asked Mr. Jannarone if the District would donate a tire truck and ambulance to Sosua. Mr. Jannarone told OIG investigators that he agreed to be of assistance and subsequently made several telephone calls, ultimately speaking to Jerome Henry, Property Disposal Specialist, OCP, to identify which vehicles to donate to Sosua.14 Mr. Jannarone also said that he was told that Robin Booth, Property Disposal Specialist, OCP, could answer questions about the process for obtaining surplus equipment and placement on an approved list of nonprofit organizations. Mr. Jannarone said that he provided Mr. Walker with Ms. Booth's contact information and shortly thereafter, OCP approved Mr. Walker's application.
E-mails obtained by the OIG from Peter Nickles, former Attorney General for the District of Columbia, show that Lamont Harrell, former EOM employee, sent an e-mail dated November 26, 2007, to Dennis Rubin, then Chief, FEMS, asking about the disposition of fire trucks and other equipment that no longer are "in commission" and whether "out of commission" trucks and equipment could be donated. Chief Rubin replied in an e-mail later that day that when FEMS is finished with a vehicle, it is turned over to OCP for survey, removal from the inventory list, and public auction "in an attempt to get the best return on the City investment applying the funds to the General Fund." Chief Rubin also wrote in the November 26, 2007, e-mail to Mr. Harrell that questions about donating equipment should be directed to OCP and the OAG. He also pointed out that there might be liability issues and laws about the disposal of capital equipment that need to be considered before it may be given away. Chief Rubin copied a number of people on that email, including David Gragan, then Chief Procurement Officer, OCP, and Linda Singer, then Attorney General, OAG. Mr. Harrell responded that he would pass this information on to Mr. Jannarone "to see if this is something we have an intent to pursue" (Exhibit 6). On November 27, 2007, Mr. Gragan responded to Mr. Harrell's e-mail, stating that Wilbur Giles manages the OCP surplus property division and asked Mr. Giles, who is included on the e-mail, to provide pertinent information. Mr. Giles sent Mr. Harrell an e-mail on November 28, 2007, asking Mr. Harrell to call him so they could discuss the details. In an e-mail dated November 30, 2007, Mr. Giles told Mr. Jannarone that Mr. Henry is checking for a truck and ambulance (Exhibit 6). In a late December 2007 e-mail chain entitled "Eng. 194," sent to Mr. Jannarone and other District officials, Chief Rubin wrote that he "will check and see if that Engine is being surplused out of the fleet? If so, I am sure that we have the 'life time' maintenance records. Also, we[re] you able to get clearance from the AG's Office to donate a vehicle? We will get back shortly" (Exhibit 7).
Mr. Jannarone told OIG investigators that in late December 2007, he visited Sosua, for the first time, with Jason Willock, then Project Manager, DMPED, and Sinclair Skinner to attend a bachelor party. Mr. Jannarone and Mr. Skinner previously were Advisory Neighborhood Commissioners and developed a friendship. Mr. Jannarone told OIG investigators that this was his first trip to the Dominican Republic, that it was planned by Mr. Willock and included 15 other friends, and that he paid for the trip using his personal funds. Mr. Jannarone said that his trip was arranged prior to him attending the November 14, 2007, meeting. Mr. Walker also said that when he visited Sosua at that time, he introduced Mr. Skinner and others to Mayor Cespedes, at Mr. Jannarone's request. Mr. Jannarone responded to Mr. Giles's November 30, 2007, e-mail on January 29, 2008, after his first trip to Sosua, stating that he found a nonprofit organization to transport the truck and asking for details on the "official process." Mr. Giles responded to Mr. Jannarone by e-mail on January 30, 2008, requesting that Mr. Jannarone provide the point-of-contact for the nonprofit organization to Mr. Henry. Mr. Giles also wrote that if:
Mr. Walker said that in early 2008, he contacted Ms. Booth, who provided him with the Federal Surplus Program application. According to Mr. Walker and Ms. Booth, Ms. Booth also conducted a site visit at Faith Productions to see how and where the organization would use the surplus property. Documents obtained from OCP show that Faith Productions'' submitted a Federal Surplus Property Assistance Program application dated March 15, 2008. That document, which is one page, indicates that certain supplemental materials were included and a copy of the organization's tax-exempt 501(c)(3) status, a description of its program services and/or activities, and articles of incorporation are attached. It does not, however, include a statement describing how the requested property will be used in the authorized programs. The application was approved by Mr. Giles on April 14, 2008. In June 2008, Mr. Walker and Mr. Henry visited a location where decommissioned FEMS vehicles are stored in search of a fire truck and an ambulance. Fire truck #194 and an ambulance, according to Mr. Walker, were in poor condition, and chosen to be donated to Sosua. Mr. Walker explained that by July 2008, he had contacted Councilmember Tommy Wells to inquire about a shipping company for the vehicles, and Councilmember Wells gave him the name of Sea Cargo. Mr. Walker contacted the shipping company and received a verbal price quote, but was told that the vehicles would have to be drivable. Because fire truck #194 did not have an engine, the shipping company would not transport the truck. Mr. Walker told OIG investigators that shortly after he learned that fire truck #194 could not be transported by the shipping company, he met with Mr. Jannarone to express the need for better equipment.16 Mr. Jannarone informed the OIG that he then contacted Mr. Espaillat and explained that the fire truck needed $50,000 in repairs before it could be shipped. According to Mr. Jannarone, Mr. Espaillat said that Sosua would accept anything and could get it fixed for a lower price in Sosua. Mr. Jannarone said that he told Mr. Espaillat that because Mr. Walker was unable to find a transport company for the fire truck, Mr. Jannarone was to continue to search for another vehicle to donate to Sosua.
