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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF MARION

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STATE OF OREGON,

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Plaintiff, Case No. 16CR53578

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V.

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MARTIN JAY SHAIN,

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Defendant.

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DECLARATION OF MARILYN STAGEY IN SUPPORT OF MOTION TO DISMISS AMENDED INDICTMENT FOR PROSECUTORIAL MISCONDUCT

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I, Marilyn Stacey, declare:

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1.

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Jay Shain.

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2.

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Attached as Exhibit A is a true and correct copy of the August 14, 2016 Civil

Investigative Demand issued to Mr. Shain.

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I am a Paralegal with the law firm of Ball Janik LLP, counsel for defendant Martin

3.

Attached as Exhibit B is a true and correct copy of an August 17,2016 email string

between Lucille Salmony and Jim McDermott, copied to Tim D. Nord.

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4.

Attached as Exhibit C is a true and correct copy of a document on Federal Bureau of

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Investigation letterhead, dated November 3,2015. The document purports to be the summary of

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a joint interrogation conducted by Federal Bureau of Investigation Special Agent Joseph Fangon

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and Oregon Department of Justice Special Agent Todd Gray, of Robert Simonton on August 31,

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2015 and September 1,2015. The State produced this document to Mr. Shain on September 15,

Page 1 - DECLARATION OF MARILYN STACEY IN SUPPORT OF MOTION TO DISMISS AMENDED INDICTMENT FOR PROSECUTORIAL MISCONDUCT ! 088242

Ball Janik llp 101 SWMain Street. Suite1100 Portland, Oregon 97204-3219 Telephone 503.228 2525


1

2016, under document numbers 2148 - 2166. In order to protect Mr. Simonton's privacy, I have

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redacted references to Mr. Simonton's date of birth, social security number, address, and

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telephone numbers.

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I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

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DATED this 30th day of November, 2016.

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^

Marilyn Stacey

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Page 2 - DECLARATION OF MARILYN STACEY IN SUPPORT OF MOTION TO DISMISS AMENDED INDICTMENT FOR PROSECUTORIAL MISCONDUCT 1088242

Ball Janik LLP 101 SWMain Slreel, Suite1100 Portland, Orcijon Q7204O2I9

Telephone 503.228 2525


1

DEPARTMENT OF JUSTICE

2

STATE OF OREGON

J

4

IN THEMATTEROF

CIVIL I\TVESTIGATTVE DEMAND

BACGEN TECNOLOGIES, INC.

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AND

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MARTINJ. SHAIN,

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Respondents.

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TO: 10

MARTIN SIIAIN 4508 SW Atlantic Street Seattle, WA 98 1 I 6

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MARTIN SHAIN BACGEN Tecbnologies, INC. 4015 Beach Drive SW

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Seattle, Vr'A 981 16

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PACIFIC REGISTERED AGENTS, INC. Registered Agent for BACGEN TECHNOLOGIES, INC. 942 Windemere Drive NW

L6 T7

Salem, 18

OR 97304

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GREETINGS:

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This CIVIL INVESTIGATIVE DEMAND is part of an official investigation being

2l

conducted by the Oregon Deparünent of Justice and is issued pursuant to the provisions of

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Oregon Revised Statute (ORS) 180.775. The purpose of the investigation is to determine

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whether there has been a violation of the Oregon False Claims Act, ORS 180.750 through ORS

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180.785, in the form of submissions made to the Oregon Deparhnent of Energy to seek an

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26 Page

I of

2

- CIVIL INVESTIGATIVE DEMAND

DM#6'105960v4 OREGON DEPARTMENT OF JUSTICE I162 Court Street NE Sal€m, OR 97301

Tel: 9503) 934-4400/ Fax: (s03) 378-s0l?

EXHIBIT A Page 1 of 2


1

DEPARTMENT OF JUSTICE

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STATE OF OREGON

J

4

IN THEMATTEROF

CIVIL I\TVESTIGATTVE DEMAND

BACGEN TECNOLOGIES, INC.

5

AND

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MARTINJ. SHAIN,

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Respondents.

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9

TO: 10

MARTIN SIIAIN 4508 SW Atlantic Street Seattle, WA 98 1 I 6

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MARTIN SHAIN BACGEN Tecbnologies, INC. 4015 Beach Drive SW

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Seattle, Vr'A 981 16

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PACIFIC REGISTERED AGENTS, INC. Registered Agent for BACGEN TECHNOLOGIES, INC. 942 Windemere Drive NW

L6 T7

Salem, 18

OR 97304

19

GREETINGS:

20

This CIVIL INVESTIGATIVE DEMAND is part of an official investigation being

2l

conducted by the Oregon Deparünent of Justice and is issued pursuant to the provisions of

22

Oregon Revised Statute (ORS) 180.775. The purpose of the investigation is to determine

23

whether there has been a violation of the Oregon False Claims Act, ORS 180.750 through ORS

24

180.785, in the form of submissions made to the Oregon Deparhnent of Energy to seek an

25

26 Page

I of

2

- CIVIL INVESTIGATIVE DEMAND

DM#6'105960v4 OREGON DEPARTMENT OF JUSTICE I162 Court Street NE Sal€m, OR 97301

Tel: 9503) 934-4400/ Fax: (s03) 378-s0l?

EXHIBIT A Page 1 of 2


extension of the Oregon University System's solar panel array ("Solar by Degrees" photovoltaic 1

power) project deadline in 2011-12. 2

You are required to appear and provide testimony related to this matter. J

4

DATE AND TIME OF ATTENDANCE:

Tuesday, August 25, 2015 1:00 - 5:00 p.m.

LOCÄTION:

Oregon Department of Justice Broadwav Conference Room 1515 sW 5d', Suite 410 Portland, Oregon 97201

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6 7

Ph.971.673.1880

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AUTHORITY

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This demand may be enforced as provided in ORS 646.626.

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NOTICE:

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Pursuant to ORS 646.626, should you fail to appear at 1515 SW 5th, Suite 410, in

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Portla:rd, Oregon on 8l25ll5 âI 1:00 p.m. or a mutually-agreed upon altemative time, date or

t4 15

t6 77

iocation, as required by this Justice

will

CIVL iNVESTIGAIVE DEMAND, the Oregon Department of

request a court order as soon thereafter as possible mandating your appearance and

such other relief as allowed in ORS 646.626.

