In the matter of: Connie Prater

Plain-English summary

The Commission referred a disciplinary matter involving Connie Prater to an ALJ after allegations concerning fraudulent respirable-dust samples submitted to MSHA. After her counsel withdrew and she asked to withdraw from the case, the judge found that she had not complied with an order to show cause or properly requested a continuance. The judge therefore found her in default and considered the appropriate sanction. Relying on her guilty plea concerning fabricated dust samples and the effect of that conduct on the Mine Act's respirable-dust protections, Judge T. Todd Hodgdon disbarred her from appearing before the Commission.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(d); 30 C.F.R. §§ 70.201, 70.207, and 70.208
• Outcome: The ALJ found Connie Prater in default and disbarred her from appearing before the Commission.
• Key point: Fraudulent respirable-dust sampling and failure to participate in the disciplinary proceeding supported disbarment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                                       June 19, 2000

IN THE MATTER OF: : DISCIPLINARY PROCEEDING
CONNIE PRATER, :
: Docket No. D 99-1

                                        DECISION

Before: Judge Hodgdon

    This disciplinary proceeding is before me on referral from the Commission pursuant to

Rule 80, 29 C.F.R. § 2700.80. DISCIPLINARY PROCEEDING, Docket No. D 99-1 ( June 9,
1999). The Commission directed the Chief Administrative Law Judge to assign the case to a
judge to determine, after a hearing, “whether discipline is warranted in this case and, if so, what
the appropriate sanction should be.” Id. For the reasons set forth below, I conclude that
discipline is warranted in this case and order that the Respondent be disbarred from practicing
before the Commission.

                                        Background

   This matter was referred to the Commission by the Secretary of Labor, in accordance with

Rule 80(c)(1), 29 C.F.R. § 2700.80(c)(1).1 The referral stated that since Ms. Prater “has been
convicted of a criminal violation of the Mine Act, and the company for which she was President
and sole shareholder has been convicted of violations of 18 U.S.C. § 1001 and 18 U.S.C. § 2 for
submitting fraudulent respirable dust samples to MSHA, she has engaged in unethical and
unprofessional conduct.” However, after the Commission referred the matter to a judge for
consideration, the Secretary, in response to a Prehearing Order, stated that she was not a party to
the proceedings and did not expect to participate in the hearing.

   Left without anyone to prosecute the case, application was made to the Commission to

appoint a prosecutor. This they did on August 18, 1999. DISCIPLINARY PROCEEDING,
21 FMSHRC 880 (August 1999).

      1
      Rule 80(c)(1) provides that “a Judge or other person having knowledge of circumstances

that may warrant disciplinary proceedings against an individual who is practicing or has practiced
before the Commission shall forward to the Commission for action such information in the form
of a written disciplinary referral.”

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    The matter was proceeding toward hearing when, on December 20, 1999, Respondent’s

counsel filed a letter which stated: “I am writing to inform the Court that Ms. Connie Prater will
be unable to proceed in this matter due to unexpected health reasons. Therefore, please withdraw
my appearance for Ms. Prater. Further, please be advised that Ms. Prater will not make any
further appearances before the Court.” As the Prosecutor noted in his response to this letter, it
was not clear whether the Respondent was seeking a continuance in the case until her health
permitted her to participate in the proceedings, whether she was no longer contesting the charges
or whether she expected the matter to be dropped because she was not going to make any further
appearances in the case.

  The response of the Prosecutor, prompted a second letter from counsel for the

Respondent, which was filed on January 24, 2000. It stated, among other things:

           Quite frankly, given that Ms. Prater is currently fighting for her life
           against what I understand is a recurring cancer, I do not intend to
           even forward the [prosecutor’s] letter to her unless so ordered by
           the Court. . . . I do not intend to disturb Ms. Prater during her
           illness to obtain “sworn affidavits” from her or her medical doctors.

