<DOC>
[DOCID: f:d991.wais]
CONNIE PRATER
June 19, 2000
D 99-1
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 19, 2000
IN THE MATTER OF : DISCIPLINARY PROCEEDING
CONNIE PRATER, :
: Docket No. D 99-1
DECISION
Before: Judge Hodgdon
This disciplinary proceeding is before me on referral
from the Commission pursuant to Rule 80, 29 C.F.R. �
2700.80. DISCIPLINARY PROCEEDING, Docket No. D 99-1
(June 9, 1999). The Commission directed the Chief
Administrative Law Judge to assign the case to a judge to
determine, after a hearing, "whether discipline is
warranted in this case and, if so, what the appropriate
sanction should be." Id. For the reasons set forth
below, I conclude that discipline is warranted in this
case and order that the Respondent be disbarred from
practicing before the Commission.
Background
This matter was referred to the Commission by the
Secretary of Labor, in accordance with Rule 80(c)(1), 29
C.F.R. � 2700.80(c)(1).[1] The referral stated that
since Ms. Prater "has been convicted of a criminal
violation of the Mine Act, and the company for which she
was President and sole shareholder has been convicted of
violations of 18 U.S.C. � 1001 and 18 U.S.C. � 2 for
submitting fraudulent respirable dust samples to MSHA,
she has engaged in unethical and unprofessional conduct."
However, after the Commission referred the matter to a
judge for consideration, the Secretary, in response to a
Prehearing Order, stated that she was not a party to the
proceedings and did not expect to participate in the
hearing.
Left without anyone to prosecute the case, application
was made to the Commission to appoint a prosecutor. This
they did on August 18, 1999. DISCIPLINARY PROCEEDING,
21 FMSHRC 880 (August 1999).
The matter was proceeding toward hearing when, on
December 20, 1999, Respondent's counsel filed a letter
which stated: "I am writing to inform the Court that Ms.
Connie Prater will be unable to proceed in this matter
due to unexpected health reasons. Therefore, please
withdraw my appearance for Ms. Prater. Further, please
be advised that Ms. Prater will not make any further
appearances before the Court." As the Prosecutor noted
in his response to this letter, it was not clear whether
the Respondent was seeking a continuance in the case
until her health permitted her to participate in the
proceedings, whether she was no longer contesting the
charges or whether she expected the matter to be dropped
because she was not going to make any further appearances
in the case.
The response of the Prosecutor, prompted a second letter
from counsel for the Respondent, which was filed on
January 24, 2000. It stated, among other things:
Quite frankly, given that Ms. Prater is currently
fighting for her life against what I understand is a
recurring cancer, I do not intend to even forward the
[prosecutor's] letter to her unless so ordered by the
Court. . . . I do not intend to disturb Ms. Prater
during her illness to obtain "sworn affidavits" from
her or her medical doctors.
As to [the prosecutor's] suggestion that Ms. Prater
"consent to an order determining her culpability for
ethical misconduct," I can represent to the Court without
discussing it with Ms. Prater that she would never do
so. Ms. Prater was completely prepared to litigate
this matter up until the time that she was diagnosed
with her current illness. I respectfully submit that
I believe Ms. Prater would not consent to some order
proposed by [the prosecutor] simply to make this matter
go away.
. . . At the same time, please do not misunderstand
Ms. Prater's position � she was quite clear with me
that she has not chosen to withdraw from the case to win
the Court's sympathy. Rather, her decision is borne out
of the reality that her attention must be devoted to
holding her life together. This proceeding, and the
extreme infrequency with which she even participated in
Commission proceedings in the past, is simply too remote
to the core activities in her life to permit her to focus
on this matter as she originally intended.
. . .
Despite the peremptory tone of the letter, it still did
not state exactly what the Respondent's position was with
regard to the case. While the letter clearly stated that
Ms. Prater would not request a continuance based on
affidavits from her doctors and she would not consent to
an order disposing of the case, it did not state how the
case was supposed to be resolved. The implication,
however, is that if she "withdrew" the case would be
dropped. Manifestly, that is not an option available to
one facing disciplinary proceedings.
Accordingly, on February 29, 2000, an Order to Show Cause
was issued to the Respondent ordering her to show cause
why she should not be held in default in this matter.[2]
The order pointed out that:
[I]f Ms. Prater desires that this proceeding be
continued until such time as her illness permits her to
participate, she must accompany her request with an
affidavit from her treating physician setting forth
the nature of her illness, how long she has been ill,
the reason the illness renders her incapable of
participating in the proceedings, and the probable
length of time she will be unavailable before the
proceeding can resume. Such an affidavit may not be
conclusory, but must set forth the medical history
and prognosis of Ms. Prater's condition, substantiate
the medical basis for concluding that her health
conditions preclude her from participating in the
proceedings at this time and identify any medical
restrictions that should be placed on her participation
in pretrial examination or at trial.