Dated this 146 day ofAugust,2015.

18 19

Senior Assistant Attomey General Oregon Department of Justice

20

2l

Of Attomeys for Plaintiff Financial Fraud./Consumer Protection Section 1 162 Court Street NË Salem, Oregon 97301 Phone: 503.934.4400 Fax: (503) 378-501,7 Email: Lucille.salmonvf@doj.state.or.us

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26 Page 2 or2 - CTYIL Dì'Á#670596Av4

INVESTIGATM DEMAND OR.ÉGON DEPARTMENT OF JUSTICÐ 1 162 Coud Sfteet NE Sâl€$, OR 9?301 Tel9503) 934-4400 / Fax: (503) 378-5017

EXHIBIT A Page 2 of 2


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of

Interview of Robert Simonton

, On

08/31/2015

Jag,

2 of 19

SIMONTON to manage construction of OIT's geothermal power plant because OIT was having issues getting construction started. ZEMKE hired SIMONTON to work on finding financing for the project and because ZEMKE knew SIMONTON had been involved in the project prior to leaving OUS. SIMONTON's duties for the geothermal plant project at OIT included creating a budget that was presented to the Oregon Board of Higher Education and obtaining the Governor's sign-off on the budget. In SIMONTON's position in the Capital Projects department, SIMONTON was able to secure more money for renewable energy, rehabilitation and repair projects than all of his predecessors combined.

SIMONTON was employed by OUS for approximately 13 years. OUS oversaw construction on all of the OUS campuses at the start of the projects, but the projects were eventually turned over to individual campuses to manage after construction was underway. Oregon Department of Energy Business Energy Tax Credit Projects All of the OUS campuses were interested in having sustainability projects built. Each campus's president signed the American College and University President Climate Commitment (ACUPCC). By signing the ACUPCC, the OUS presidents were showing their commitment to making their campuses carbon neutral by a specific date. SIMONTON was part of that initiative and instructed by his boss to help each campus accomplish this goal. To help meet this goal, OUS put out a Request for Proposals (RFP) in 2008 to find a company to perform solar surveys for each OUS campus. SIMONTON was part of the selection committee to review responses to the RFP. There were approximately two contractors who responded to the RFP, one of which was BacGen Technolgies (BACGEN). The selection committee met quarterly and decided on BACGEN as the contractor to perform the solar surveys. The state of Oregon has a procurement system that posts RFPs on the Oregon Procurement Information Network (ORPIN). Businesses respond to posted RFPs directly on the ORPIN website. • In addition to the RFP process, OUS has a retainer program that consists of hundreds of contractors who have been preselected to perform work for OUS. The retainer program allows campuses to directly hire contractors without going through the RFP process. Campuses were able to directly hire contractors from the retainer list for contracts up to $25,000. For professional services projects between $25,000 and $100,000 the campuses were required to choose between three contractors. For projects up to $1 million, campuses were required to post the project on ORPIN. Projects above $1 million required an even more formal bidding processs.

EXHIBIT C, Page 2 of 19

2149


as they typically work remotely. Earlier today Mr. Shain found out about your email and the attached CID, which was apparently sent to a BacGen general email box that is not often checked. Mr. Shain send forwarded to me the email that you had send to BacGen, but the CID attachment that Mr. Shain forwarded to me is corrupt, and it was corrupt when he tried to open it today as well. Could you please send the CID (and any other pertinent communications) directly to me? Mr. Shain is out-of-town until August 31, so please give me a call to discuss next steps. Thanks. Jim

Jim McDermott t 503.944.6025 f 503.295.1058 jmcdermott@balljanik.com

We advise you that any discussion of federal tax matters in this email is not intended or written to be used, and may not be used by you or any taxpayer, to (a) avoid penalties under the Internal Revenue Code, or (b) promote, market or recommend to any other party any transaction or matter addressed herein. All taxpayers should seek independent tax advice.

*****CONFIDENTIALITY NOTICE***** This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. ************************************

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EXHIBIT B Page 2 of 2


-I of 19-

FD-302 (Rev. 5-8-10)

FEDERAL BUREAU OF INVESTIGATION

Date of entry

11/03/2015

Robert Allen Simonton (SIMONTON), aka Bob Simonton, date of birth (DOB) , Social Security Number ( , residence address , employment telephone number , cellular telephone number ( , was interviewed by Federal Bureau of Investigation (FBI) Special Agent (SA) Joseph T. Fangon and Oregon Department of Justice (ODOJ) SA Todd Gray at the University of Utah in Salt Lake City, Utah. After being advised of the identities of the interviewing Agents and the nature of the interview, SIMONTON provided the following information: 08/31/2015 Interview Session

In approximately October 2011, SIMONTON was notified by the Oregon University System (OUS) that his employment contract was not going to be renewed. OUS decided not to renew SIMONTON's contract partially for political reasons and partially because OUS was going to close. SIMONTON's contract with OUS officially ended on 06/30/2012. The political reason for the non-renewal of SIMONTON's contract was because Portland State University (PSU) hired a new President, Wim Wiewel (W. WIEWEL), and part of the agreement to hire W. WIEWEL included also hiring his wife, Alice Wiewel (WIEWEL), for a position within OUS. The position WIEWEL was hired for was SIMONTON's. WIEWEL was hired by OUS in approximately 10/2011. Prior to SIMONTON leaving OUS, SIMONTON was supervising WIEWEL for a few months until WIEWEL found a job in the private sector at an architectural firm in Portland, Oregon. Toward the end of SIMONTON's employment with OUS all of SIMONTON's employees were terminated and SIMONTON had to take on all of the duties within OUS's Capital Projects department. From 08/2012 through 12/2012, SIMONTON was employed by the Oregon Health Sciences University (OHSU) as a consultant for OHSU's design and construction department. SIMONTON was specifically hired by OHSU to investigate allegations of fraud within the department against a project manager who was using OHSU resources to remodel his personal residence. From 02/2013 through 03/2014, SIMONTON was employed by Oregon Institute of Technology (OIT) as a consultant and project manager for the construction of a geothermal power plant. Maryann Zemke (ZEMKE) hired