In an August 27, 2008, e-mail to Deputy Fire Chief Gill, Mr. Jannarone asks:
On November 25, 2008, Deputy Fire Chief Gill responded to that e-mail stating that he "will have a tire truck going out of service within the next 60-75 days." In his interview with OIG investigators, Deputy Fire Chief Gill said that FEMS does not have a written policy regarding the method of determining which emergency vehicles are to be decommissioned and disposed of as excess property.17 Deputy Fire Chief Gill stated that he had authority at the time to decommission and dispose of surplus property by completing a PDA. In late November/December 2008, Deputy Fire Chief Gill contacted Mr. Jannarone to advise him that tire truck #S-104, located at 1103 Half St., SW, was in the process of being decommissioned. Shortly thereafter, Mr. Jannarone and Mr. Skinner met with Deputy Fire Chief Gill and inspected fire truck #S-104. During that visit, Mr. Jannarone asked Deputy Fire Chief Gill if he would provide training to Sosua fire officials on the donated truck. Mr. Skinner said that soon thereafter, he started researching various shipping companies to transport the fire truck and ambulance to Sosua and obtained a shipping cost estimate from American Purchasing and Distribution Company. According to Mr. Skinner, he had several conversations with Mr. Jannarone about the donation of a fire truck to Sosua and offered to help obtain the truck and facilitate the donation. Another PPD Specialist told OIG investigators that prior to the disposal of fire truck #S-104, the PPD Specialist had conducted a site visit and thought the fire truck was going to be auctioned.
A review of the FEMS PDA, dated June 15, 2006, revealed that 15 vehicles were listed, including fire truck #S-194.18 FEMS' APO's signature is on the PDA, which indicates that the vehicles were unserviceable and uneconomical to repair. The PDA requires listing the acquisition cost of each vehicle reported for disposal/transfer. The PDA instructions19 define acquisition cost as the cost to the original owner of the property at the time of purchase, or the cost to the owning/custodial agency of the property at the time of acquisition if any such cost were [sic] incurred." The PDA instruction form also states that if "the actual acquisition cost is unknown, provide the most intelligent and accurate estimate possible . . . ." The acquisition cost listed on the June 2006 PDA for tire truck #S-194 was $199,030.33. The PDA form was approved, but contains an illegible signature. An attached memorandum, dated June 30, 2006, however, shows that Mr. Henry received the titles to those vehicles on June 15, 2006 (Exhibit 8). A June 9, 2008, Request for Excess Property form shows that Mr. Walker requested fire truck #194 with an acquisition cost of $1,000 and an EMT ambulance (unknown vehicle number) with an acquisition cost of $1,000. The request form was signed by Ms. Booth on July 15, 2008 (Exhibit 9). Ms. Booth acknowledged to OIG investigators that the June 2006 PDA lists the acquisition cost for fire truck #S-194 as $199,030.33. The same PDA lists several ambulances, which vary in acquisition cost from $60,648.48 to $75,132. She also acknowledged that Mr. Walker's Request for Excess Property form lists the acquisition costs for fire truck #S-194 and the unidentified ambulance at $1,000 each. Ms. Booth told OIG investigators that she did not see the June 2006 PDA for the fire truck and the ambulance before she filled out the Request for Excess Property form, so she made up the total acquisition cost for each vehicle when she filled out the Request for Excess Property form. Ms. Booth also told OIG investigators that Mr. Walker had described the truck as old and rusty, but denied that he or anyone else asked her to falsify information on any OCP forms.20
The PDA for fire truck #S-104, dated December 17, 2008, indicates that the FEMS' APO, requested to transfer the vehicle to OCP PPD because it was uneconomical to repair. The acquisition cost for fire truck #S-104 is listed as $240,895. On February 25, 2009, Latrina Gross, PPD, OCP, approved and signed the PDA (Exhibit 10). Deputy Fire Chief Gill is listed as the contact person on the PDAs for fire truck #S-104. The PDA for ambulance #S-671, dated March 11, 2009, requests transfer to OCP PPD because it was unserviceable, but was not signed by a FEMS APO. The PDA lists an acquisition cost totaling $75,132. On March 12, 2009, Ms. Gross approved and signed the PDA form (Exhibit 11). Deputy Fire Chief Gill is listed as the contact person on the PDAs for ambulance #S-671. A March 16, 2009, Request for Excess Property form shows that Mr. Moten requested fire truck #S-104 with an acquisition cost of $240,895 and an E-450 ambulance with an acquisition cost of $75,132. Ms. Booth also signed that request on March 16, 2009 (Exhibit 12).