                   As to [the prosecutor’s] suggestion that Ms. Prater
           “consent to an order determining her culpability for ethical
           misconduct,” I can represent to the Court without discussing it with
           Ms. Prater that she would never do so. Ms. Prater was completely
           prepared to litigate this matter up until the time that she was
           diagnosed with her current illness. I respectfully submit that I
           believe Ms. Prater would not consent to some order proposed by
           [the prosecutor] simply to make this matter go away.

                   . . . At the same time, please do not misunderstand
           Ms. Prater’s position — she was quite clear with me that she has
           not chosen to withdraw from the case to win the Court’s sympathy.
           Rather, her decision is borne out of the reality that her attention
           must be devoted to holding her life together. This proceeding, and
           the extreme infrequency with which she even participated in
           Commission proceedings in the past, is simply too remote to the
           core activities in her life to permit her to focus on this matter as she
           originally intended.
                   ....

    Despite the peremptory tone of the letter, it still did not state exactly what the

Respondent's position was with regard to the case. While the letter clearly stated that Ms. Prater
would not request a continuance based on affidavits from her doctors and she would not consent
to an order disposing of the case, it did not state how the case was supposed to be resolved. The

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implication, however, is that if she “withdrew” the case would be dropped. Manifestly, that is not
an option available to one facing disciplinary proceedings.

   Accordingly, on February 29, 2000, an Order to Show Cause was issued to the

Respondent ordering her to show cause why she should not be held in default in this matter.2
The order pointed out that:

            [I]f Ms. Prater desires that this proceeding be continued until such
            time as her illness permits her to participate, she must accompany
            her request with an affidavit from her treating physician setting
            forth the nature of her illness, how long she has been ill, the reason
            the illness renders her incapable of participating in the proceedings,
            and the probable length of time she will be unavailable before the
            proceeding can resume. Such an affidavit may not be conclusory,
            but must set forth the medical history and prognosis of Ms. Prater’s
            condition, substantiate the medical basis for concluding that her
            health conditions preclude her from participating in the proceedings
            at this time and identify any medical restrictions that should be
            placed on her participation in pretrial examination or at trial.

The order also informed her that if she

            is not seeking a continuance, but does not intend to participate in
            the proceedings at all, she should be aware that failure to
            participate will result in her being found in default and the issuance
            of a disciplinary order, “which may include reprimand, suspension,
            or disbarment from practice before the Commission.” 30 C.F.R.
            § 2700.80(c)(3).

   The Respondent was given 21 days to respond to the order, which provided that:

            The Respondent shall comply with this order by filing a statement
            that she is ready to proceed, by requesting a continuance in the
            manner set out above, or by filing a statement acknowledging that
            she is aware of the possible penalties facing her and stating that she
            does not desire to participate in the proceedings. Failure to
            comply with this order will result in the issuance of a
            disciplinary order adjudging a reprimand, suspension or
            disbarment from practice before the Commission.




   2
       The order also granted her counsel’s renewed request to withdraw from the case.

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   On March 21, 2000, a response to the order was received from the Respondent. On

May 1, 2000, the prosecutor filed his Proposed Findings, Conclusions and Recommendations. On
May 15, 2000, a reply to the prosecutor’s filing was received from Ms. Prater.

                       Findings of Fact and Conclusions of Law

    The Respondent’s response to the Order to Show Cause consisted of a copy of a

statement signed by “John Furcolow, M.D.” and addressed “TO WHOM IT MAY CONCERN.”
It stated, “[t]his is to document that I follow Ms. Prater for a host of medical problems . . . .” It
was not accompanied by any other document. The statement, which consisted of two paragraphs
of two sentences each, was not made under oath and is conclusory in nature. Although it lists
some conditions for which Ms. Prater is being treated, it does not set forth the nature of those
conditions, how long the Respondent has been ill, the reasons that she is incapable of participating
in a hearing or the probable length of time she will be unavailable. Further, the statement does not
set forth a medical history and prognosis of Ms. Prater’s condition or substantiate the medical
basis for concluding that her medical condition prevents her from participating in a hearing.
Indeed, nowhere in the statement does it claim that the Respondent is not able to participate in
these proceedings.

