In the Matter of the Debarment of ) June 12, 1985 ) PAUL E. JAQUISH, JR. ) PRESA, INC. ) 49 Singing Wood Lane ) ) at ) ) Orinda, CA 94563-1210 ) P.S. Docket No. 19/124 APPEARANCE FOR RESPONDENT: Kenneth C. Nagel, Esq. Pillsbury, Nagel & Atcheson 155 Montgomery Street San Francisco, CA 94104-4180 APPEARANCE FOR POSTAL SERVICE: Norman D. Menegat, Esq. Law Department United States Postal Service Washington, DC 20260-1121 Cohen, James A.
Respondent has filed a motion for reconsideration of the Postal Service Decision (PSD) issued in this matter on April 12, 1985. Respondent alleges that the decision is not supported by the facts established in the record and is contrary to the applicable law. In a memorandum in support of its motion, Respondent contends that the Postal Service Decision contains five separate errors of fact which are material to the result reached, and that the debarment period imposed is excessive. As a result, Respondent requests that an Order be issued scheduling a hearing on its motion. The Postal Service has filed a reply opposing the motion.
The Postal Service Decision which Respondent seeks to have reconsidered held that Respondent, PRESA, Inc., and any other company in which Respondent has a substantial interest or control, was debarred from Postal Service contracting and subcontracting until April 24, l987. The basis for this holding was (l) Respondent's guilty plea and conviction of violating l8 U.S.C. ?l00l; (2) Respondent's undisclosed business activities with MCR, Elsag and Alascom, whether directly or through Mr. Nagel and Presa, Inc., while a Postal Service official and while advocating PCRC and UDD; (3) Respondent's use of MCR's townhouse on a rent-free basis; and (4) Respondent's failure to disclose his position or arrangement with PRESA on a financial disclosure report required to be filled out by Postal Service officials. After consideration of the mitigating circumstances advanced by Respondent, it was determined in the Postal Service decision that the period of exclusion until April 24, l987, was reasonable and appropriate under the "present responsibility" standard.
I. Errors of Fact
The record has been reviewed to determine whether factual errors were made in the Postal Service Decision. Each of the errors of fact alleged by Respondent is discussed in turn.
"1. That Mr. Nagel was the secretary of PRESA prior to the organizational meeting of the corporation held on January ll, l982."
Respondent argues that Mr. Nagel could not have been the Secretary of PRESA in December, l981, since, under California law, the corporation did not come into existence until January ll, l982. In Finding of Fact 12 it is stated that "in December l981 Mr. Nagel became the corporation's secretary, after Respondent requested that he assume this function" (PSD at p. 7). This finding was based on Mr. Nagel's testimony that he sent letters to Mr. Shaginaw, Mr. Mazzoni, and Mr. Friedman in December, l981, and from that point on agreed, at Respondent's request, to act as PRESA's secretary (Tr. 353; see FOF 20, 24 & 27, PSD at pp. l0-12). Thus, the finding is supported by the record. Further, whether Mr. Nagel acted in fact as PRESA's secretary while Respondent was still a Postal Service employee, and Respondent's intentions in this regard, are not determined by the legal consequences of Mr. Nagel's actions under California law. In any event, Finding of Fact l2 does not materially affect the ultimate debarment determination.
Accordingly, the finding regarding Mr. Nagel's relationship to PRESA is supported by the record and Respondent's allegation of error does not serve as a basis for altering the Postal Service Decision.
"2. That any of the personal */ letters sent by Mr. Nagel to MCR, Alascom or Elsag was subject to acceptance by the receiver prior to January ll, l982."
While not part of a specific finding, it is noted in the Postal Service Decision that Respondent's and Mr. Nagel's letters to MCR, Elsag, and Alascom "made clear that the proposals were subject to acceptance during Respondent's Postal Service employment" (PSD at pp. 19-20). Mr. Nagel's letters to Alascom and Elsag expressly stated that the proposals set forth were open through January 15, 1982, and invited the addressee to respond directly to him prior to January 9, l982, or, after that date, to PRESA and Respondent (FOF 24 & 27, PSD at pp. ll-l3). Since Respondent's resignation from the Postal Service became effective on January 8, 1982 (FOF 1, PSD at p. 4), the proposals to Elsag and Alascom were clearly subject to acceptance during Respondent's employment with the Postal Service.
