Office of Disciplinary Counsel v. Preski

• Decision Date: 29 March 2016
• Docket Number: Nos. 1813 Disciplinary Docket No. 3,s. 1813 Disciplinary Docket No. 3
• Citation: 134 A.3d 1027
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. Brian J. PRESKI, Respondent.
• Court: Pennsylvania Supreme Court

134 A.3d 1027

OFFICE OF DISCIPLINARY COUNSEL, Petitioner

v.Brian J. PRESKI, Respondent.

Nos. 1813 Disciplinary Docket No. 3

Supreme Court of Pennsylvania.

Argued Sept. 9, 2015.

Resubmitted Jan. 20, 2016.

Decided March 29, 2016.

Ms. Elaine Bixler, Pro Se.

Paul J. Killion, Esq., Harrisburg, Amelia C. Kittredge, Esq., Disciplinary Board of Supreme Court of PA, for Office of Disciplinary Counsel.

G. Alexander Bochetto, Esq., Thomas E. Groshens, Esq., Bochetto & Lentz, P.C., for Brian J. Preski.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

Justice WECHT

.

This matter comes to us following the issuance of a Report and Recommendation by the Disciplinary Board of the Supreme Court of Pennsylvania ("Board"). From 2000 to 2007, Brian J. Preski served as the Chief of Staff to State Representative John Perzel, the Majority Leader (and later the Speaker) of the Pennsylvania House of Representatives. During his tenure as a public servant, Preski conspired to misappropriate millions of dollars in public resources for his own personal and political gain. In its report, the Board detailed its factual findings and recommended that Preski be disbarred. Because the evidentiary record abundantly supports the Board's findings and recommendation, we disbar Preski from the practice of law in this Commonwealth.

For six years, in his capacity as a state official and in collusion with Perzel and others, Preski used state employees and public funds to develop sophisticated data collection and processing software for partisan political campaigns. That conspiracy, which the media dubbed "computergate," had three discrete components. First, Preski and his cohorts misused public employees and resources to advance campaign efforts. Second, they used taxpayer funds to purchase campaign-related software, data, and services from outside technology vendors. Third, Preski and Perzel formed two consulting companies in an effort to profit personally from those taxpayer-financed technologies.

The conspiracy began in November 2000 when Perzel very narrowly won his bid for re-election. The slight victory prompted Perzel to explore emerging technologies that could improve his future campaigns. After the election, Perzel and Preski commissioned state employees from the Republican Information and Technology Office ("RIT") to develop a "Blue Card" system, a massive electronic database of voter demographics and attitudes obtained from door-to-door interviews. The system would group voters with similar preferences and predict how a particular citizen would cast his or her vote, if at all. Armed with this information, Perzel's campaign could target its messaging to specific voters and could ensure that key constituencies got to the polls on Election Day. For Perzel, having such a system in place for the 2002 election became a top priority.

Preski and his co-conspirators held meetings regarding the development of Blue Card during the workday at the Capitol in Harrisburg. The RIT dedicated significant employee hours, resources, and equipment to the creation of the database, all at taxpayers' expense. Indeed, this work became so commonplace that the assignments largely went unquestioned by RIT staff. The RIT was able to create a somewhat rudimentary application that served as proof of the Blue Card concept.

In addition to squandering equipment and the time and efforts of public servants, Preski and his colleagues also paid outside technology vendors directly from the public till. When Perzel sought to improve Blue Card by developing a backend "enterprise database" to aggregate and store data from multiple sources, he put Preski and Bill Tomaselli, another House employee and trusted political operative, in charge of the project. On January 1, 2002, Preski signed a $2,000,000 contract with GCR, Inc. ("GCR"), a Louisiana-based technology company, to develop the new database. Although that contract, by its terms, purported to be for legislative "reapportionment assistance," GCR's actual task was to create a system that would help Perzel and his colleagues win elections and retain their party's majority in the House. GCR exclusively received public funds in satisfaction of the January 1, 2002 contract.