The order also informed her that if she
is not seeking a continuance, but does not intend to
participate in the proceedings at all, she should be
aware that failure to participate will result in her
being found in default and the issuance of a disciplinary
order, "which may include reprimand, suspension, or
disbarment from practice before the Commission."
30 C.F.R. � 2700.80(c)(3).
The Respondent was given 21 days to respond to the order,
which provided that:
The Respondent shall comply with this order by filing
a statement that she is ready to proceed, by requesting
a continuance in the manner set out above, or by filing a
statement acknowledging that she is aware of the
possible penalties facing her and stating that she does
not desire to participate in the proceedings. Failure
to comply with this order will result in the issuance
of a disciplinary order adjudging a reprimand, suspen-
sion or disbarment from practice before the Commission.
On March 21, 2000, a response to the order was received
from the Respondent. On May 1, 2000, the prosecutor filed
his Proposed Findings, Conclusions and Recommendations. On
May 15, 2000, a reply to the prosecutor's filing was
received from Ms. Prater.
Findings of Fact and Conclusions of Law
The Respondent's response to the Order to Show Cause
consisted of a copy of a statement signed by "John
Furcolow, M.D." and addressed "TO WHOM IT MAY CONCERN."
It stated, "[t]his is to document that I follow Ms.
Prater for a host of medical problems . . . ." It was
not accompanied by any other document. The statement,
which consisted of two paragraphs of two sentences each,
was not made under oath and is conclusory in nature.
Although it lists some conditions for which Ms. Prater is
being treated, it does not set forth the nature of those
conditions, how long the Respondent has been ill, the
reasons that she is incapable of participating in a
hearing or the probable length of time she will be
unavailable. Further, the statement does not set forth a
medical history and prognosis of Ms. Prater's condition
or substantiate the medical basis for concluding that her
medical condition prevents her from participating in a
hearing. Indeed, nowhere in the statement does it claim
that the Respondent is not able to participate in these
proceedings.
Since the statement requests that its contents "be held
under strictest confidence," her "medical problems" will
not be discussed in detail. However, it does not appear
that any of them, either individually or in combination,
would preclude her from taking part in a disciplinary
hearing. Significantly, there is not mention in the
statement of a "recurrent cancer" or any other life
threatening disease of that nature. It is unclear for
what purpose the statement was submitted, since it was
not accompanied by a request for a continuance or with
any explanation.
Accordingly, I conclude that the Respondent is in
default in this matter because she failed to comply with the
Order to Show Cause. She did not state that she was
ready to proceed, she did not request a continuance[3]
and she did not state that she did not want to
participate in the proceedings. In fact, in her reply to
the prosecutor's Proposed Finds, Conclusions and
Recommendations she concludes by stating: "I am
respectfully asking to withdraw from this case. My
priorities have changed and I prefer my energy to be
spent on what I consider to be a more important issue -
my health. I do not foresee proceeding with this case
now, or anytime in the near future." As previously
noted, withdrawal is not an option available to her.
Inasmuch as Ms. Prater has defaulted in this proceeding,
I will proceed to adjudging an appropriate sanction.
Disciplinary Sanction
On July 24, 1994, a 13 count indictment was returned
against, among others, Pra-Mac Enterprises and Connie
McKinney (a.k.a. Connie Prater) in the United States
District Court for the Eastern District of Kentucky. The
first count of the indictment alleged a conspiracy
to thwart and defeat MSHA's program for testing and
controlling levels of concentration of respirable coal
dust present in the active workings of coal mines by
submitting fraudulent respirable coal dust samples
to MSHA in violation of Title 18, United States Code,
Sections 1001 and 1341.[4]
The alleged conspirators were Pra-Mac Enterprises, a Kentucky
corporation of which Connie Prater is the sole owner, director
and officer, Connie Prater, and three of her relatives who worked
part time for Pra-Mac.
The next 11 counts alleged violations of 18 U.S.C. �� 2
and 1001 in that Pra-Mac Enterprises, Connie Prater and
various others submitted false dust samples and dust data
cards for at least eight mines to MSHA.[5] The final
count alleged a violation of 18 U.S.C. � 1341 by mailing
the false dust samples and dust data cards to MSHA.
The presentation of the government's case lasted several
days. At the close of the government's case the parties
entered into a plea agreement. Pra-Mac pleaded guilty to
Count 2 of the indictment, which alleged that the
corporation
submitted and caused to be submitted to MSHA
respirable coal dust samples which were represented as
having been taken in accordance with the requirements
of the Mine Safety Act at the coal mines of the defendants'
customers, including but not limited to those coal
mines mentioned in this Indictment, but which in truth
and in fact, as defendants then and there well knew,
were not taken at such coal mines and were not taken
in accordance with the requirements of the Mine Safety
Act; the defendants thereby concealing and covering up
from MSHA material facts, the material facts being
the level of the concentration of respirable coal
dust actually present in the active workings of the
mines on those dates for which the fraudulent
respirable dust samples were submitted to MSHA . . . .