Investigation on 08/31/2015 File# 194A—PD-6205754 by

at

Salt Lake City, Utah, United States (In Person) Date drafted 09/08/2015

Joseph T. Fangon

This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. EXHIBIT C, Page 1 of 19 2148


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of

Interview of Robert Simonton

, On

08/31/2015

Jag,

2 of 19

SIMONTON to manage construction of OIT's geothermal power plant because OIT was having issues getting construction started. ZEMKE hired SIMONTON to work on finding financing for the project and because ZEMKE knew SIMONTON had been involved in the project prior to leaving OUS. SIMONTON's duties for the geothermal plant project at OIT included creating a budget that was presented to the Oregon Board of Higher Education and obtaining the Governor's sign-off on the budget. In SIMONTON's position in the Capital Projects department, SIMONTON was able to secure more money for renewable energy, rehabilitation and repair projects than all of his predecessors combined.

SIMONTON was employed by OUS for approximately 13 years. OUS oversaw construction on all of the OUS campuses at the start of the projects, but the projects were eventually turned over to individual campuses to manage after construction was underway. Oregon Department of Energy Business Energy Tax Credit Projects All of the OUS campuses were interested in having sustainability projects built. Each campus's president signed the American College and University President Climate Commitment (ACUPCC). By signing the ACUPCC, the OUS presidents were showing their commitment to making their campuses carbon neutral by a specific date. SIMONTON was part of that initiative and instructed by his boss to help each campus accomplish this goal. To help meet this goal, OUS put out a Request for Proposals (RFP) in 2008 to find a company to perform solar surveys for each OUS campus. SIMONTON was part of the selection committee to review responses to the RFP. There were approximately two contractors who responded to the RFP, one of which was BacGen Technolgies (BACGEN). The selection committee met quarterly and decided on BACGEN as the contractor to perform the solar surveys. The state of Oregon has a procurement system that posts RFPs on the Oregon Procurement Information Network (ORPIN). Businesses respond to posted RFPs directly on the ORPIN website. • In addition to the RFP process, OUS has a retainer program that consists of hundreds of contractors who have been preselected to perform work for OUS. The retainer program allows campuses to directly hire contractors without going through the RFP process. Campuses were able to directly hire contractors from the retainer list for contracts up to $25,000. For professional services projects between $25,000 and $100,000 the campuses were required to choose between three contractors. For projects up to $1 million, campuses were required to post the project on ORPIN. Projects above $1 million required an even more formal bidding processs.

EXHIBIT C, Page 2 of 19

2149


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of Interview of Robert Simonton

On 08/31/2015 jag, 3 of 19

SIMONTON clarified that there was no need to choose from multiple contractors for projects up to $100,000. For projects up to $100,000 the campuses were allowed to directly hire a contractor to perform work. For contracts up to $25,000 campuses were able to directly hire contractors that were not on the retainer list. SIMONTON reviewed two contracts Bates stamped OUS000072 through OUS000078 (Supplement No. OUS-09-P-130-488) and OUS000066 through OUS000071 (Supplement No. OUS-09-P-130-486). SIMONTON acknowledged that BACGEN must have been selected through the retainer program because the related supplement contracts with Oh Planning and Design (OH PLANNING) were supplements to retainer contracts. SIMONTON did not know of BACGEN or Martin Shain (SHAIN) prior to BACGEN being hired to perform the solar surveys for OUS. BACGEN's compensation was based on the solar studies produced and BACGEN's work to move the solar projects toward construction. To obtain financing for the OUS solar projects, OUS had to rely on a public/private partnership because SIMONTON was denied funding from the OUS budget for the projects. As a result, SIMONTON was required to find different sources of funding for the projects. The site surveys performed by BACGEN identified suitable ground and roof mount locations for solar arrays at each of the OUS campuses and the total power output for each site. BACGEN was also responsible for identifying ways to secure financing for OUS's solar projects. One option suggested by SHAIN was to use a Power Purchase Agreement (PPA). [Writer's note: a PPA is a contract that obligated OUS to purchase power generated by a solar array and obligated the builder of the array to obtain financing for the array.] The campuses had no money to fund the solar projects, but they had a surplus of land. The solar feasibility study created by BACGEN was used in an RFP to hire a solar developer to build the solar arrays. The facilities directors at each of the OUS campuses were on a committee that chose the developer for the solar projects. Part of the RFP specified the campuses wanted to purchase power from the solar arrays at the same or a lower rate than they were currently paying. The RFP was left open-ended to allow responding developers to determine the number of solar arrays they would commit to install. The solar projects were intended to be "show pieces" for each contractor involved in the development of the projects.

EXHIBIT C, Page 3 of 19

2150


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of Interview of Robert Simonton

,On

08/31/2015

Jag,

4 of 19

In 2009, SunEdison (SUNEDISON) was chosen as the developer for the OUS solar projects. To fund part of the project SUNEDISON was required to identify investors who would purchase Oregon Department of Energy (ODOJ) Business Energy Tax Credits (BETCs) related to he projects. After SUNEDISON was chosen the BETC rules changed and were no longer available and SUNEDISON was unable to move forward on the projects. SUNEDISON also had an issue with a "Non-Appropriations" clause in the contract with OUS. The clause allowed the state to cut funding to pay for the power under the PPA with SUNEDISON if the state did not have the budget for that purpose. Without the BETCs to finance OUS's solar projects no developer was going to commit to building OUS's solar arrays. This was because the BETCs covered 50% of the total project costs. Without the BETCs a developer would have needed to charge between eight (8) and nine (9) cents per kilowatt hour. OUS was currently paying approximately five (5) cents per kilowatt hour and was not willing to pay the difference. Another issue with the BETCs was that any developer applying for the tax credits needed an investor with a tax liability in Oregon that matched the net value of the credit. The credits needed to be used within a five year period and SUNEDISON was having difficulty finding an investor with a high enough tax liability to purchase the BETCs. As a result, SUNEDISON notified OUS that it would not move forward with the solar projects. SIMONTON decided OUS could apply for the BETCs on its own. SIMONTON consulted with SHAIN on how OUS would be able to obtain the tax credits and use them to fund the projects. SIMONTON's plan was for OUS to obtain the BETCs, build the projects, and OUS would sell the BETCs to "pass-thru partners" to cover costs for building the projects. In 04/2010, OH PLANNING was hired to create architectural drawings to be used in the applications for the BETCs. BACGEN was a subcontractor on the contract with OH PLANNING because BACGEN was going to create the engineering drawings for the applications. OH PLANNING would handle the logistics to submit the applications. At this point, OUS was incurring increased costs to move the solar projects forward. SIMONTON chose OH PLANNING because he worked with OH PLANNING previously on an energy center project in 2008 or 2009. SIMONTON needed to hire an architect to work on the BETC applications because BACGEN did not have the staff capable of producing the architectural drawings required for the BETC applications. BACGEN was then responsible for putting the applications together and submitting them to ODOE and for handling the technical component of calculating how much power would be generated by the OUS projects. SIMONTON clarified that OH PLANNING