In early January 2009, Deputy Fire Chief Gill received an e-mail from Mr. Jannarone regarding upcoming travel to the Dominican Republic for a Super Bowl party. In that same e-mail, Mr. Jannarone invited Deputy Fire Chief Gill to attend the party and provide training on operating fire truck #S-104 and the ambulance for the donation. Later, Deputy Fire Chief Gill telephoned Mr. Jannarone and asked if the District government was paying for his travel expenses to the Dominican Republic. Deputy Fire Chief Gill told OIG investigators that Mr. Jannarone informed him in that telephone conversation that "we are taking care of room and board." Subsequently, Deputy Fire Chief Gill submitted to Alfred Jeffery, Assistant Fire Chief, Support Services, FEMS, a request for paid administrative leave for the trip, to provide training to Sosua Fire Department personnel in the Dominican Republic.21 Assistant Fire Chief Jeffery also signed an employee authorization training form for Deputy Fire Chief Gill (Exhibit 13). There is no evidence, however, that he approved an out-of-state travel request for Deputy Fire Chief Gill (FMS 431). Assistant Fire Chief Jeffery told OIG investigators that he authorized Deputy Fire Chief Gill to conduct training in Sosua for the fire truck that was to be donated. He also told OIG investigators that FEMS does not have an approval process to provide training. OIG investigators determined that the District government paid for Deputy Fire Chief Gill's travel, including his salary, airfare ($465.30), and per diem ($364.00) to cover his meals.22 A review of Mr. Jannarone's personal credit card statement shows that he redeemed 25,000 miles from his credit card points to offset the cost of purchasing his plane ticket to the Dominican Republic.23 Mr. Jannarone, Mr. Skinner, and Deputy Fire Chief Gill went to the Dominican Republic from January 29, 2009, through February 4, 2009. David Anderson (a friend of Mr. Jannarone's)24 and Jonathan Bolden (a friend of Deputy Fire Chief Gill's and a volunteer fire Captain for Prince George's County, Maryland) also went on the trip. Deputy Fire Chief Gill told OIG investigators that when he and Mr. Bolden arrived at the airport in the Dominican Republic, they were greeted by Mayor Cespedes and Mr. Espaillat, who transported them to a villa, which he believed was not open to the general public.25 After arriving at the private villa, they were greeted by Mr. Jannarone, Mr. Skinner, and Mr. Anderson. That same night, Mayor Cespedes and Mr. Espaillat treated them to dinner. OIG investigators were unable to estimate the cost of transportation to the villa and dinner. Mr. Skinner stated that while in Sosua, he and Mr. Jannarone met with Mayor Cespedes and Mr. Espaillat. During that meeting, Mr. Jannarone provided updates and photographs of the fire truck and ambulance that had been selected for donation. Financing for transportation of the fire truck and ambulance also was discussed. (On the shipping company invoice, the shipping cost was estimated to be $11,630.00.) According to Mr. Skinner, Mr. Espaillat was trying to gather as much money as possible to pay for transporting the vehicles. Mr. Skinner also stated that 2 days before he left Sosua, Mr. Espaillat gave him $10,000 in cash for the transportation of the fire truck and ambulance.26 Mr. Skinner recalled signing a receipt for the cash, but said that Mr. Espaillat kept the original and that there were no copies. That same day, Mr. Skinner contacted Mr. Jannarone and informed him that Mr. Espaillat gave him money to pay a portion of the transportation costs. Mr. Skinner admitted to OIG investigators that, while in Sosua, he spent some of the money he received from Mr. Espaillat for the transportation costs. He said that he did not remember how much he spent, but he felt that he was justified in spending some of the money because he was going to contribute any additional monies that were needed to cover the transportation costs. Mr. Skinner also told OIG investigators that when he returned to the United States, he obtained the remainder of the money that was necessary for shipment, from his Liberty Industries company bank account. A Super Bowl party was held at the villa on the fourth day. Deputy Fire Chief Gill told OIG investigators that there were male and female attendees and he believed Mr. Espaillat also came to the party. On the fifth day in Sosua, Mr. Jannarone and Mr. Skinner asked Deputy Fire Chief Gill and Mr. Bolden to travel with them to Dajabon, Dominican Republic. Deputy Fire Chief Gill declined because he and Mr. Bolden planned to visit Sosua's City Hall, the Mayor's Office, and the Emergency Preparedness building. Later that day, when Deputy Fire Chief Gill and Mr. Bolden returned to the villa, they noticed several plaques on a table. Deputy Fire Chief Gill asked Mr. Jannarone about the plaques and Mr. Jannarone replied that they each received a plaque because the City of Dajabon hosted a ceremony on their behalf and Dajabon is also in need of FEMS apparatus and equipment. A review of Deputy Fire Chief Gill's notes from the trip indicate that he spent a considerable amount of time evaluating Sosua's fire prevention/containment infrastructure and needs (such as the number of hydrants, water pressure, etc). Although his notes show that he discussed the importance of formalized training as part of his assessment, they do not indicate that he provided any training (Exhibit 14). In an e-mail chain dated February 10, 2009, from Mr. Jannarone to Deputy Fire Chief Gill regarding the timeframe for the delivery of the fire truck, Mr. Jannarone asked whether Deputy Fire Chief Gill was ready to go back to Sosita. Deputy Fire Chief Gill responded, "Nut of course, I am in the process of acquiring some turnout gear along with some tools/hose. I am als getting the ambulance taken care of." Mr. Jannarone then replied, "[c]an we get some equipment for Dajabon also?" Deputy Fire Chief Gill responded, "What's in the works may take a minute We are ordering 5 new units so this may be about 60-90 days out."27
In early February 2009, Mr. Skinner called Andrew "Chip" Richardson III, then General Cou to the Mayor, EOM. Mr. Richardson told OIG investigators that Mr. Skinner's initial call as who could assist him in obtaining a fire truck for donation overseas. Mr. Richardson referrer Mr. Skinner to Thorn Pozen, former D.C. Ethics Counselor, OAG. Mr. Richardson said that later received an update from either Mr. Skinner or Mr. Pozen, informing him that OCP han surplus property. Mr. Richardson received another telephone call from Mr. Skinner asking who at OCP could facilitate the donation process. Mr. Richardson referred Mr. Skinner to Mr. Giles. Mr. Richardson told OIG investigators that he also spoke with Mr. Giles, who explained the process for obtaining surplus property and the emergency rulemaking requirements for an approved District 501(c)(3) nonprofit organization. Mr. Giles also referenced a previous attempt to donate a fire truck with Faith Productions. Mr. Richardson, however, said that he did n recall Mr. Giles' explanation as to why the donation did not occur. Mr. Pozen told OIG investigators that during multiple telephone conversations, Mr. Skinner asked about the District's process for donating surplus property to a nonprofit organization. At some point in their discussions, Mr. Skinner indicated that he was assisting a nonprofit organization with the donation of a fire truck and ambulance. In addition, Mr. Pozen received from Mr. Skinner, a draft of a document Mr. Skinner created to assist with the process. In an email dated February 19, 2009, to Mr. Giles, Mr. Pozen wrote:
Mr. Pozen told OIG investigators that he researched the rules and discovered that OCP handles donations. He subsequently contacted Ms. Hapeman to ask about surplus property. Ms. Hapeman told OIG investigators that she did not remember if Mr. Pozen specifically mentioned the fire truck, but that she referred Mr. Pozen to Mr. Giles, who could outline the procedures for donating surplus property. Ms. Hapeman also received an e-mail from Mr. Richardson asking if anyone had requested that she draft an emergency rulemaking. Ms. Hapeman commented that the e-mail did not contain any details as to the name of the nonprofit organization and/or the type of property. Mr. Giles told OIG investigators that on February 19, 2009, he received from Mr. Pozen an email and a telephone call asking how to donate FEMS equipment to the Dominican Republic. Mr. Giles explained to Mr. Pozen that he needed a D.C. nonprofit organization to which to donate the property because the final, destination for the property was an overseas entity. He also explained that this required an emergency rulemaking drafted and approved by David Gragan, then Chief Procurement Officer, OCP. Mr. Giles said that in a conversation with Mr. Pozen, he was informed that Peaceoholics, the nonprofit organization, was to receive the donation. Mr. Giles advised Mr. Pozen that he would check with Ms. Booth to determine whether Peaceoholics was a member of the Federal Surplus Program. If not, then Peaceoholics would have to be vetted. Mr. Giles believed that Mr. Richardson listened (while in the same room with Mr. Pozen) to his conversation because shortly after he explained the process to Mr. Pozen, he received an e-mail from Mr. Richardson providing a contact number for Mr. Moten. Mr. Giles subsequently forwarded that e-mail to Ms. Booth and asked her to "let him know if this non-profit [Peaceoholics] is registered with the District." The e-mail said that if the organization was not on the list, then Ms. Booth needed to contact Mr. Moten to complete the Federal Surplus Property application. Mr. Moten informed OIG investigators that he received a telephone call from Mr. Skinner and later met with Mr. Skinner and Mr. Jannarone. At the meeting, they discussed donating equipment to the Dominican Republic and asked for Peaceoholics' assistance. Mr. Moten agreed because he assumed Peaceoholics was selected because of its ties to the District community. He also was advised to contact Ms. Booth to assist with the application process.29
Ms. Booth contacted Mr. Moten to assist Peaceoholics with the application. Documents obtained from OCP show that Peaceoholics submitted an application dated February 24, 2009. The one-page application has the following materials attached: 1) a copy of the tax-exempt 501(c)(3) status; 2) a description of program services and/or activities; 3) Peaceoholics' articles of incorporation; 4) staff resumes and qualifications; 5) documented sources of grant funding; and 6) a statement describing how the requested property will be used in the authorized programs. Mr. Giles approved the application on March 2, 2009. Ms. Booth told OIG investigators that she conducted a site-visit at Peaceoholics to see how and where the organization would use the surplus property. Ms. Booth indicated that she was not aware that Peaceoholics had expressed an interest in a fire truck and ambulance when she submitted her approval of the application to Mr. Giles. Several weeks after returning from Sosua in February 2009, Deputy Fire Chief Gill contacted Mr. Skinner, who informed him that approval for the donation was still underway and asked Deputy Fire Chief Gill for the dimensions of the fire truck and ambulance to relay to the shipping company. A week later, Deputy Fire Chief Gill received from Mr. Skinner an e-mail regarding OCP's emergency rulemaking and a telephone call introducing him to Mr. Moten.
In early March 2009, Mr. Giles requested that Ms. Hapeman draft an emergency rulemaking for the donation. Ms. Hapeman explained to OIG investigators that she tasked Jody Harrington, Assistant General Counsel, OCP, to draft the emergency rule. In an e-mail dated March 2, 2009, from Ms. Hapemen to Ms. Harrington, Ms. Hapeman stated that "Wil needs an emergency rulemaking to send a fire truck to the Dominican Republic through Peaceoholics. Could you please prepare this as a priority? It can be modeled on the rules we did for the stuff donated to Addis Ababa a few years ago." Subsequently, Ms. Hapeman reviewed the draft and, after Mr. Gragan signed it, sent it to Mr. Witkowski. On March 6, 2009, Mr. Witkowski received from Ms. Hapeman a rulemaking transmittal form and OCP notice of emergency rulemaking document to be reviewed for legal sufficiency. On March 9, 2009, he tasked Pollie Goff, Senior Assistant Attorney General, Legal Counsel Division, OAG, to conduct the review. According to Mr. Witkowski, Ms. Goff prepared a memorandum addressing the legal sufficiency review of the emergency rulemaking. Ms. Goff told OIG investigators that she was chosen because of the review she conducted in 2005 for the donation of books to Ethiopia. Ms. Goff read the preamble and verified that the Procurement Practices Act of 1985 and Mayor's Order 2002-207 were properly cited in the preamble. Subsequently, she reviewed the emergency rulemaking and said that she may have spoken with Ms. Hapeman for clarification. Ms. Goff then drafted the legal sufficiency memorandum for Mr. Witkowski's approval. On March 11, 2009, Mr. Witkowski examined the draft and concurred with Ms. Goff's assessment. Mr. Witkowski told OIG investigators that no research was done to determine if an emergency existed in Sosua. He explained that the emergency rulemaking has a broad standard based on the issuing agency's plausible and reasonable decision. In a later interview, Mr. Witkowski acknowledged that the fire truck and ambulance were not federal surplus property but said that if a District agency has the authority to adopt an emergency rule then he allows it to do so. In addition, he said that the Procurement Practices Act §§ 202 and 204 give OCP the authority to donate supplies for public welfare both within and outside the District of Columbia. On March 11, 2009, Mr. Witkowski examined the draft and concurred with Ms. Goff's assessment. Mr. Witkowski told OIG investigators that no research was done to determine if an emergency existed in Sosua. He explained that the emergency rulemaking has a broad standard based on the issuing agency's plausible and reasonable decision. In a later interview, Mr. Witkowski acknowledged that the fire truck and ambulance were not federal surplus property but said that if a District agency has the authority to adopt an emergency rule then he allows it to do so. In addition, he said that the Procurement Practices Act §§ 202 and 204 