Connie Prater pleaded guilty to an Information which
alleged:
that CONNIE PRATER failed to take the required valid
respirable coal dust samples for the following mines:
the Todco, Incorporated No. 1 Mine; the Dukane Energy,
Incorporated No. 1 Mine; the White Cloud Mining Company,
Incorporated No. 1 Mine; the V & M Mining Company of Paints-
ville, Incorporated No. 6 Mine; and the Lynx Coal Company,
Incorporated No. 3 Mine. The respirable coal dust
samples submitted to the Mine Safety and Health Adminis-
tration were fabricated outside the mines or were
otherwise not taken in accordance with the requirements
of the Mine Safety Act. In violation of Title 30, United
States Code, Section 820(d), and Title 30, Code of Federal
Regulations, Sections 70.201, 70.207 and 70.208.
All of these crimes, the ones alleged and the ones to
which Ms. Prater pleaded guilty, involve "moral
turpitude," that is, "[c]onduct that is contrary to
justice, honesty, or morality." Black's Law Dictionary
1026 (7th ed. 1999). While the transcript of the
government's case against the Respondent indicates that
the government had a strong case, it is only necessary to
consider her guilty pleas to arrive at an appropriate
sanction in this case. As Black's points out, and the
prosecutor has well demonstrated in his extensive brief,
"[i]n the area of legal ethics, offenses involving moral
turpitude � such as fraud or breach of trust �
traditionally make a person unfit to practice law." Id.
Although Ms. Prater is not a lawyer, the principle is the
same, and on this basis alone disbarment from practice
before the Commission would be an appropriate sanction.
However, not only do the offenses that Ms. Prater
admitted committing involve moral turpitude, they also
were an attempt to undermine one of the main purposes of
the Mine Act. In section 201(b) of the Act, 30 U.S.C. �
841(b), Congress stated, in setting out interim mandatory
health standards, that:
Among other things, it is the purpose of this
title to provide, to the greatest extent possible, that
the working conditions in each underground coal mine are
sufficiently free from respirable dust concentrations
in the mine atmosphere to permit each miner the oppor-
tunity to work underground during the period of his en-
tire adult working life without incurring any disability
from pneumoconiosis or any other occupation-related
disease during or at the end of such period.
Sections 70.201, 70.207 and 70.208, the sections Ms. Prater
pleaded guilty to violating, are the Secretary's rules for
conducting dust sampling to fulfil Congress' intention in the
Act. By her actions, and the actions of her employees, the
Respondent was not only dishonest, but she also placed miners
lives in jeopardy. See Consolidation Coal Co., 8 FMSHRC 890,
898-99 (June 1986) (overexposure to respirable dust raises a
presumption that pneumoconiosis or chronic bronchitis will
result). Consequently, while crimes of moral turpitude would
prohibit Ms. Prater from practicing law any place, if she were a
lawyer, submitting fraudulent dust samples makes such a sanction
that much more appropriate before the commission whose sole
purpose is adjudicating matters arising under the Mine Act.
Accordingly, I conclude that Connie Prater has engaged in
conduct that warrants discipline and that the appropriate
sanction is disbarment from practice before the
Commission.
Order
It is ORDERED that Connie Prater is DISBARRED from appearing
before the Commission.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Peter A. Eveleth, Special Counsel to the General Counsel,
National Labor Relations Board, 1099 14th Street, N.W., Room
10308, Washington, DC 20570-0001 (Certified Mail)
Ms. Connie Prater, 2057 Kentucky Route 850, David, KY 41616
(Certified Mail)
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[1] Rule 80(c)(1) provides that "a Judge or other person
having knowledge of circumstances that may warrant disciplinary
proceedings against an individual who is practicing or has
practiced before the Commission shall forward to the Commission
for action such information in the form of a written disciplinary
referral."
[2] The order also granted her counsel's renewed request to
withdraw from the case.
[3] If the doctor's statement was intended to be a request
for continuance, it did not comply with the instructions provided
for making such a request, nor does it, on its face, indicate
that a continuance is necessary or justified.
[4] When the case occurred, 18 U.S.C. � 1001 stated:
Whoever, in any matter within the jurisdiction of
any department or agency of the United States knowingly
and willfully falsifies, conceals or covers up by any
trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or
representations, or makes or uses any false writing
or document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall
be fined under this title or imprisoned not more than
five years, or both.
The section was completely revised in 1996, Pub. L. 104-292, � 2,
110 Stat. 3459 (Oct. 11, 1996), but prohibits the same things.
18 U.S.C. � 1341 prohibits use of the U.S. Postal Service to
carry out frauds and swindles.
[5] 18 U.S.C. � 2 makes "aiders and abettors" liable as
principals in the commission of a crime.