EXHIBIT C, Page 4 of 19

2151


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of Interview of Robert Simonton

,On

08/31/2015

Jag,

5 of 19

was responsible for putting the BETC application packages together and submitting them to ODOE, not BACGEN, as previously stated. SIMONTON chose OH PLANNING to work with BACGEN because of his familiarity with OH PLANNING's work on the energy center project. Deb France (FRANCE) from OH PLANNING was the most experienced of the contractors who responded to the RFP for the BETC applications, which is why SIMONTON chose OH PLANNING to work with BACGEN. Cindy Starke (STARKE), legal counsel for OUS, questioned SIMONTON on why OH PLANNING was needed to work with BACGEN and why a supplemental contract was being used. SIMONTON explained to STARKE, that on many projects, an architect is hired and an engineer is hired by the architect as a subcontractor. SIMONTON recalled SHAIN and BACGEN were never on OUS's retainer list and any contract SHAIN was hired for directly would have been limited to $25,000. One way to increase this amount was to use another contractor on the retainer list who would then hire SHAIN as a subcontractor. SIMONTON likely needed to help SHAIN work with a contractor on the retainer list because SHAIN needed to be paid more money. SIMONTON clarified that OH PLANNING was not hired through an RFP process and was a direct hire from the retainer list. OUS used the RFP process to hire BACGEN because there were no contractors on the retainer list capable of producing the solar feasibility studies. To keep SHAIN on board with the projects, SIMONTON called FRANCE to assist with obtaining the BETCs and to work with SHAIN. FRANCE provided a proposal for creating the BETC applications and SHAIN agreed to work with FRANCE. This would have been allowed under OUS's procurement rules. The procurement rules for OUS were more flexible than the normal Oregon state procurement rules. When SIMONTON applied for the BETCs for the OUS solar projects he did so with plans created by OH PLANNING. SIMONTON told Jay Kenton (KENTON) that he was planning to use BETCs to fund the OUS solar projects. This decision was later codified in the Board of Higher Education docket. SHAIN's purpose in this process was to advise SIMONTON on how the BETCs could be obtained. BACGEN had extensive experience in waste water treatment facilities and was extremely familiar with ODOE's rules and regulations. BACGEN likely performed most of the work related to the supplemental contracts with OH PLANNING because the BETC applications were for solar

EXHIBIT C, Page 5 of 19

2152


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of Interview of Robert Simonton

On 08/31/2015

page

6 of 19

projects and included a lot of technical components. OH PLANNING's part of the applications was minimal. OH PLANNING drew up plans for where the solar arrays could be built and how. SIMONTON received the BETC applications from FRANCE. FRANCE generated the applications with SHAIN's assistance and then provided them to SIMONTON. SIMONTON then submitted the applications to ODOE. SIMONTON knew that both architectural and engineering work was required for the OUS projects and that is why SIMONTON identified OH PLANNING as a partner to work with BACGEN. A new contractor was chosen to develop the OUS BETC projects approximately 14 months after SUNEDISON withdrew from the projects. The BETC preliminary certificates were received in approximately 05/2010. At the time SIMONTON submitted the BETC applications, OUS had not yet found a contractor to replace SUNEDISON. The applications were submitted as if OUS was going to be the contractor for the project. The plan was then to find a contractor that would take the credits as a pass-through partner. After SUNEDISON dropped out of the OUS projects SHAIN and SIMONTON were constantly looking for investors for the projects. SIMONTON attended one meeting with SHAIN at a Bank of America office in Portland, Oregon to discuss having Bank of America sign on as investor. SHAIN must have had the contact at Bank of America because finding investors to purchase tax credits was what SHAIN was known for. Up to this point in the process, SHAIN had only performed the feasibility study for the OUS BETC projects and had been paid approximately $25,000 for the study and $99,000 for submitting the BETC applications. SHAIN continued to work on the projects passed this point even though he was not obligated to do so. SIMONTON was unsure why SHAIN continued to work on the projects. SIMONTON assumed it was because SHAIN was passionate about seeing the projects completed. SIMONTON understood OUS did not need to go through another RFP process to replace SUNEDISON because any prospective contractor would be exempt from the procurement rules. This was because electricity generating projects were exempt from the procurement rules. The only requirement was that the Board of Higher Education needed to review any leases associated with the projects. Wilson, Sonsini, Goodrich and Rosatti (SONSINI) was hired to help structure the PPA and Site License Agreements (SLAB) for each of the OUS BETC projects. Renewable Energy Development Corporation (REDCO) was picked to replace SUNEDISON because SHAIN worked with REDCO previously. SIMONTON reviewed the ODOE BETC applications for OUS's solar projects. SIMONTON could not recall why Solar Nation (SOLAR NATION) was listed on the

EXHIBIT C, Page 6 of 19

2153


FD-302a (Rev. 05-08-10)