give OCP the authority to donate supplies for public welfare both within and outside the District of Columbia. After examining the memorandum, Mr. Witkowski initialed it, signed the emergency rulemaking transmittal form, and forwarded the documents to Ms. Hapeman. Mr. Witkowski stated that he has final authority to approve an emergency rulemaking and is not required to seek additional approval from the Attorney General. Subsequently, the emergency rulemaking was published (Exhibit 15). The text of the rulemaking does not state the type of equipment to be transferred, the date and method of transfer, or the reason for an emergency. In addition, the truck and ambulance were already in transport to Sosua before the rulemaking was published. In Mr. Moten's interview with OIG investigators, he said that on March 13, 2009, Mr. Skinner wrote Peaceoholics a business check issued from Mr. Skinner's company, Liberty Industries, LLC, in the amount of $11,630 to finance the shipping of the fire truck and ambulance to Sosua, Dominican Republic. Mr. Skinner also said that he wrote a check from his company to Peaceoholics for shipping expenses. According to the Seaboard Marine Letter of Intent shipping document, dated March 25, 2009, both the fire truck and the ambulance were shipped to Miami, Florida and were awaiting shipment to their final destination in the Dominican Republic.30
In late March 2009, after the controversy concerning the donation of the fire truck and ambulance was published in the media, Mr. Richardson and Mr. Pozen were tasked by Mr. Nickles to conduct a review of what had transpired and assess any possible improprieties. When OIG investigators interviewed Mr. Nickles, he said that he instructed Mr. Moten to have the fire truck and ambulance returned to the District. Mr. Moten also told OIG investigators that Mr. Nickles instructed him to have the vehicles returned from Miami where they were docked at the time. Mr. Moten explained that the total shipping expenses were not exhausted because the vehicles never reached their final destination. Therefore, the vehicles were returned and the shipping company refunded Peaceoholics. A review of the shipping company invoice dated March 31, 2009, shows that the fire truck and ambulance were being returned to Peaceoholics. Because the vehicles never reached their final destination, the invoice indicated a credit of $1,190.00, which Mr. Moten retained. Mr. Moten said that he hoped to complete the donation at a later time.31 According to Mr. Pozen, during the review, he obtained documentation from OCP, FEMS, and EOM. He also interviewed Mr. Jannarone, Deputy Fire Chief Gill, and Ms. Elwood. Mr. Richardson stated that he spoke with Mr. Skinner, Mr. Jannarone, Mr. Moten, Mr. Walker, and Deputy Fire Chief Gill. Mr. Richardson admitted to the OIG that he and Mr. Skinner are fraternity brothers and that Mr. Skinner retained him as legal counsel while he was in private practice prior to joining the D.C. government.32 Mr. Richardson further informed the OIG that he did not ask Mr. Skinner why he traveled to Sosua, how he became involved in the donation, or why Mr. Skinner was involved in District government business. When the OIG asked Mr. Richardson whether he disclosed to Mr. Nickles his previous relationship with Mr. Skinner, Mr. Richardson stated that he did not because he did not believe he had a conflict. On April 3, 2009, Mr. Nickles issued a report based on Mr. Pozen and Mr. Richardson's findings, which concluded that the disposition was "legal and totally proper." During the OIG investigation, the Council conducted its own investigation into the donation of the fire truck and ambulance. The Council's reports determined inter alia, that standard operating procedures were not followed, and non-governmental actors were able to obtain a fire engine and ambulance at no cost for the exclusive purpose of re-donating the property to a foreign government. The Council's investigation included recorded depositions of Ms. Booth, Mr. Giles, Deputy Fire Chief Gill, Mr. Jannarone, Mr. Pozen, Mr. Richardson, Mayor Cespedes, Mr. Walker, Mr. Moten, and Mr. Skinner. Although the OIG made several requests for copies of all of the recorded depositions, the Council did not immediately provide them. Instead, the Council provided the OIG with copies of the available deposition tapes in February 2010, after it had publicly released its report of investigation. Ultimately, however, the Council was unable to provide the OIG with a copy of Mr. Pozen's deposition because there had been a technical error in its recording. On several occasions throughout this investigation, the OIG discussed the investigation with prosecutors from the United States Attorney's Office for the District of Columbia (USAO). On November 10, 2010, the USA() indicated that there was insufficient evidence for prosecution. ANALYSIS AND CONCLUSIONS
The OIG investigation revealed that no District government employee properly assessed the donation to Sosua and determined that an emergency, necessitating this donation, existed, or why this donation required expediting. In addition, no District government employee made a determination that it was in the District's interests to forego the money the District would have received from auctioning these vehicles, in the usual manner and according to the PPMM. Instead, OCP requested an emergency rulemaking and the OAG reviewed and approved the issuance. Subsequently, when issues arose as to whether this donation was proper, the ()AG determined that the actions of various District government employees, including OAG attorneys, had been appropriate. The ()AG subsequently issued a report stating that the disposition of these trucks had been "legal and totally proper." Based on the OIG investigation, however, the OIG finds that Mr. Pozen and Mr. Richardson should have been recused or recused themselves. Because each had participated in attempting to effectuate the donation of the vehicles to Sosua, there appears to have been an inherent conflict of interest for each of them to then investigate any matters relating to the donation. Such conduct could create at least the appearance that either or both of them had a bias leading them to conclude that the donation was proper. With respect to Mr. Pozen, because he participated in the attempt to effectuate the donation in connection with his position as an OAG employee, Mr. Nickles should have been aware of the possible conflict of interest. Mr. Richardson, however, had an additional conflict of interest, unrelated to his District position, because he had both a personal and previous professional relationship with Mr. Skinner. Mr. Richardson should have disclosed to Mr. Nickles his personal and previous professional relationship with Mr. Skinner, which he did not do. Further, during the inquiry Mr. Richardson conducted with Mr. Pozen, Mr. Richardson interviewed Mr. Skinner and failed to ask pertinent questions about his involvement in the donation and District government business, such as why or how he became involved in the donation. Therefore, Mr. Richardson's conflicts undermined the integrity of the investigation and provided a reasonable basis to question the objectivity of its findings.
