ML19331A756
| ML19331A756 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/06/1978 |
| From: | Gossick L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Dingell J HOUSE OF REP., INTERSTATE & FOREIGN COMMERCE |
| Shared Package | |
| ML19331A744 | List: |
| References | |
| NUDOCS 8007210761 | |
| Download: ML19331A756 (6) | |
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1 FEB 6 1978 w._
The Honorable John D. Dingell Chairman, Subcommittee on Energy and Power Committee on Interstate and Foreign Commerce United States House of Representatives Washington, D.C.
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Dear Mr. Chairman:
On February 6,1978, Chairman Hendrie responded to your letter of January l
17, 1978, in which you inquired about recent news stories and press releases relating to the establishment of a special panel to hear charges of " professional misconduct" against attorneys participating in an NRC licensing proceeding. As indicated in Chairman Hendrie's letter, the NRC staff has been requested to provide responses to your inquiries. It is my pleasure to provide those responses on behmif of the NRC staff.
Before dealing with your specific questions I believe it might be helpful ifI set forth a brief background of this special proceeding. In 1976, acting
'on a petition for review of a final Atomic Energy Commission decision authoria-ing the issuance of perne.s to Consumers Power Company for the constructicn
. of two nuclear power facilities at its Midland Plant in Midland, Michigan, the United States Court of Appeals for the District of Columbia Circuit remandei
' the final AEC decision to the Nuclear Regulatory Commission for further adjudicatory proceedings on specific issues. (Aeschliman v. NRC, 547 F. 2d 1
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622 (D.C. Cir.1976), certiorari granted sub nom. Consumers Power Conipany
- v. AeschHmmn 429 U.S.1090 (1977)). Acting on the remand of the court, the NRC in 1976 reopened the hearing before an NRC designated Atomic Safety and Licensing Board.
In the reopened proceeding Myron M. Cherry, an nhais attorney, represented certain intervenors and James R. Tourtellotte, Milton J. Grossman and other NRC attorneys represented the NRC etaff. During the course of the proceeding.
on March 25,1977, the NRC staff filed a motion with the presiding Atomic Safety and Licensing Board for the censure of Mr. Cherry for allegedly.
i unprofessional conduct dunng the proceeding (copy enclosed). On March 16, 1977, the intervenors represented by Mr. Cherry filed a motion with the presiding Atomic Safety and Licensing Board for disciplinary action against Mr. Tourte11otte.
Mr. Grossman and other unn=med members of the NRC staff for alleged miscon-duct (copy enclosed).
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These charges and others made orally and in letters during the course of the remand proceeding were referred by the presiding Atomic Safety and Licensing g
Board, in an Order dated November 4,1977, to a special board in accordance with Section 2.713(c) of the Commission's Rules of Practice. On November 7, 1977, the Chairman of the Atomic Safety and Licensing Board Panel designated the members of this Special Board. On Januarf 9,1978, the Special Board held a prehearing conference.
In your letter you requested that you be advised as to the basis of the allegations against Mr Cherry and the NRC staff attorneys. I believe that the above discussion and the enclosures will provide that information. Additional details are available in the public docket on this special proceeding which is located in the NRC Public Document Room at 1717 H Street, N. W., Washingten, D.C. Copies'of this material will be made available to you or your staff upon request.
This type of proceeding is not unprecedented for e'ither the NRC or the Federal Government. The authority of Federal agencies such as the NRC to control the conduct of attorneys representing clients before those agencies in quasi-judicial proceedings stems from the Administrative Frocedure Act. Section 181 of the Atomic Energy Act of 1954, as amended, makes the provisions of the Administrative Procedure Act applicable to NRC quasi-j'ulicial proceedings con-ducted under the Atomic Energy Act. The most recent juAimi decision relating to the authority of agencies to discipline attorneys under the provisions of the Adminietive Procedure Act is Koden v. U.S. Department of Justice, 564 F. 2d 228 (7th Cir.1977).