194A-PD-6205754 Continuation of FD-302 of Interview of Robert Simonton

,On 08/31/2015

Jag, 7

of 19

application for the projects. The applications were generated by OH PLANNING and BACGEN and they must have put SOLAR NATION's information in the applications. The name SOLAR NATION sounded familiar to SIMONTON, but SIMONTON could not recall that name being in the applications for the projects. Ryan Lambert (LAMBERT), who was listed as the point of contact (POC) for SOLAR NATION on the applications, worked for REDCO. It was SIMONTON's understanding at the time the applications were submitted that they would be submitted without listing a contractor. SIMONTON also understood that at this point a new contractor had not been chosen to take over the projects. SHAIN would not have had the authority to choose a contractor. SIMONTON recalled speaking with his bosses at OUS about choosing REDCO because they claimed to have investors to purchase the BETCs. SHAIN also claimed to have spoken to someone at REDCO and looked into REDCO's investors MDU Resources (MDU RESOURCES). SIMONTON recalled seeing an email related to MDU RESOURCES_. REDCO may also have needed to provide its financials to move the OUS projects forward, but SIMONTON was unsure of who REDCO would have submitted them to. SIMONTON put REDCO in contact with SONSINI to work on the PPAs and SLAs for the projects after REDCO was chosen to replace SUNEDISON. REDCO was not involved in the OUS projects until approximately 04/2011 or 05/2011. It was possible SHAIN put SOLAR NATION's information in the BETC applications for OUS's projects because SHAIN needed information for a contractor before the applications could be submitted. SHAIN may have used SOLAR NATION's information as a "placeholder." This was likely the case because at the time the applications were submitted OUS had not yet chosen a contractor to replace SUNEDISON. The BETC Preliminary Certificates were being used as a selling point for the projects to find potential investors or contractors to develop the projects. Obtaining the BETC Preliminary Certificates occurred within the 14 months between SUNEDISON withdrawing from the project and REDCO being chosen as SUNEDISON's replacement. SIMONTON reviewed the signature on the bottom of page 11 of the BETC Application that appeared above his type written name. SIMONTON agreed that this was his signature on the application. SIMONTON also reviewed the drawings and pictures included with the applications and thought they must have been created by OH PLANNING. BACGEN did not have the expertise to create the drawings included in the applications. SIMONTON met LAMBERT only one time at the ground breaking ceremony for

EXHIBIT C, Page 7 of 19

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FD-302a (Rev. 05-08-10)

194A-PD6205754 Continuation of FD-302 of

Interview of Robert Simonton

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the OIT BETC project in 08/2011. The solar panels that appeared in the articles for the groundbreaking were just props that were used for display purposes only. SHAIN never discussed using another contractor's information as a place holder in the BETC applications. It was SIMONTON's idea to apply for the BETC Preliminary Certificates so they could be used to attract new contractors for the project. The applications were submitted approximately three months after SUNEDISON withdrew from the projects. REDCO was hired approximately one year later. There was never a discussion regarding SHAIN being paid by the developer of the OUS BETC projects after the projects were completed. SIMONTON was unaware that SHAIN was paid by SolarCity (SOLARCITY) for helping SOLARCITY sell the BETCs associated with the projects. SIMONTON recalled OH PLANNING was also hired to design a display kiosk for the OIT geothermal project. SIMONTON could not recall OH PLANNING being hired to help sell the BETCs associated with the geothermal plant. OIT was never in a position that allowed OUS to sell the BETCs for the projects. In REDCO's proposal for the OUS BETC projects they proposed 4.1 cents per kilowatt hour as the rate for the PPAs for the OUS BETC projects. OUS did not set the amount listed in the PPA. The OUS campuses were paying approximately five (5) cents per kilowatt hour and wanted to either maintain that level or pay less for the power generated by the solar arrays. This would have been set out in the RFP associated with the projects. The contract for the solar arrays was also negotiated to require the owner of the project to donate the panels to the campuses at the end of the 20 year lease. REDCO

SHAIN proposed REDCO as the contractor to replace SUNEDISON. SHAIN was working with REDCO on a project in Utah and called SIMONTON to discuss hiring them. SIMONTON did not meet with anyone associated with REDCO until the ground breaking ceremony at OIT. SIMONTON was comfortable bringing REDCO on as the new contractor because they supposedly had two Fortune 500 companies backing them as investors. SIMONTON also had no issues with them because there was still no risk to the school to pay for any of the construction of the projects. OUS had no obligations until the projects were completed and certified. If REDCO was unable to complete the projects OUS owed REDCO nothing.

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SIMONTON was aware that SPOWER would be getting involved in the BETC projects around the time contract negotiations were ending with REDCO. As REDCO was withdrawing as the contractor for the projects, SIMONTON contacted ODOJ attorney Kendall Boden (BODEN) about cancelling the contract with REDCO to switch to SPOWER. BODEN informed SIMONTON that SPOWER purchased REDCO's assets during the bankruptcy process. SPOWER ended up not taking over REDCO's contract because SPOWER's investors were not interested in the project. At the time SIMONTON was ending his employment with OUS he was going through a divorce, he was running out of money and was close to being homeless. It was an extremely stressful time, but he remained fully involved in the process of trying to find a contractor to complete the BETC projects. SIMONTON remained involved because he wanted to be able to hand off the projects to his replacement when his time with OUS was complete. After leaving OUS, SIMONTON was hired by OIT to manage the completion of the geothermal power plant. SIMONTON also worked with the Oregon legislature to make changes to laws and rules related to the project to allow OIT to enter into an interconncetion and net metering agreement for the project. SHAIN is currently working with the state of Utah helping the state set up renewable energy projects. 09/01/2015 Interview Session At the conclusion of SIMONTON's interview on 08/31/2015, SIMONTON reviewed his personal files related to the OUS BETC projects and found a folder containing a copy of BACGEN's feasibility study for the projects. SIMONTON also reviewed the letter he wrote to ELIAS and noticed that it had been signed with an electronic version of his signature. This indicated to SIMONTON that the letter was emailed to ELIAS and was not mailed as he previously recalled. SIMONTON also reviewed his travel records to confirm his meeting with SHAIN at the RAM restaurant. Specifically, SIMONTON reviewed records for 05/2012 and 06/2012, which would have been shortly before the date of SIMONTON's letter to ELIAS on 06/22/2012. The travel records did not indicate any travel to Salem, Oregon during those months. This indicated that his meeting with SHAIN at the RAM did not involve a discussion about the extensions and must have occurred at an earlier date and covered different aspects of the BETC program. SIMONTON did recall meeting with SHAIN in Salem, Oregon in June 2011. In 2009, a contract was issued to SHAIN by OUS for consulting services