     Since the statement requests that its contents “be held under strictest confidence,” her

“medical problems” will not be discussed in detail. However, it does not appear that any of them,
either individually or in combination, would preclude her from taking part in a disciplinary
hearing. Significantly, there is not mention in the statement of a “recurrent cancer” or any other
life threatening disease of that nature. It is unclear for what purpose the statement was submitted,
since it was not accompanied by a request for a continuance or with any explanation.

    Accordingly, I conclude that the Respondent is in default in this matter because she failed

to comply with the Order to Show Cause. She did not state that she was ready to proceed, she
did not request a continuance3 and she did not state that she did not want to participate in the
proceedings. In fact, in her reply to the prosecutor’s Proposed Finds, Conclusions and
Recommendations she concludes by stating: “I am respectfully asking to withdraw from this case.
My priorities have changed and I prefer my energy to be spent on what I consider to be a more
important issue - my health. I do not foresee proceeding with this case now, or anytime in the
near future.” As previously noted, withdrawal is not an option available to her. Inasmuch as Ms.
Prater has defaulted in this proceeding, I will proceed to adjudging an appropriate sanction.

                                  Disciplinary Sanction


   3
     If the doctor’s statement was intended to be a request for continuance, it did not comply

with the instructions provided for making such a request, nor does it, on its face, indicate that a
continuance is necessary or justified.

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   On July 24, 1994, a 13 count indictment was returned against, among others, Pra-Mac

Enterprises and Connie McKinney (a.k.a. Connie Prater) in the United States District Court for
the Eastern District of Kentucky. The first count of the indictment alleged a conspiracy

               to thwart and defeat MSHA’s program for testing and controlling
               levels of concentration of respirable coal dust present in the active
               workings of coal mines by submitting fraudulent respirable coal
               dust samples to MSHA in violation of Title 18, United States Code,
               Sections 1001 and 1341.4

The alleged conspirators were Pra-Mac Enterprises, a Kentucky corporation of which Connie
Prater is the sole owner, director and officer, Connie Prater, and three of her relatives who
worked part time for Pra-Mac.

     The next 11 counts alleged violations of 18 U.S.C. §§ 2 and 1001 in that Pra-Mac

Enterprises, Connie Prater and various others submitted false dust samples and dust data cards for
at least eight mines to MSHA.5 The final count alleged a violation of 18 U.S.C. § 1341 by mailing
the false dust samples and dust data cards to MSHA.

    The presentation of the government's case lasted several days. At the close of the

government’s case the parties entered into a plea agreement. Pra-Mac pleaded guilty to Count 2
of the indictment, which alleged that the corporation

               submitted and caused to be submitted to MSHA respirable coal
               dust samples which were represented as having been taken in


     4
         When the case occurred, 18 U.S.C. § 1001 stated:

                        Whoever, in any matter within the jurisdiction of any
               department or agency of the United States knowingly and willfully
               falsifies, conceals or covers up by any trick, scheme, or device a
               material fact, or makes any false, fictitious or fraudulent statements
               or representations, or makes or uses any false writing or document
               knowing the same to contain any false, fictitious or fraudulent
               statement or entry, shall be fined under this title or imprisoned not
               more than five years, or both.

The section was completely revised in 1996, Pub. L. 104-292, § 2, 110 Stat. 3459 (Oct. 11,
1996), but prohibits the same things. 18 U.S.C. § 1341 prohibits use of the U.S. Postal Service to
carry out frauds and swindles.
5
18 U.S.C. § 2 makes “aiders and abettors” liable as principals in the commission of a
crime.

