I am writing to express my concurrence with the Statement of Chairman Robert Pitofsky and Commissioner Sheila F. Anthony on the proposed consent agreement that the Commission accepted today for public comment in Civic Development Group, Inc. I have voted to support this proposed agreement in recognition of the allegation of serious harm caused by respondents through their fraudulent telemarketing fundraising and the need to place such respondents under order. However, one provision of the order raises issues addressed by my two aforementioned colleagues and that I wish also to address through this Statement.

Part V of the Order in Civic Development Group states that in any Commission action to enforce the order, "there shall be a rebuttable presumption that the respondents have exercised good faith in complying with [substantive provisions of the order] if the respondents show, by a preponderance of the evidence, that they have established and maintained the education and compliance program mandated in Paragraph IV of the order. . . ."

I question the propriety of accepting a consent agreement that results in shifting the burden of proof to benefit a party that the Commission is claiming engaged in unlawful conduct. There are serious risks in permitting any party or adjudicative body to interfere with the Commission’s well-supported prosecutorial discretion, and it could be argued that the limited rebuttable presumption in Part V allows respondent’s compliance with the procedural requirements to detract from the Commission’s ability to pursue substantive violations.

For purposes of this case only, I accept the order’s burden-shifting provision and concur with the Chairman, Commissioner Anthony, and staff that this order is acceptable based on the unique and specialized aspects of this case. Accordingly, in my view, the order presented here should not be regarded as having precedential value.

I trust that staff will continue to work closely with the company to monitor its compliance with the stringent requirements of Part IV as well as all other requirements of the order.