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had related to the BETC projects. During that meeting they also discussed the letters SIMONTON received about the BETC sunset dates. This meeting coincided with SIMONTON's termination. SIMONTON met with SHAIN and told him he needed to figure out what was needed to get an extension for the projects. Sending the letter to ODOE was one of the last things SIMONTON did prior to ending his employment with OUS SIMONTON was upset over the way his employment was terminated, but he wanted to make sure the projects were finished because he spent so much time trying to get them completed. SIMONTON and SHAIN met at the RAM restaurant in Salem, Oregon to discuss the extensions for the projects. SIMONTON and SHAIN were both aware that without an extension the projects would not be built. The items SIMONTON and SHAIN discussed that they had that would qualify the projects for an extension included: interconnection agreements, soil samples done by engineers, construction preparation work, and a letter from REDCO. SIMONTON recalled he gave SHAIN the letter from REDCO during their meeting at RAM. All of the other items came from SHAIN or SHAIN claimed he had those items. SIMONTON received the REDCO letter dated 12/2011 approximately one year before he wrote his letter to ODOE. REDCO likely sent SIMONTON the letter because they were aware that OUS was going to need an extension to qualify for the BETCs past the sunset date. SIMONTON would have kept a hard copy of the REDCO letter in his working file for the OUS BETC projects. In 01/2012, SIMONTON learned REDCO filed for bankruptcy. SIMONTON did not have an explanation for why REDCO would have sent the letter to get an extension if REDCO was already in the process of filing for bankruptcy when the letter was written. SIMONTON may have worked with SPower (SPOWER), which took over for REDCO, to try and move the projects forward. Eventually, SPOWER decided not to move forward with the projects because the PPA negotiated by REDCO was too low. SIMONTON definitely did not request the letter from REDCO, but did recall receiving it. The only items SIMONTON ever received from REDCO were REDCO's initial bid and the letter for the extension. SIMONTON could not recall using the letter from REDCO for any purpose at the time it was initially received. SIMONTON just received the letter, placed it into his file for the BETC projects and did not discuss the letter with anyone until his meeting with SHAIN at the RAM restaurant. SIMONTON could not recall discussing the letter he wrote to ELIAS or anything specific SHAIN brought to the meeting. SIMONTON and SHAIN did not discuss fabricating any documents that were

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submitted to ODOE in order to get extensions for the OUS BETC projects. The first time SIMONTON saw the invoice from Solar Foundation Systems (SFS), with invoice number REDCO-OUS-0225-11, was after receiving a copy from Oregonian Reporter Ted Sickenger. SIMONTON corrected this statement and claimed he received a copy of the invoice with the letter from REDCO and that the invoice may have been attached to the letter when he received

it. SHAIN did not show SIMONTON the documents he claimed he was going to send to ODOE for an extension, but SIMONTON and SHAIN did discuss the items during the meeting they had at the RAM restaurant. SHAIN discussed an interconnection agreement with Pacific Corp for the projects and amendments for the BETC projects to allow OUS to consolidate the projects from every school down to just a few locations. SHAIN discussed work done at each site. SIMONTON looked up the ODOE rules related to the BETC program on the internet and created his letter based on what he found online. REDCO seemed to be under pressure to get the OUS projects started so it would have made sense that they purchased items in preparation to start construction. The "initial placements" listed on the SFS invoice may have referred to items purchased that were going to be installed at the campuses. SIMONTON reviewed the invoice and commented that it was odd that Eastern Oregon University (EOU) was on the invoice because that campus was never an option for a BETC project because of interconnection issues related to Oregon Trail Electric. After SIMONTON was contacted by Ted Sickinger (SICKINGER), SIMONTON called SHAIN to confront him about the allegations that fraudulent documents were submitted to ODOE to receive extensions for the projects. SHAIN claimed the extensions were granted based on more than just the documents mentioned in the Oregonian article. SIMONTON forwarded copies of the documents mentioned in the article to SHAIN by email from SIMONTON's personal email address. [Writer's note:SIMONTON forwarded Writer a copy of the above referenced email at the conclusion of the interview.] SHAIN explained to SIMONTON that the invoice from SFS was valid and that many more documents were given to ODOE in addition to the documents referenced by SICKINGER. SIMONTON wanted SHAIN to tell him how to respond to SICKINGER's questions. SHAIN told SIMONTON that ODOE had all of the documents SHAIN submitted to ODOE for the projects and ODOE was aware of all of the work that was done on the projects. SHAIN and SIMONTON discussed that SHAIN submitted REDCO's letter and the SFS invoice to ODOE in addition

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to other documents that SIMONTON and SHAIN discussed during their meeting at the RAM restaurant. SHAIN did not try to defend the validity of the documents when SIMONTON confronted him. SHAIN did not give SIMONTON any valid explanations for the fraud allegations during their initial phone call. SIMONTON contacted SHAIN after being contacted by SA Fangon to let SHAIN know he had been contacted by the FBI and ODOJ. During all of their conversations, SHAIN never gave an explanation regarding the creation of the documents or where they came from. Instead, SHAIN focused on other documents that were supposedly submitted to ODOE for the extensions. SHAIN and SIMONTON also spoke during a site visit SHAIN made to UofU just prior to SIMONTON's interview. SIMONTON clarified he and SHAIN discussed that SIMONTON provided SHAIN with both the invoice and letter from REDCO with other documents. SIMONTON has not spoken to anyone except SHAIN regarding the documents provided to ODOE to request an extension for the BETC projects. On 01/27/2015, SIMONTON forwarded the email he received from SICKINGER to SHAIN. No other emails were exchanged regarding the subject and the only contact they had was on the phone or in person. SIMONTON acknowledged that at the time OUS needed the extensions for the BETC projects no actual construction had been performed on the projects. Also, no items had been purchased in preparation for construction. Oregon Electric had performed some soil analysis and 'a small amount of drilling. SIMONTON never contacted REDCO or any of the other subcontractors to request invoices for any work on the projects. In the middle of 2012, SOLARCITY was chosen as the contractor to replace REDCO. SIMONTON was involved in choosing SOLARCITY as the replacement contractor and was aware that SOLARCITY did perform construction on the projects to move them forward toward completion. SIMONTON contacted David Ebsen (EBSEN), the former Facilities Manager for OIT regarding the extension request. SIMONTON wanted to find out if EBSEN recalled anyone coming to the OIT campus to perform work on the BETC projects prior to the required date to receive an extension. EBSON recalled that people came to the OIT campus for the projects, but could not recall specific work that was performed and did not have any documentation regarding the visits or records for any work that was done. SIMONTON clarified that he contacted EBSEN after SIMONTON was contacted by SICKINGER.

