Office of Disciplinary Counsel v. Preski

[J-4-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

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

OFFICE OF DISCIPLINARY COUNSEL, No. 1813 Disciplinary Docket No. 3

Petitioner No. 6 DB 2012

Attorney Registration No. 65241
v. (Philadelphia)

BRIAN J. PRESKI, ARGUED: September 9, 2015
RESUBMITTED: January 20, 2016
Respondent

OPINION

JUSTICE WECHT DECIDED: March 29, 2016
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.

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 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

1 All told, GCR received $9,286,000 in public funds between 2001 and 2008.

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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

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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

2 Perzel and Preski, without Tomaselli, later formed another political consulting
company called SKP. With the exception of a single $10,000 consulting fee from a local
political campaign, SKP proved to be as fruitless as Greystone.
3 18 Pa.C.S. §§ 3921(a), 3926(a)(1), 3922(a)(1), 3927, 903, and 65 Pa.C.S.
§ 1103(a), respectively.

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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 highly visible position

of public trust; Preski failed to take full responsibility for his crimes; Preski’s attempts to

convince the Hearing Committee that Perzel forced and/or bullied him into committing

the crimes were incredible; Preski brought disrepute upon the bar; Preski failed to

withdraw from the conspiracy; and Preski did not take responsibility for the fact that he

was a leader and instigator of the conspiracy. The two mitigating circumstances that

the Hearing Committee considered were Preski’s lack of disciplinary history and his

significant contributions to the House of Representatives, and to the people of

Pennsylvania, throughout his career.

Emphasizing the magnitude, duration, and cost of Preski’s crimes, the Hearing

Committee characterized this matter as “one of the most serious political corruption

cases in our disciplinary jurisprudence,” and recommended that Preski be disbarred.

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Hearing Committee Report, 7/25/2014, at 34. Preski then filed a brief on exceptions

and requested oral argument before the Board. Following argument, the Board

recommended that Preski be disbarred, noting that the facts of this case were strikingly

similar to those in ODC v. Foreman, 1543 DD 3 (Pa. 2014) (disbarring an attorney and

former legislative aide who participated in a scheme to use public employees and funds

for partisan political purposes).4 Preski, believing that these circumstances do not

warrant disbarment, filed a petition for review with this Court. This matter is now ripe for

final disposition.

“In attorney discipline matters we exercise de novo review, and we are not bound

by the findings and recommendations of the hearing committee or the Board, though we

give them substantial deference.” ODC v. Chung, 695 A.2d 405, 407 (Pa. 1997). The

ODC bears the burden of establishing attorney misconduct by a preponderance of the

evidence. ODC v. Cappuccio, 48 A.3d 1231, 1236 (Pa. 2012). Because discipline is

imposed on a case-by-case basis, we must consider the totality of facts presented,

including any aggravating or mitigating factors. Id. at 1238. Despite the fact-intensive

nature of this endeavor, we strive for consistency so that similar misconduct “is not

punished in radically different ways.” ODC v. Lucarini, 472 A.2d 186, 190 (Pa. 1983).

It is well established that a criminal conviction itself is a basis for discipline. See

Pa.R.D.E. 203(b)(1) (grounds for discipline); ODC v. Costigan, 584 A.2d 296, 300 (Pa.

1990). Thus, the issue in this case is not whether discipline is warranted, but whether

we should impose disbarment, a sanction that is reserved for only the most egregious

ethical violations, as the Board recommends. ODC v. Jackson, 637 A.2d 615, 619 (Pa.

4 See also ODC v. Foreman, No. 164 DB 2009 (D. Bd. Rpt. May 19, 2014),
available at http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/164DB2009-
Foreman.pdf.

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1994). In determining the appropriate measure of discipline, we remain cognizant that

disciplinary sanctions are not designed for their punitive effects, but rather are intended

to protect the public from unfit attorneys and to maintain the integrity of the legal

system. ODC v. Christie, 639 A.2d 782, 785 (Pa. 1994).

We agree with the ODC that the pertinent facts of this case are nearly identical to

those in Foreman, where we ordered disbarment rather than imposing a five-year

suspension. In that case, Foreman was the Chief of Staff to the Minority Whip of the

House Democratic Caucus. Foreman supervised numerous public employees and had

the power to allocate public funds, employees, and resources. Foreman’s scheme,

which the media labeled “bonusgate,” involved the use of Commonwealth resources for

partisan political purposes. Much like Preski, Foreman “was a central participant in a

concerted pattern of illegal conduct in which taxpayer dollars, equipment and other

resources were misdirected to campaign efforts.” Foreman, No. 164 DB 2009 at 10.

The Board in Foreman found six mitigating factors. Notwithstanding Foreman’s

central role in the bonusgate conspiracy, he assisted the Commonwealth in its

investigation and prosecution. After pleading guilty to multiple felonies, Foreman

testified against his former colleagues. Foreman also expressed sincere remorse for

his crimes, took full responsibility for his actions, had no prior record of discipline,

devoted significant time to volunteer activities, and presented evidence of his good

character. Nevertheless, the Board recommended that Foreman be disbarred,

concluding that this mitigating evidence could not overcome Foreman’s fundamentally

dishonest conduct, which illustrated a lack of integrity. We accepted the Board’s

recommendation and entered an order disbarring Foreman.

Instantly, the Board was guided by our order in Foreman, noting that the cases

factually are similar, but that the mitigating evidence presented in Foreman was far

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more compelling than the mitigating circumstances present in this case. The Board also

considered the fact that, unlike Foreman, Preski failed to take full responsibility for his

criminal conduct. According to the Board, Preski attempted to minimize his substantial

role in the computergate conspiracy by suggesting that he was merely an inattentive

supervisor. Specifically, Preski testified throughout the hearing that he was “willfully

blind” and “not the watchdog [he] should have been.” D.H.T., 2/27/2014, 50, 85. He

also testified that he “turned a blind eye” and “didn’t do anything to stop” his staff from

misusing public resources. Id. at 84, 85, 165. Citing this testimony, the Board

concluded that Preski “has not accepted responsibility for his misconduct and has not

demonstrated recognition of the gravity of his acts.” Report and Recommendations of

the Disciplinary Board at 29.