The Special Board designated to preside in the special proceeding was appointed under the general authority of Section 191 of the Atomic Energy Act of riS4, as I
amended. Under Section 2.713 of10 CFR Part 2 of the Co==4esion's Rules of Practice, copy enclosed, which deals with attorney appearance and practice before the Commission in adjudicatory proceedings, a presiding Atomic Safety and Licensing Board must prefer charges against an attorney before that attorney may i
be suspended or barred from participation and that attorney must be afforded an opportunity to be heard before another presiding officer. In the instant matter, as indicated above, tl e presiding Atomic Safety and Licensing Board referred the' charges against Mr. Cherry and the NRC staff attorneys to a special board.
.Under the authority of Section 2.721 of the Commissicn's Rules of Practice.
the Chairman of the Atomic Safety and Licensing Board Panel designated I
the members of the Special Board in this matter.
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.The provisions of 10 CFR $ 2.713 have been. applied in the past in connection j
with charges of unprofessional conduct made against a law firm representing 1
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1 a utility company applicant (Matter of Toledo Edison Co. and Cleveland Electric Uluminating Co. (Davis Besse Units 1, 2, 3)). A copy of the NRC Atomic Safety and Licensing Appeal Board decision in that matter is enclosed.
A decision was made to retain private counsel for the charged members of the NRC for the following reasons. It was our judgment that legal counsel from l
outside the Office of the Executive Legal Director was appropriate in view of the existence of a potential conflict between the interests of the NRC attorneys charged with professional misconduct and the interests of the NRC staff members prosecuting the charges against Mr. Cherry. In reaching this decision we consulted with the NRC General Counsel.
Consideration was given to having members of the staff of the NRC Office of the General Counsel serve as counsel for the charged members of the NRC staff. That was determined to be unacceptable because members of the Office of the General Counsel may be called upon by the Commissiooers to assist them with the review of any decision of a Special Board.
Consideration was also given to seeking the assistance of the Department of Justice. However, the Department's regulations do not extend to the utilization of Department attorneys to defend Federal agency personnel against charges of misconduct in Federal agency quasi-judicial admini<trative proceedings, (28 CFR Part 50).
With respect to your inouiry regarding NRC's authority to contract for f
private counsel, that authority is found in 5 U.S.C. 3109, and in the NRC t
Appropriation Act for fiscal year 1978, Pub. L. 95-96 (91 Stat. 797).
In general, however, even with the authority to contract for such outside services, Federal agencies may not procure services on a contractual basis j,
where regular employees of the Federal government are qn=Mied and available to perform the work involved. Thus, where a Federal agency has employees available to perform a particular task, it should not contract for the performance i
of that task. Each Federal agency, however, is responsible for determining in each case whether the particular services could be performed by Federal l
agency employees. As discussed above, it was our judgment that the legal services required in defending the NRC staff members against charges of I
misconduct could not appropriately be performed by NRC employees. In reaching this judgment to employ outside counsel we relied on a recent decision of the Comptroller General of the United States which was issued on July 22, 1977 (B-133381).
The attorney who was selected to defend the'NRC staff members is Mr. T.S.L.
Perlman, a member of the Washington law firm of Kominers, Fort, Schlefer, and f
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4 Boyer. Mr. Perl=an wa. reco== ended because of his outstanding reputation and because of his extensive li:igation experience. Both Mr. Gross =ao 2nd Mr.
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Tour ellotte agreed to his selecnon. Neither Mr. Perlman, nor any other = ember of his law firm, has appeared before the NRC or any of its Boards on any =at:er.
This, of course, was also an i=por: ant element in the selection process.
With respect to your questions as to whether the NRC staff me=bers involved were acting within the scope of their e= ploy =ent and the resultant implications of paying for pri rate counsel to defend the=, I believe the following observa-tions will oe helpful. At the outset,*in our consideration of the e= ploy =ent of outside counsel, the NRC Executive Legal Director determined that the employees involved were clearly acting within the scope of their authority. That, indeed, was a threshold question which had to be answered in the affir=ative before proceeding further. As a result, it was our view that with respect to this aspec:
of the =atter ou: side counsel could be e= ployed. We do not believe that determination should be affected by the outec=e of this proceeding. You should also be aware : hat the Cc==issioners :he=ceives played no part in that decision.