With respect to MCR, Respondent's November 30, 1981 letter to that company set forth a detailed proposal for a working rela tionship with PRESA and noted that decisions must be made "between now and your December l6, l981, Board of Directors Stockholder's meeting, and I am prepared to achieve a mutually advantageous arrangement within the limited time we have" (FOF 18, PSD at p. 9). Thus, this letter also clearly contemplated acceptance before termination of Respondent's Postal Service employment.
While Respondent contends that PRESA was not legally empowered to accept any proposal before January 11, 1982, the language of these letters presented a contrary impression. Even if this language was of no ultimate legal consequence, it is still relevant in considering whether standards of conduct or other violations transpired warranting debarment.
Accordingly, the conclusion that the letters cited contained proposals subject to acceptance during Respondent's Postal Service employment, and the findings on which this conclusion is based, are supported by the record.
"3. That the personal letters sent by Mr. Nagel to Alascom and Elsag in December, 1981 concerned potential business prospects for the Postal Service."
The language which is relevant to this alleged error appears at page 22 of the Postal Service Decision, where it is noted that the letters to Alascom and Elsag "prepared by Respondent and sent on his behalf concern potential business prospects with the Postal Service and tout Respondent's thorough familiarity with Postal operations and technology" (emphasis added).
While Respondent contends that this conclusion is speculative, it is nonetheless supported by the references to Respondent's postal experience contained in the cited letters. Thus, the language used in the Postal Service Decision is not erroneous.
"4. That in completing Form SF-278 Respondent understood the intent of the information requested in the same manner as the Department of Justice."
The Postal Service Decision does not include a finding with this language. However, it was found that Respondent believed the financial disclosure report instructions to be clear (FOF 35, PSD at p. 16). It was also found that at an arraignment proceeding in a United States District Court, Respondent admitted he was guilty of making a false statement in violation of 18 U.S.C. 1001 and agreed with the summary of evidence then presented (FOF 30, PSD at p. 14). These findings are supported by the record and are affirmed.
"5. That Respondent does not appreciate the significance of his failure to complete Form SF-278 in the manner interpreted by the Department of Justice."
In Finding of Fact 37 (PSD at p. 16), it was noted that "substantial questions" exist "as to whether Respondent appreciates the seriousness of his wrongdoing." This statement was based on unrebutted testimony that Respondent had characterized his crime as a technical violation and that he had compared his conviction to a traffic ticket (Tr. 54). Respondent himself testified at the hearing that "at this moment it's inconceivable for me to see that. . . that's a violation" (Tr. l9l). Thus, the finding is supported by the record.
II. The Period of Debarment.
The remainder of Respondent's memorandum contains arguments which were previously raised and considered. Respondent's contention that the period of debarment constitutes punishment because it is co-extensive with his period of probation is rejected. As discussed in the Postal Service Decision, a debarment of little more than two years is justified under the "present responsibility" standard in view of the number and nature of the improprieties established. In this regard, Respondent's contention that the effective debarment would be more than five years is not persuasive since he was not suspended from Postal Service contracting pending issuance of the April 12, 1985, debarment decision.
Finally, Respondent argues that the "limited number of acts during a brief period of time" which give rise to the debarment should be weighed against "more than a decade of exemplary conduct and the performance of service of great responsibility" (Resp. memo. at p. 11). While each situation in which debarment has been proposed must be considered on its own merits, in this case Respondent's past performance record, while distinguished, cannot offset the acts on which the debarment is based (see PSD, pp. 26 & 27). The debarment period imposed is affirmed.
Upon consideration of Respondent's motion and accompanying memorandum, it is concluded that no factual errors have been shown or new evidence alleged which would justify the modification of the April l2, l985 Postal Service Decision. Furthermore, Respondent was given a full opportunity to present his evidence and he has not shown that an additional hearing should be held. Accordingly, the request for a further hearing is denied and the Postal Service Decision is affirmed.