Preski argues that Foreman is inapposite because the evidentiary record does

not support the Board’s conclusion that Preski failed to accept responsibility for his

convictions.5 He directs us to portions of the disciplinary hearing transcript where he

conceded that he was “part and parcel” of the computergate conspiracy and took

responsibility for his misconduct. Id. at 145-146, 196. Notwithstanding these passing

declarations, the hearing transcript reveals that Preski repeatedly understated the

breadth of that misconduct. See, e.g., id. at 83-84 (“I failed to do my job, to follow up

with what was going on [in the RIT], and the best that I can say is that I knew that the

people down there were at times doing campaign work.”); 85 (stating that he “turned a

blind eye,” “became willfully blind,” and “did nothing to stop” the misuse of public

5 Preski also argues that, unlike in Foreman, the Board capriciously discredited the
testimony of his character witnesses. We need not discuss this contention at length
because it is clear that the Board did no such thing. See Report and Recommendations
of the Disciplinary Board at 30 (“Eight witnesses from [Preski’s] professional and
community life testified. Each witness was credible and truthful.”).

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resources); 87 (“I was given a great job as a supervisor of a lot of people, and I relied on

them to do their jobs and to do it properly.”); 89 (“I never checked to make sure that

[Aristotle was] getting paid from the campaign to create those programs.”); 91 (“It was

my job to supervise Tomaselli as he went forward with the [Weiss] project. I failed.”).

Preski also misrepresented his role in Greystone. He testified that Greystone

was only a vehicle for his wife to serve as a paid campaign consultant, and

characterized it as “her thing.” Id. at 64. This was incorrect. In his criminal case, Preski

pleaded guilty to, inter alia, “attempting to use [] public resources for specific personal

pecuniary gain in setting up a corporation called Greystone and attempting to profit from

public resources through that corporation.” Guilty Plea Transcript, 10/5/2011, 10.

Preski predicted that Greystone would make him and Tomaselli “millionaires.” He also

pressured Tomaselli, in his capacity as field coordinator for the Katz mayoral campaign,

to approve a seven-figure proposal that included Greystone’s services.

Preski’s attempt to distinguish this case from Foreman by challenging the

Board’s finding that he failed to accept responsibility for his convictions is unpersuasive.

The record before us plainly illustrates Preski’s lack of candor before the hearing

committee. Moreover, even if Preski had accepted complete responsibility for his

crimes, disbarment still would be warranted. See Foreman, supra (disbarring attorney

despite his expression of “sincere remorse” and his acceptance of responsibility for his

crimes).

Finally, Preski disputes the Board’s determination that his misconduct caused

disrepute to the bar. The Board noted that Preski’s crimes “were widely reported

throughout the Commonwealth” and that this publicity “was particularly damaging

because it became an integral part of a media narrative that described pervasive

corruption among politicians in the Pennsylvania Legislature.” Report and

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Recommendations of the Disciplinary Board at 28. Preski emphasizes that none of the

media reports that the Board relied upon (including some that explicitly identified Preski

as a “Philadelphia lawyer”) “purport[ed] to associate Preski’s misconduct or his

convictions with his status as a lawyer. To the contrary,” Preski argues, “the articles

consistently portray[ed] Preski as a secondary player whose involvement was based on

his status as Perzel’s top aid[e] or Chief of Staff.” Brief for Preski at 36-37. In short,

Preski evidently believes that only conduct associated with one’s “status as a lawyer” is

capable of tarnishing the reputation of the bar. This, too, is incorrect.

Preski was a highly visible figure in law and government. His status as a

member of the bar was no secret. Before he was hired as Perzel’s chief of staff, Preski

was an Assistant District Attorney in Philadelphia. In the House of Representatives,

Preski held a prominent position of public trust. He supervised over 900 state

employees, including attorneys, research analysts, and support staff. He wielded

significant control over an annual state budget of more than $26 billion, and he routinely

met with the Governor, with state and local elected officials, and with United States

Senators. He served on several boards of directors and was the Vice Chair of this

Court’s Criminal Procedural Rules Committee. To suggest that his misconduct does not

speak to the integrity of the profession is to defy logic and common sense.

Preski’s fraud against the public at large is no less reprehensible than a

practitioner’s theft of client funds. If anything, the transgressions of a lawyer who is also

a public servant are even more injurious to the reputation of the bar because they bring

dishonor both to the profession and to our democratic institutions. Public trust is an

indispensable prerequisite to the effective administration of government. When a public

official violates that trust, he or she undermines the integrity of the entire system.

Considering the unprecedented scope, duration, and cost of Preski’s criminal conduct,

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any sanction short of disbarment here would necessarily suggest that disbarment is

virtually never warranted in cases of public corruption. This we decline to do. “[S]ome

conduct is simply too egregious and requires disbarment to protect the integrity of the

profession and judicial tribunals.” ODC v. Czmus, 889 A.2d 1197, 1203-04 (Pa. 2005).

We order that Preski be disbarred from the practice of law in this Commonwealth,

retroactive to April 25, 2012. Preski shall comply with the provisions of Pa.R.D.E. 217,

and pay costs to the Board pursuant to Pa.R.D.E. 208(g).

Justices Baer, Todd and Donohue join the opinion.

Justice Dougherty concurs in the result.

Chief Justice Saylor dissents, as he favors imposition of a five-year suspension.

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