The OCP Chief of Staff and General Counsel and attorneys assigned to the OAG Legal Counsel Division failed to exercise proper oversight of the rulemaking process. The OAG Legal Counsel Division, as well as OCP personnel, failed to realize that the Federal Surplus Program only applies to the disposition of federal surplus property. Here, the OAG Legal Counsel Division should have known that the Federal Surplus Program did not apply to FEMS fire trucks and ambulances because they were procured from vendors with District government funds. In addition, nowhere in the paperwork to support the donation of these vehicles is there a factual justification for an emergency. Even a cursory review of this matter by OAG and OCP personnel should have uncovered that there was, in fact, no emergency justification provided. Finally, both the OAG Legal Counsel personnel and the OCP General Counsel should have known that even if there was sufficient documentation of an emergency, Council approval of an amendment to the procurement regulations was required before the donation could occur. This lack of proper oversight allowed private parties, such as Mr. Skinner, inappropriately to influence the activities of District government employees. This further resulted in a waste of District government resources including travel expenses for and the salary of a District government employee, as well as a loss of revenue from the (delayed) sale of the vehicles.
The Federal Surplus Program governs the disposition of federal surplus property. The vehicles donated to Sosua, however, were not federal surplus property. Therefore, FEMS, OCP, and OAG erroneously relied on inapplicable provisions of the Federal Surplus Program. Accordingly, the District lacked the legal authority to effectuate the donation of District government property. In addition, even if the Federal Surplus Program rules had applied, the use of nonprofits Faith Productions and Peaceoholics appears to have been arranged specifically to effectuate the donation because neither entity had any interest in or use for the fire truck and ambulance. In addition, under the Federal Surplus Program, only public health and educational institutions are eligible to receive federal surplus property. Peaceoholics does not qualify for either category. Each entity, apparently, was to serve merely as a conduit to transfer ownership of the vehicles from the District government to Sosua. Therefore, it is unclear why Mr. Giles approved the applications submitted by Faith Productions and Peaceoholics. Further, it appears that the site visit by Ms. Booth to determine how and where the organization would use the vehicles was conducted simply to give the appearance that proper procedures were being followed. For, it already had been determined that the vehicles were to be shipped to Sosua and neither nonprofit organization would use or house the vehicles.
As evidenced by the Council's recent legislation, the Procurement Practices Reform Act of 2010 (D.C. Act 18-723), the D.C. Council could have assisted OCP, FEMS, and OAG to effectuate this donation lawfully. Indeed, D.C. Code § 2-302.05 (b) states that all modifications and additions to the District procurement regulations must be approved by the Council via a 60-day review period. Instead of following the law and partnering with the Council to amend the procurement regulations, all three agencies appear to have subverted the legislative process by failing to include the Council in the endeavor to make the donation. V. District Employees' Improper Actions A. Mr. Jannarone's Conduct Mr. Jannarone used his position as a DMPED employee to gain the assistance of other District employees to identify vehicles for donation. Specifically, Mr. Jannarone made telephone calls and sent e-mails to employees of EOM, FEMS, and OCP in an effort to select better quality vehicles. By doing so, Mr. Jannarone gave the erroneous impression that the donation of FEMS property was within his purview and responsibilities as an employee of DMPED. Further, while in Sosua, Mr. Jannarone participated in unofficial meetings with Mayor Cespedes and Mr. Espaillat to discuss the donation of FEMS property. According to Mr. Walker, Mr. Jannarone also asked him to introduce Mr. Skinner and others to Mayor Cespedes, which ultimately led to Mr. Skinner handling the transportation of the vehicles. As a result, Mr. Skinner received at least $10,000 from Sosua to cover these costs, some of which he used for his own personal benefit.Therefore, Mr. Jannarone's conduct created at least the appearance that he allowed his personal relationship with Mr. Skinner to influence his conduct regarding these donations and ultimately resulted in the selection of Peaceoholics as the conduit for these vehicles. Finally, although Mr. Jannarone did not travel to Sosua at District government expense, he accepted a free meal, transportation from the airport to the private villa, and a plaque from Dajabon officials. Because both Sosua and Dajabon officials apparently had interests that could be affected by the performance of his District government responsibilities. they were prohibited sources under the District's standards of conduct. Therefore. Mr. Jannarone accepted gifts (transportation, a meal, and a plaque) from prohibited sources (Mayor Cespedes and officials in Dajabon) while on this trip in violation of the DPM. Accordingly, the issues of whether Mr. Jannarone violated DPM § 1803.1 (a)(1) (Using public office for private gain); § 1803.1 (a)(2) (Giving preferential treatment to any person); § 1803.1 (a)(3) (Impeding government efficiency or economy); § 1803.1 (a)(4) (Losing complete independence or impartiality); § 1803.1 (a)(5) (Making a government decision outside official channels); and § 1803.1 (a)(6) (Affecting adversely the confidence of the public in the integrity of government); § 1803.2 (A District government employee shall not solicit or accept, either directly or through the intercession of others, any gift from a prohibited source); and § 1803.6 (An employee shall not accept a gift, present, or decoration from a foreign government) are SUBSTANTIATED. Fire truck #S-104 and ambulance #S-671, which ultimately were designated for donation to Sosua, were not identified for decommissioning and disposal until after Mr. Walker rejected fire truck #S-194 and the first ambulance. Deputy Fire Chief Gill, without regard to District decommission and disposal procedures, selected vehicles that had not yet been identified for decommission and disposal and expedited the process so that the vehicles were available for donation in less than 1 month, instead of within 60-75 days as he initially indicated. Accordingly, the OIG finds that he used his position as a FEMS employee to benefit a private interest and expedited the decommissioning and disposal of the vehicles without following proper procedure. After being invited by Mr. Jannarone to a Super Bowl party in Sosua, Deputy Fire Chief Gill informed FEMS that he had scheduled training for Sosua fire officials. This resulted in Deputy Fire Chief Gill obtaining authorized paid leave from FEMS for his time in Sosua. He then traveled to Sosua, at District government expense (costing more than $800 for his airfare and per diem), accepted a free meal and transportation from Sosua officials, and accepted a plaque from Dajabon officials. Therefore, he violated the DPM by accepting gifts from prohibited sources because Sosua and Dajabon were attempting to obtain property from the District, specifically FEMS. Accordingly, the issues of whether Deputy Fire Chief Gill violated DPM § 1803.1 (a)(1) (Using public office for private gain); § 1 803.1 (a)(2) (Giving preferential treatment to any person); § 1803.1 (a)(3) (Impeding government efficiency or economy); § 1803.1 (a)(4) (Losing complete independence or impartiality); § 1803.1 (a)(5) (Making a government decision outside official channels); and § 1803.1 (a)(6) (Affecting adversely the confidence of the public in the integrity of government); § 1803.2 (A District government employee shall not solicit or accept, either directly or through the intercession of others, any gift from a prohibited source); and § 1803.6 (An employee shall not accept a gift, present, or decoration from a foreign government) are SUBSTANTIATED.
