Two prominent area fishing industry attorneys contend that the relationship between the federal fishery case makers and a frequently-used expert witness who helps determine how much industry members can pay in fines creates a potential case-corrupting ethical conflict.
At the core of the concern is the use of the so-called Asset Forfeiture Fund, the poorly controlled account spotlighted in an Inspector General's Office investigation and built from the fines paid by the fishing industry to the Office of the General Counsel for Enforcement and Litigation at the National Oceanic and Atmospheric Administration.
A related issue is the finding by the U.S. Commerce Department's IG found that NOAA levied fines 500 percent higher in New England and the Northeast than in other areas, with penalties widely out of proportion to the nature and degree of severity of the violation. The Northeast Region — from Maine to the Carolinas — is policed and controlled by agents and lawyers based in Gloucester.
The fund, which held as much as $90 million in a 41/2-year period ending in June 2009, was improperly used by NOAA law enforcement agents and lawyers, according to a scathing report by the Inspector General Todd Zinser and an outside auditing firm he brought in to more closely examine the books.
Among the concerns expressed by Gloucester-based fishing attorney Stephen Ouellette and New Bedford lawyer Pamela Lafreniere is the participation at two international conferences on illegal fishing — in 2005 and 2008 — of Gerald Hellerman of Hellerman Associates, a Maryland-based financial and corporate consulting firm.
The IG's report found that NOAA had used $109,000 from the fund to bring a contingent of agents and lawyers to the 2008 conference on international illegal fishing that was held in Trondheim, Norway.
The attorneys are trying to determine whether Hellerman, whose firm provides NOAA with analyses of fishermen's personal and business net worth and liquidity to validate the size of potential fines, was reimbursed or paid directly from the Asset Forfeiture Fund for his expenses related to the 2005 conference in Kuala Lumpur, Malaysia, and the 2008 conference in Norway.
Hellerman told the Times he was not planning to attend next month's third international conference on illegal fishing to be held over five days in Mozambique, and he referred questions about his travel expenses to NOAA.
NOAA did not respond to questions about its financial relationship with Hellerman.
In statements to the Times, Lafreniere and Ouellette said that, whether or not Hellerman's overseas travel was covered by NOAA, his presence at the conferences with NOAA agents and litigators represents a conflict of interest.
"Steve and I would either object or call into question his credibility based on the fact that his opinion may be tainted by the fact that he may be deriving an economic benefit from the AFF by ... direct payment for his services and travel to non-case related seminars," Lafreniere said.
"The bigger issue is the agency counsel, administrative law judges and the NOAA's expert witness appeared together at conferences that did not include, and appear to have excluded, industry or its counsel, indicating a lack of judicial independence," she said.
"The norm is to see the judiciary speak to gatherings that include counsel for both the governing agency and the governed," she added. "The fact that these exclusive gatherings are paid for by the efforts of hard working fishermen ... is appalling, and further undermines remaining confidence, if any, in the system."
Since the July release of the IG's report on the misuse of the Asset Forfeiture Fund, it has come to light that NOAA's Office of General Counsel for Enforcement and Litigation used the fund for nearly all its operating budget other than salaries, and paid for the services of the Coast Guard Administrative Law Judge system from the fund as well.
Those facts were kept from defense lawyers until the IG's report was released.
Ouellette has said he believes the hidden ulterior motives for levying higher fines violated the ethical code, and said he will be seeking inquiries by the U.S. House Ethics Committee and the Massachusetts Bar Association.
Richard Gaines can be reached at 978-283-7000, x3464, or email@example.com.