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Copies of handwritten notes created by SIMONTON and documents titled "Board Docket" are attached as lA items.

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SIMONTON was aware that SPOWER would be getting involved in the BETC projects around the time contract negotiations were ending with REDCO. As REDCO was withdrawing as the contractor for the projects, SIMONTON contacted ODOJ attorney Kendall Boden (BODEN) about cancelling the contract with REDCO to switch to SPOWER. BODEN informed SIMONTON that SPOWER purchased REDCO's assets during the bankruptcy process. SPOWER ended up not taking over REDCO's contract because SPOWER's investors were not interested in the project. At the time SIMONTON was ending his employment with OUS he was going through a divorce, he was running out of money and was close to being homeless. It was an extremely stressful time, but he remained fully involved in the process of trying to find a contractor to complete the BETC projects. SIMONTON remained involved because he wanted to be able to hand off the projects to his replacement when his time with OUS was complete. After leaving OUS, SIMONTON was hired by OIT to manage the completion of the geothermal power plant. SIMONTON also worked with the Oregon legislature to make changes to laws and rules related to the project to allow OIT to enter into an interconncetion and net metering agreement for the project. SHAIN is currently working with the state of Utah helping the state set up renewable energy projects. 09/01/2015 Interview Session At the conclusion of SIMONTON's interview on 08/31/2015, SIMONTON reviewed his personal files related to the OUS BETC projects and found a folder containing a copy of BACGEN's feasibility study for the projects. SIMONTON also reviewed the letter he wrote to ELIAS and noticed that it had been signed with an electronic version of his signature. This indicated to SIMONTON that the letter was emailed to ELIAS and was not mailed as he previously recalled. SIMONTON also reviewed his travel records to confirm his meeting with SHAIN at the RAM restaurant. Specifically, SIMONTON reviewed records for 05/2012 and 06/2012, which would have been shortly before the date of SIMONTON's letter to ELIAS on 06/22/2012. The travel records did not indicate any travel to Salem, Oregon during those months. This indicated that his meeting with SHAIN at the RAM did not involve a discussion about the extensions and must have occurred at an earlier date and covered different aspects of the BETC program. SIMONTON did recall meeting with SHAIN in Salem, Oregon in June 2011. In 2009, a contract was issued to SHAIN by OUS for consulting services

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to be performed by BACGEN for the BETC projects. The contract was not related to OUS's retainer program. The contract reviewed was for $5,000 to be paid to SHAIN for travel expenses related to SHAIN's work on the OUS BETC projects. This contract was different from the contract for the feasibility study created by BACGEN for $25,000. The $5,000 contract for SHAIN was related specifically to travel SHAIN did for the BETC projects. SHAIN would have submitted travel reimbursement forms documenting his expenses. SIMONTON noted that SHAIN's contracts included the standard "conflict of interest" clause present in all OUS contracts, which were intended to protect OUS. SIMONTON assumed that if SHAIN was being paid by SOLARCITY, in relation to the OUS BETC projects, that would be a conflict of interest with SHAIN's contracts with OUS. SIMONTON reviewed a copy of SHAIN's contract with OUS, contract number 2009-82 and noted that language in the "conflict of interest" clause was changed. The changes may have been made by SHAIN during the contract negotiation process. SIMONTON was directly involved in negotiating SHAIN's contract for the BETC projects. SIMONTON received the letter from REDCO sometime in 01/2012, shortly after SIMONTON returned from Christmas vacation. SIMONTON received the letter after he had been moved to a smaller office in anticipation of his termination at OUS. The letter from REDCO was received shortly after SHAIN contacted SIMONTON to tell him about REDCO filing for bankruptcy. SIMONTON was unclear on whether he contacted SHAIN after receiving the letter, but he did not discuss the letter with anyone else at OUS. SHAIN was carbon copied (cc'd) on the letter because it was written at the bottom of the letter he received. SIMONTON also recalled that the meeting he had with SHAIN at the RAM restaurant must have occurred after SIMONTON's employment with OUS was terminated. SIMONTON met with SHAIN because he was using SHAIN as a reference on job applications. The meeting occurred in 07/2012 or 08/2012 because that was when SIMONTON was looking for work. SIMONTON was hired shortly thereafter by OHSU as a consultant. Any conversation SHAIN and SIMONTON had regarding the BETC extensions would have been over the phone close to the date of SIMONTON's letter dated 06/22/2015. The last time SIMONTON spoke to SHAIN was on 08/26/2015, during SHAIN's site visit to the UofU campus. SHAIN and SIMONTON walked around the UofU campus and discussed that SIMONTON had been contacted by law enforcement regarding the BETC projects. SIMONTON asked SHAIN for information regarding the fraudulent documents that were submitted to ODOE for the OUS BETC projects. SHAIN claimed he submitted more documents than were referenced in