Ms. Booth told OIG investigators that she did not see the PDA for fire truck #S-194 and the ambulance before she filled out the Request for Excess Property form for Faith Productions, so she made up the total acquisition cost for each vehicle. The PDA, however, was available and contained the actual acquisition cost of fire truck # S-194. Although the PDA instruction form also states that if "the actual acquisition cost is unknown, [the appropriate person should] provide the most intelligent and accurate estimate possible," Ms. Booth made no attempt to locate the June 2006 PDA form that showed fire truck #S-194's value and instead knowingly entered false information on the form that was material to the transaction. Because Ms. Booth is a Career Service employee, she may be disciplined under DPM § 1603.3(d), which states that "[a]ny knowing or negligent material misrepresentation on other document given to a government agency" constitutes cause for disciplinary action. With regard to fire truck # S-104, Ms. Booth was instructed by Mr. Giles to contact Mr. Moten and assist with his Federal Surplus Program application. Ms. Booth explained that she was not aware that Peaceoholics had expressed an interest in a fire truck and ambulance when she submitted the application paperwork to Mr. Giles for approval. As part of the application process, however, a site visit was conducted to determine how and where the organization was to use the surplus property. Ms. Booth must have known at the time of Peaceoholics' application that it was the designated nonprofit to serve as a conduit for the fire truck and ambulance donation because she conducted a site visit at Peaceoholics. In addition, the site visit she conducted was merely a pro forma act because it was clear from documentation submitted with Peaceoholics' application that it had no intention of using either vehicle. Instead, the documentation submitted by Peaceoholics clearly stated its intention to provide the vehicles to Sosua, Dominican Republic. Therefore, the issues of whether Ms. Booth's conduct violated DPM § 1803.1 (a)(2) (Giving preferential treatment to any person); § 1803.1 (a)(5) (Making a government decision outside official channels); and § 1803.1 (a)(6) (Affecting adversely the confidence of the public in the integrity of government); are SUBSTANTIATED.
Mr. Richardson had both a personal and previous professional relationship with Mr. Skinner, which he should have disclosed to Mr. Nickles when Mr. Nickles asked him to conduct a review of the attempted donation to Sosua. Instead, Mr. Richardson conducted the inquiry, which included an interview of Mr. Skinner in which he failed to ask basic questions about Mr. Skinner's involvement in the donation and District government business. Mr. Richardson's conflicts gave at least the appearance of preferential treatment toward Mr. Skinner and called into question the integrity and objectivity of the investigation, which concluded that the donation was "legal and totally proper." Therefore, the issue of whether Mr. Richardson violated § 1803.1 (a)(2) (Giving preferential treatment to any person) is SUBSTANTIATED. Based on the results of this investigation, the OIG recommends that: FEMS address the conduct of Deputy Fire Chief Gill with appropriate administrative action, as permitted under DPM § 1601.9 (a); OCP address the conduct of Ms. Booth with appropriate administrative action; OCP, DMPED, and FEMS ensure that all employees are trained appropriately regarding the District's rules on the disposition of surplus property; FEMS update its Apparatus Replacement Guidelines, if appropriate, and train all employees responsible for apparatus replacement to follow established Apparatus Replacement Guidelines; DMPED and FEMS ensure that all personnel with responsibilities that include reviewing and/or approving requests for travel, training, and/or per diem are properly trained to scrutinize such requests and held accountable for any failure to do so; OCP properly train all personnel with responsibilities that include reviewing requests for the disposition and/or donation of another agency's surplus District property, and hold such personnel accountable for any failure to do so; OAG ensure that all personnel with responsibilities that include reviewing requests from other District agencies to donate District government property be properly trained on the applicable regulations, procedures, and laws, and be required to analyze both the source and status of the property to be donated, as well as the justification for the donation request, and be held accountable for any failure to do so; and Steps be taken to ensure that all EOM, DMPED, FEMS, OCP, and OAG employees receive regular and appropriate conflicts of interest training. Report Approved by: Stacie Pittell Charles J. Willoughby Date of Approval: 4/13/11 1. Mr. Jannarone was a Special Assistant in the Office of Public Education Facilities Modernization (OPEFM) from March 28, 2010, until January 5, 2011, when he separated from District government. 2. Title 5 U.S.C. § 7342 (Receipt and disposition of foreign gifts and decorations). 3. DPM § 1803.1 (Responsibilities of Employees) provides that District government employees shall avoid conduct that might result in or create the appearance of: (a)( I) Using public office for private gain; (a)(2) Giving preferential treatment to any person; (a)(3) Impeding government efficiency or economy; (a)(4) Losing complete independence or impartiality; (a)(5) Making a government decision outside official channels; or (a)(6) Affecting adversely the confidence of the public in the integrity of government. Section 1803.2 provides that except as noted in § 1803.3, a District government employee shall not solicit or accept, either directly or through the intercession of others, any gift from a prohibited source. Section 1803.6 provides that an employee shall not accept a gift, present, or decoration from a foreign government unless authorized by Congress as provided by the Constitution and in 5 USC § 7342. 