GloucesterTimes.com, Gloucester, MA

August 23, 2010

NOAA agent's cash demand draw ethics fire

By Richard Gaines
Staff Writer

NOAA fisheries attorney Charles Juliand's inflexible demand for cash — nearly $50,000 from a well-liked Rhode Island commercial fisherman — seemed like just another example of hard bargaining at the time, four years ago.

But Juliand's rejection of offers by Greg Duckworth to surrender his federal groundfishing permit in lieu of cash, and Juliand's rejection of any installment payment plan has now taken on what one private attorney has called "provocative" overtones as questions swirl around the National Oceanic and Atmospheric Administration's dependence on the fines captured from fishermen to fund overseas travel by agents and operational spending by NOAA's Office of General Counsel.

"Excessive fines are normal," said Gloucester-based fisheries attorney Stephen Ouellette. "Regulatory compliance is less important to them than collecting money for their expenses."

The U.S. Commerce Department Inspector General reported July 1 that the Office of General Counsel for Enforcement and Litigation — which sets the fines for alleged violations, then prosecutes them through an administrative law system — that draws "more than 99 percent of its non-salary operating expenses" from the Asset Forfeiture Fund.

The fines were also used to pay for foreign travel unrelated to cases and for exorbitant purchases by the National Oceanic and Atmospheric Administration's Office of Law Enforcement. Inspector General Todd Zinser's office also found the police force had purchased more vehicles, 202, than the 172 officers it had on the force, along with what a brochure described as a "luxurious" undercover police boat.

The IG's findings has prompted howls of complaints about Juliand and his lawyers in the Gloucester regional NOAA enforcement office having a vested interest in the size of fines, despite repeated NOAA denials.

The IG reported that, over 41/2 years through June 2009, the police and litigators had charged $580,000 to the Asset Forfeiture Fund for international travel to 40 destinations, including $109,000 for a contingent of 21 to attend a 2008 international conference in Norway.

Documented excessive fines

The IG's report also found that fines against fishermen and related businesses in the Northeast have been pegged at up to 500 percent higher than in other parts of the country. NOAA law enforcement rules fisheries from Maine to the Carolinas from its offices in Gloucester's Blackburn Industrial Park.

One lawyer who spoke on condition of anonymity said the Juliand e-mail warrants sanctions from the Board of Bar Overseers for ethical violations.

"He should have divulged how all along there was an financial interest in the settlement," the fisheries lawyer said. "We really thought that they lived by the same rules we live by, but there were things we couldn't explain."

Ouellette, whose fishing industry practice extends along the Atlantic coast, said the IG's revelation demonstrated government lawyers were in ethical conflicts and said the Massachusetts Bar Association and the U.S. House Ethics Committee should investigate.

Juliand heads the Northeast Division office for the Office of General Counsel for Enforcement and Litigation.

The conflict with Duckworth expanded and escalated to the point where he faced fines of more than $1 million and a lifetime ban from federal fishing. Those sanctions were reduced on appeals; Duckworth is appealing a reduction of penalties to $100,000 and four forced years off the water.

Tina Jackson, president of the American Alliance of Fishermen, who also fishes out of Point Judith, said Duckworth "is very much well-liked in the community. Greg is an extremely sweet guy."

$50,000 fine

In 2006, Duckworth was struggling to come up with the cash to pay a $50,000 fine levied by Juliand's office and upheld by an administrative law judge for the violation of catching monkfish without a permit.

At the time his boat was boarded about 37 miles south of Point Judith, Duckworth said he had been fishing for skates to use as bait for his commercial lobstering, and had some of the more valuable monkfish on board, which he said was bycatch he intended to discard.

After the judge upheld the fine, negotiations began. On June 12, Juliand sent an e-mail to Duckworth's lawyer at the time, Mark McSally, insisting on a "lump sum" payment.

But to "sweeten the pot," Juliand offered to credit to the debt $2,434.40 — the value of the catch on board Duckworth's boat when it was boarded.

Need it 'in a hurry'

Juliand went on to write that he'd "be willing to take another look at his financial data, but I'd need to get it in a hurry and I'd need to know how much equity he has in his three vessels, home etc."

He went on to say he suspected that Duckworth "could borrow the cash if pressed to sell one or more of his vessels to raise the cash."

Juliand ended with an assertion. "Getting into a protracted payment plan situation with your client isn't in the government's best interest."

Juliand did not return phone calls to Times offices Monday seeking comment for this story. A copy of Juliand's e-mail has been obtained by the Times.

According to a court petition filed by Duckworth's lawyer Patrick Flanigan before the monkfish case, Duckworth had a clean record in 15 years of commercial fishing.

He had even received a "certificate of recognition" for repeatedly opening his boat for use by trainees in the government observer program.

After Juliand refused to take payment of the fine in installments, "Duckworth sought to refinance his home and the vessels (he owned three) to pay the civil fine," Flanigan wrote. But instead, Juliand suspended Duckworth's operating and fishing permits.

Barring Duckworth from the use of his boats left 800 lobster traps legally in the water.

"What do I do now?" Duckworth recalled telling the government.

He took a job installing sheet rock, and waited. He then was informed that he was being charged with "illegal fishing" for having the traps in the water.

The fine was set at $1.2 million along with a lifetime ban from fishing.

The appeal produced a reduced penalty to $100,000 and four years away from fishing. Duckworth is now appealing that in U.S. District Court of Appeals.

Richard Gaines can be reached at 978-283-7000. x3464, or rgaines@gloucestertimes.com.