In your letter you raised the question of Mr. Perl=an's primary loyalties. I
. wish to =ake it clear that he has been retained to represen: those NRC staff
=e=bers who have been charged with professional =isconduct. His pri=ary loyalties, indeed his sole loyalties, are to the =e=bers of the NRC staff which he represents.
In your letter you raised several questions regarding press stories dealing with the presentation of the case against the acorneys involved. Since the receipt of your let:er a significant new development has occurred which =ay have an important impac: on how or whether this proceeding continues. On January 30, i
1978, the Chair =an of the Cc==ission sent a letter to the Chai. an of the Special Board suggesting that the Special Board and the parties to the special proceeding pursue the possibility of settle =ent of the matter. That fn&g, Chainoan Hendrie stated that the matter should be heard by a Special Board consisting of attorneys with no prev:cus involve =ent with either the Atomic Energy Cc==is-sion or the NRC. A copy of that letter is enclosed.
In y~our letter you referred to the fact that Co=cission staf is presenting the case against Mr. Cherry but not against the two staff members. You then asked why, if the Commission had evidence relanng to the allegations =ade against the NRC -
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staff members, the Commission does not have a responsibility to affir=atively present such evidence. The Com=ission staff has no evidence which would support these allegations against the staff at:orneys. In any event, if the settle =ent discussions are not sucesssful and the Cc= mission designates a new l
Special Board to preside, that Spec:21 Soard will have to decide whether each l
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party who moved for disciplinary action will be expected to prosecute his own charges before the Board.
c The criteria to be followed by a special board in judging the professional conduct of charged attorneys are those set forth in 10 CFR S 2.713 of the Commis-sion's Rules of Practice and the American Bar Association's Canons of Profes-sional Ethics including its Disciplinary Rules. In essence, the criteria tracks closely that followed in grievance procedures before State bars.
The Special Board which had been designated to preside in this proceeding was appointed under authority of Section 191 of the Atomic Energy Act of 1954, as amended, by the Chairman of the Atomic Safety and Licensing Board Panel in accordance with 10 CFR S 2.721 of the Commission's Rules of Practice. The three members of that Special Board are:
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Chairman Valentine B. Deale, who has had his own law office in Washington, D.C. since 1953. He is admitted to practicein the District of Columbia and in Ohio. He is currently serving a 3 year appointment on a hearing committee under the District of Columbia Court of Appeals Disciplinary Board.
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Member Margaret M. Laurence, who is the senior partner in Laurence, Stokes & Neilan of Arlington, Virginia. Mrs.
Laurence is admitted to practice in the State of Virginia, the State of Mississippi, and the District of Columbia. Mrs.
Laurence is a former president of The Women's Bar Associa-tion of the District of Colu'mbia and former Regional Director of.the National Association of Women Lawyers.
3.
Member Gary L. Milhollin, who is an Associate Professor at the University of Wisconsin Law School at Madison, Wisconsin. Before going to Madison, Mr. Milhollin was Associate Professor at Catholic University of America School of Law. Prior to his teaching career, Mr. Milhollin was a government attorney in Massachusetts, engaged in the private practice of law, and served as law clerk to a U. S. District Judge.
More detail,ed[ resumes of each of these members are enclosed. None of the
. members of the Special Board had any previous personal, professional or working' relationships with any of the attorneys charged in this proceeding.
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IfI can be of any further assistance to you in this matter, please do net hesitate to contact me.
e Sincerely, ggyI:civ,Giidd Lee V. Gessick
' Executive Directci
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Enclosures:
- 1. NRC Staff Motion dtd 3/25/77
- 2. MCherry Motion dtd 5/16/77
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- 3. Rules of Practice Sec. 2.713
- 4. ALAB-332 dtd 6/11/74
- 5. Ltr to VDeale fm JHendrie dtd 1/30/78
- 6. Resume of VDeale
- 7. Resume of MLaurence
- 8. Resume of GMilhollin m
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