After GCR completed the system, Preski signed subsequent high dollar contracts for GCR's ongoing services. For instance, GCR developed a campaign tool for the House Republican Caucus knows as The Edge in the months leading up to the 2002 election. That application, financed entirely by the Commonwealth's taxpayers, allowed users to generate a list of voters who fit certain criteria, and then predicted which of them would vote in the general election. Preski, who served as the manager of Perzel's 2002 re-election campaign, personally had access to The Edge. In October 2002, Preski forwarded a new GCR contract to the House Billing Clerk, and directed that GCR's monthly invoices, each in the amount of $200,000, be paid with funds from the RIT's "computer budget."¹

Although still a work-in-progress, Blue Card was operational during the 2002 election. Perzel won his bid for re-election, and he considered Blue Card to be a success. Over the next several years, Preski oversaw a seemingly endless series of improvements to Blue Card along with the development of related software. For example, Perzel and Preski retained Aristotle International, Inc. ("Aristotle") to add new features and improvements to Blue Card. Preski and Perzel reviewed and approved every contract that the House Republican Caucus entered into with Aristotle. From 2003 to 2008, Aristotle received $6,200,000 in public funds, most of which was for campaign-related services. In 2004, Preski also personally approved a $50,000 payment to yet another vendor, Weiss Micromarketing Group ("Weiss"), which specializes in "segment data," i.e., the classification of voters into "lifestyles" in order to better target direct mail, persuade undecided voters, and predict election results.

Perzel, Preski, and Tomaselli formed a political consulting company called Greystone in an effort to profit personally from the publicly funded technology and expertise that they had developed in conjunction with GCR. On the morning after the 2002 election, Tomaselli sent an email to Preski expressing his desire to continue working on Blue Card. Preski responded: "Consider it done. We need you to do it, Billy, because we proved [the] Greystone concept in multiple districts last night, and I'm sure you're aware it will make us millionaires." Disciplinary Hearing Transcript ("D.H.T."), 2/27/2014, at 218.

A few months later, Perzel sent Tomaselli to serve as the field coordinator for Sam Katz' Philadelphia mayoral campaign, where Tomaselli would review and approve consulting contracts for the campaign. GCR and Greystone submitted to the Katz campaign a joint proposal for campaign consulting services totaling $2,208,846. When Tomaselli told the president of GCR that he did not want to approve the proposal, Preski met with Tomaselli and pressured him, albeit cryptically, to approve the bid, reminding him that "sometimes you got to do some things you don't want to do, ... friends are friends." Report and Recommendations of the Disciplinary Board, 4/20/2015, at 11. GCR's president then called Tomaselli and told him that he had been given his "marching orders" and would need to approve the GCR/Greystone proposal. Tomaselli ignored this directive.²

In July 2010, following a grand jury investigation, the Pennsylvania Attorney General charged Preski with twelve counts each of theft by unlawful taking or disposition, theft of services, theft by deception, theft by failure to make required disposition of funds received, criminal conspiracy, and conflict of interest.³ Preski proceeded to a jury trial, which commenced on September 28, 2011. On October 5, 2011, the fourth day of his trial, Preski pleaded guilty to three counts of conflict of interest, two counts of theft of services, and five counts of criminal conspiracy. The trial court sentenced Preski to twenty-four to forty-eight months' imprisonment and imposed a consecutive five-year term of probation, a $37,500 fine, and $1,000,000 in restitution.

Following Preski's guilty plea and sentencing, this Court entered an order placing Preski on temporary suspension pursuant to Pa.R.D.E. 214(f)(1)

, and referring the matter to the Board for further proceedings. A Hearing Committee assigned by the Board held disciplinary hearings on January 30, 2014, February 27, 2014, and March 13, 2014. At those hearings, the Office of Disciplinary Counsel ("ODC") entered into evidence Preski's indictment, the testimony from his criminal trial, and numerous news articles discussing Preski's conduct, trial, and conviction. Preski presented eight character witnesses, numerous character reference letters, his sentencing memorandum, his resume, and his personal calendars from the years that his criminal activity occurred. Preski also testified on his own behalf.

The Hearing Committee concluded that Preski violated Rule of Professional Conduct 8.4(b)

, which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. The committee also concluded that Preski was subject to discipline pursuant to Pennsylvania Rule of Disciplinary Enforcement 203(b)(1), which provides that a criminal conviction shall be grounds for discipline.

The committee found nine aggravating factors and two mitigating factors in this case. The nine aggravating circumstances that the Hearing Committee noted were that Preski acted in concert with Perzel to plan, direct, and control a "corrupt swindle of the taxpayers"; Preski directed staff members under his supervision to participate in the conspiracy; Preski attempted to use the technology that he purchased with stolen taxpayer funds for his own personal pecuniary gain; Preski held a...