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the Oregonian article. SHAIN was visibly upset and nervous about the situation and repeatedly mentioned documents other than the REDCO letter and SFS invoice that ODOE relied on to grant extensions for OUS to complete the BETC projects. SHAIN did not name specific documents that were submitted to ODOE. In SIMONTON's letter he stated that SHAIN would submit whatever documentation was needed to receive an extension because SHAIN was the consultant for the project and was hired specifically to liaison with ODOE. SHAIN was supposed to be OUS's "go-to-guy" to figure out whatever needed to be done to take OUS's BETC projects from start to finish. SHAIN showed SIMONTON a letter outlining what work was performed on the projects and what had been reviewed by ODOE over the course of the projects. SHAIN claimed that based on all of that information, what SHAIN had submitted specifically for the extensions, and because SHAIN continually kept ODOE informed about what was being done on the projects the extensions were granted. SHAIN is in Utah approximately once a month and SIMONTON has met with SHAIN approximately three times since SIMONTON started working for UfoU. SIMONTON and SHAIN became friends after working on the OUS BETC projects because they worked well together during the process. SIMONTON estimated he met with SHAIN during 08/2014, 03/2015 or 04/2015 and on 08/26/2015. SIMONTON met with SHAIN in 08/2014 for dinner at the Red Iguana restaurant in Salt Lake City. SHAIN and SIMONTON discussed current projects SHAIN was working on at the time. SIMONTON's phone contact with SHAIN is sporadic. Sometimes SIMONTON may contact SHAIN multiple times in a month and sometimes it may only be one or two times. SHAIN met SIMONTON at SIMONTON's house in 04/2015, after SIMONTON was contacted by SICKINGER. SHAIN and SIMONTON discussed what they should say if they were confronted about documents related to the projects. SHAIN and SIMONTON met for approximately two hours. During their meeting, SHAIN continually deflected SIMONTON's direct questions related to the REDCO letter and SFS invoice. SHAIN instead pointed to other documents he claimed ODOE relied on to grant extensions for the OUS projects. Most of their conversation focused on how ODOE repeatedly changed the rules that applied to the BETC program. SHAIN and SIMONTON discussed whether they were "grandfathered in" to the program because they had BETC preliminary certificates and would have received an extension even without submitting additional documents. SIMONTON acknowledged that at the time the documents were submitted to ODOE, SHAIN and SIMONTON both knew the projects were not

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"grandfathered in" to the program and that is why SHAIN submitted documents to receive an extension. SIMONTON and SHAIN also discussed that DAVIES claimed he did not sign the REDCO letter and the signature on the letter did not match his own. SIMONTON asked SHAIN why DAVIES would have bothered to write the letter after REDCO had no stake in the project, but SHAIN could not give SIMONTON an answer. SIMONTON discussed the issues surrounding the extensions for the OUS projects with his live-in girlfriend, Angie Duchi (DUCHI), telephone number (541)343-7240. SIMONTON and DUCHI have discussed the Oregonian article about the BETC projects, but DUCHI has not seen any documents related to the projects. DUCHI was not present for SIMONTON and SHAIN's conversation that took place on 08/26/2015. SHAIN did not want to talk to SIMONTON with DUCHI around and asked if he and SIMONTON could go for a drive to discuss the article. SHAIN wanted to talk with SIMONTON alone. When the issue of whether the OUS projects would need an extension came up SIMONTON let SHAIN handle it. During the conversations SHAIN and SIMONTON had after the Oregonian article was released, SHAIN claimed SIMONTON provided SHAIN with the letter from REDCO. SIMONTON kept files related to projects he did during his time at OUS in the event he would need them as examples for future projects. Prior to meeting with SA Fangon and SA Gray, SIMONTON created a timeline of events related to the OUS BETC projects and extensions. SIMONTON did not consult with SHAIN prior to preparing his notes. REDCO sent a "draft docket" to KENTON and the Board of Higher Education secretary in 05/2011 related to starting the OUS projects. SIMONTON's primary responsibilities related to contracts with OUS were that he worked with OUS and ODOJ attorneys on the legal sufficiency of the contracts. SIMONTON would contact Hillary Bounds (BOUNDS) or George Marlton (MARLTON) and all of them would do a line by line review of any contracts. The contracts usually consisted of standard language and contractors would ask for changes based on the contractor's specific needs. In SHAIN's contract with OUS, SHAIN would have been the person who requested the change to the conflict of interest clause. After the change was made either BOUNDS or MARLTON would have reviewed the contract for legal sufficiency.

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Drafting contracts was a collaborative process between SIMONTON, BOUNDS and MARLTON, but SIMONTON relied on BOUNDS and MARLTON to ensure there were no legal issues related to contracts. Other than SHAIN's situation, SIMONTON has not had another project where a consultant, hired by OUS for a specific contract, was allowed to work as a subcontractor for a contractor hired to build the same project. In preparation for SIMONTON's interview he reviewed a proposal from REDCO that he kept in his personal files on the projects he did while at OUS. SIMONTON also had letters from ODOE related to the sunset provisions of the BETC program and recalled the letters were initially received by WIEWEL by email and WIEWEL forwarded the emails to SIMONTON. SIMONTON then forwarded the emails to SHAIN. SIMONTON estimated that he received the emails in approximately 05/2012. SIMONTON and SHAIN met to discuss the documents needed to receive an extension between the time SIMONTON forwarded the emails to SHAIN and when SHAIN submitted documents to ODOE for an extension for OUS's BETC projects. SIMONTON did not specifically recall contacting SHAIN about the need for an extension because by that point he was already mentally "checked out" from his employment with OUS and was focused on job hunting. There was no reason for SIMONTON to have written his letter to ODOE for the extensions other than that he wanted to make sure the projects were completed. Working on the BETC projects was not the only thing SIMONTON worked on prior to ending his employment with OUS, but he did not want to do anything to hinder their completion. SIMONTON was aware the changes to the conflict of interest clause in SHAIN's contract were out of the ordinary and at some point SHAIN appeared to be working for free on the OUS projects. SIMONTON was also aware SHAIN had the potential to be paid through the PPA by whichever contractor built the projects. SIMONTON re-reviewed his letter to ODOE and the letter from REDCO and stated that both letters included similar language normally used by SHAIN. Based on certain verbiage and language in the letters, specifically the sections in the REDCO letter describing issues REDCO had during "Ql and Q2" it sounded as if SHAIN wrote the letters. It appeared to match the type of phrasing SHAIN used in his own correspondence and during conversations with SIMONTON. During the time SIMONTON corresponded with SHAIN about the OUS projects it is likely SIMONTON used his personal MSN email address to communicate with SHAIN, in addition to using his State email address.

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Copies of handwritten notes created by SIMONTON and documents titled "Board Docket" are attached as lA items.

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Summary of FBI interviews  
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