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           accordance with the requirements of the Mine Safety Act at the
           coal mines of the defendants’ customers, including but not limited
           to those coal mines mentioned in this Indictment, but which in truth
           and in fact, as defendants then and there well knew, were not taken
           at such coal mines and were not taken in accordance with the
           requirements of the Mine Safety Act; the defendants thereby
           concealing and covering up from MSHA material facts, the material
           facts being the level of the concentration of respirable coal dust
           actually present in the active workings of the mines on those dates
           for which the fraudulent respirable dust samples were submitted to
           MSHA . . . .

   Connie Prater pleaded guilty to an Information which alleged:

           that CONNIE PRATER failed to take the required valid respirable
           coal dust samples for the following mines: the Todco, Incorporated
           No. 1 Mine; the Dukane Energy, Incorporated No. 1 Mine; the
           White Cloud Mining Company, Incorporated No. 1 Mine; the V &
           M Mining Company of Paintsville, Incorporated No. 6 Mine; and
           the Lynx Coal Company, Incorporated No. 3 Mine. The respirable
           coal dust samples submitted to the Mine Safety and Health
           Administration were fabricated outside the mines or were otherwise
           not taken in accordance with the requirements of the Mine Safety
           Act. In violation of Title 30, United States Code, Section 820(d),
           and Title 30, Code of Federal Regulations, Sections 70.201, 70.207
           and 70.208.

    All of these crimes, the ones alleged and the ones to which Ms. Prater pleaded guilty,

involve “moral turpitude,” that is, “[c]onduct that is contrary to justice, honesty, or morality.”
Black’s Law Dictionary 1026 (7th ed. 1999). While the transcript of the government’s case
against the Respondent indicates that the government had a strong case, it is only necessary to
consider her guilty pleas to arrive at an appropriate sanction in this case. As Black’s points out,
and the prosecutor has well demonstrated in his extensive brief, “[i]n the area of legal ethics,
offenses involving moral turpitude — such as fraud or breach of trust — traditionally make a
person unfit to practice law.” Id. Although Ms. Prater is not a lawyer, the principle is the same,
and on this basis alone disbarment from practice before the Commission would be an appropriate
sanction.

    However, not only do the offenses that Ms. Prater admitted committing involve moral

turpitude, they also were an attempt to undermine one of the main purposes of the Mine Act. In
section 201(b) of the Act, 30 U.S.C. § 841(b), Congress stated, in setting out interim mandatory
health standards, that:

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                    Among other things, it is the purpose of this title to provide,
            to the greatest extent possible, that the working conditions in each
            underground coal mine are sufficiently free from respirable dust
            concentrations in the mine atmosphere to permit each miner the
            opportunity to work underground during the period of his entire
            adult working life without incurring any disability from
            pneumoconiosis or any other occupation-related disease during or
            at the end of such period.

Sections 70.201, 70.207 and 70.208, the sections Ms. Prater pleaded guilty to violating, are the
Secretary’s rules for conducting dust sampling to fulfil Congress’ intention in the Act. By her
actions, and the actions of her employees, the Respondent was not only dishonest, but she also
placed miners lives in jeopardy. See Consolidation Coal Co., 8 FMSHRC 890, 898-99 (June
1986) (overexposure to respirable dust raises a presumption that pneumoconiosis or chronic
bronchitis will result). Consequently, while crimes of moral turpitude would prohibit Ms. Prater
from practicing law any place, if she were a lawyer, submitting fraudulent dust samples makes
such a sanction that much more appropriate before the commission whose sole purpose is
adjudicating matters arising under the Mine Act.

    Accordingly, I conclude that Connie Prater has engaged in conduct that warrants

discipline and that the appropriate sanction is disbarment from practice before the Commission.

                                            Order

 It is ORDERED that Connie Prater is DISBARRED from appearing before the

Commission.

                                           T. Todd Hodgdon
                                           Administrative Law Judge

Distribution:

Peter A. Eveleth, Special Counsel to the General Counsel, National Labor Relations Board,
1099 14th Street, N.W., Room 10308, Washington, DC 20570-0001 (Certified Mail)

Ms. Connie Prater, 2057 Kentucky Route 850, David, KY 41616 (Certified Mail)

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