4. DPM §§ 1803.1 (a)(2),(5), and (6). 5. DPM § 1803.1 (a)(2). 6. The OCP Surplus Property Guidelines are available in the reception area at OCP as a hand-out. There is no apparent effective date provided on the hand-out. 7. In addition, D.C. Code § 2-307.01(2) requires the Mayor to issue rules governing the "sale, lease, or disposal of surplus supplies by public auction, competitive sealed bidding, competitive electronic sales, or other appropriate method designated by regulation . ..." 8. See 41 C.F.R. pt. 102-37.5. The federal program's requirements are mirrored in District regulations at 27 DCMR §§ 900-934. 9. The D.C. Council's Committee on Government Operations and the Environment's Report of the ,Surplus Property and Rulemaking Investigation (Jan. 27, 2010) notes the lack of statutory and regulatory authority for the donation of District surplus, as apparently the "PPD follows the same procedure for both federal and District property, despite the fact that the Personal Property Manual is silent as to any procedure related to nonprofit donation." Id. at n. 7. As a result, the Committee included statutory provisions for the donation of District surplus property to nonprofit entities in its "Procurement Practices Reform Act of 2010- (D.C. Act 18-723), which was introduced on January 5, 2010, and was scheduled to take effect on April 7, 2011. 10. According to OCP's website, the Educational Surplus Property Section of PPD is the District's SASP. 11. Mr. Giles was OCP's Chief of Staff, from November 2006-May 2009 and, in this position, supervised OCP's PPD. 12. This agreement was intended for the District to help Sosua with economic development. 13. Ms. Elwood explained that she initially asked Neil Albert, then Deputy Mayor of Planning and Economic Development, to attend, but Mr. Albert was unavailable, as was DMPED's Chief Operating Officer. 14. Mr. Henry passed away prior to the start of the OIG investigation. 15. The mission of Faith Productions is to "provide television, film, and theater production resources to youth of all socioeconomic and racial backgrounds between the ages of 3-21, interested in learning and interacting with professionals in the creative arts." Http://www.shecafe.org/faith/faith/html (last visited Apr. 5, 2011). 16. At the time of the OIG investigation, Fire truck 4194 was being used for parts to repair other FEMS trucks. 17. Although Deputy Fire Chief Gill said during his interview that FEMS did not have a written policy in effect, he later provided, through his attorney, the FEMS Apparatus Replacement Guidelines (Exhibit 1) with the caveat that these guidelines were not enforced. 18. The June 15, 2006, PDA, which lists fire truck #S-194, shows that the initial fire truck selected for the donation already was decommissioned at the time it was selected. In contrast, fire truck &S-I04 and ambulance &S-671 had not yet been decommissioned at the time they were selected for donation to Sosua. 19. See Exhibit 3. 20. When Ms. Booth needed the acquisition cost of fire truck #S-194 for Faith Productions' Request for Excess Property Form, she could have obtained that figure from the PDA, rather than assigning a value. 21. Deputy Fire Chief Gill's administrative leave request states that he will need leave to deliver a fire truck and ambulance to Sosua. 22. Although Deputy Fire Chief Gill traveled to Sosua, the fire truck and ambulance remained in the District and were still in operation at that time. 23. A review of Mr. Jannarone's DMPED leave request shows that he used annual leave for his trip to Sosua. 24. OIG investigators made several unsuccessful attempts to interview Mr. Anderson. 25. OIG investigators asked Mr. Jannarone, Deputy Fire Chief Gill, and Mr. Bolden for the name of the villa, but each told OIG investigators that he could not recall the name. 26. Mayor Cespedes, however, informed the OIG that he gave Mr. Skinner $11,000 for the shipping costs. 27. In an e-mail chain dated February 13, 2009, to February 16, 2009, between Deputy Fire Chief Gill and Skinner, Mr. Skinner requested a "donation letter" indicating that the District government is in the process of donating a fire truck and ambulance to Sosua. Accordingly, Deputy Fire Chief Gill drafted a memorandum February 17, 2009, on District government letterhead, to Mr. Espaillat, as Mr. Skinner had requested. 28. In a follow-up interview, Mr. Pozen explained that he did not draft the MOU and did not recall if such a document actually existed. He remembered, however, seeing something resembling a draft of an agreement because he initially thought that the written agreement was the correct process for the donation. Mr. Pozen said that after speaking with Mr. Giles it became clear that the document would not be useful. 29. In Mr. Giles' deposition by the Council, he testified that he wanted Ms. Booth to expedite the application process for Peaceoholics because lie was going out of town and wanted the task completed before his departure. 30. At the time of the OIG investigation, Fire Truck #S-104 and Ambulance # S-671 were located at OCP's surplus lot. Both vehicles ultimately were auctioned by Liquidation.com for $9,050 and $5,350, respectively. 31. Mr. Moten kept the credit from the shipping company and Sosua did not receive a refund of any of the shipping costs. 32. OIG investigators learned during the course of the investigation that Mr. Giles, Mr. Richardson, and Mr. Skinner are Kappa Alpha Psi fraternity brothers. |
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