Unlike the FCPA’s anti-bribery provisions, 18 USC 666 (Theft or bribery concerning programs receiving Federal funds) does not contain an express facilitation payment exception which exempts conduct to “expedite or secure the performance of a routine governmental action” defined to include “obtaining permits, licenses, or other official documents.”
Even though the FCPA contains such a provision, and even though Congress explained in the legislative history that the FCPA would not reach “payments made to secure permits, licenses, or the expeditious performance of similar duties of an essentially ministerial or clerical nature which must of necessity by performed in any event,” many FCPA enforcement actions in the modern era of enforcement do indeed involve licenses, permits, and the like.
A recent domestic bribery enforcement action – invoking 18 USC 666 – concerns similar conduct.
As noted in this DOJ press release, Anthony Saccavino and Brian Cordasco, two former chiefs of the New York City Fire Department (“FDNY”) Bureau of Fire Prevention (“BFP”) were recently charged with with bribery, corruption, and false statements offenses.
As alleged in the indictment:
“During the relevant period, Saccavino and Cordasco … were Chiefs of the FDNY’s Bureau of Fire Prevention (the “BFP” or “Fire Prevention”). The BFP is the FDNY division that regulates the installation of fire safety and suppression systems in commercial and residential buildings throughout New York City. The BFP ensures that these systems comply with fire safety regulations by, among other things, reviewing and approving design plans and conducting on-site inspections of installed systems. In many cases, BFP approvals are required before a building can be occupied or opened to the public. As Chiefs of Fire Prevention-and, ultimately, the top two ranking members of the BFP–during the relevant period, [the defendants] supervised the BFP personnel who conducted these plan reviews and inspections. For nearly two years, [the defendants] misused this authority for their own financial gain.
Specifically, […] the defendants, solicited and accepted bribes from a retired FDNY firefighter (“CC-I “) who ran a so-called “expediting” business (the “CC-1 Company”). Acting in large part at the direction of [the defendants], CC-I promised his customers that he could “expedite”-or fast track-their plan reviews and inspection dates with the BFP, in exchange for payment. CC-1 made this claim even though the BFP generally addressed applications on a first-come, first-served basis, and notwithstanding the significant wait times that BFP applicants generally faced during the relevant period.
Behind the scenes, after a customer had hired the CC-1 Company, […], the defendants, directed BFP personnel to prioritize that customer’s plan review or inspection request in order to get paid by CC-1. [The defendants] justified these priority requests within the FDNY by lying to their BFP subordinates or relying on their influence as BFP Chiefs. CC-1 was paid by the customers of his company for this so-called “expediting” and, in turn, CC-1 made bribe payments to [the defendants] to obtain preferential treatment by the BFP for his customers.
Collectively, […] the defendants, and CC-I received more than $I90,000 in bribe payments in connection with this scheme.”
