ML19354E864
| ML19354E864 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 09/21/1989 |
| From: | Rosenthal A NRC |
| To: | |
| Shared Package | |
| ML19354E856 | List: |
| References | |
| 89-02, 89-2, NUDOCS 9002020126 | |
| Download: ML19354E864 (66) | |
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u OFFICIAL USE ONLY INTERIMREPORTOFkNVESTIGATION (89-02) i Introduction This is the second report that I have submitted in connection with the investigation instituted by the then-Office of' Inspector and Auditor (OIA) in August.1988 to-inquire into a complaint by Douglas S.;Ellison directed'to the conduct of employees of the Office of Investigations F
l (OI) and, most particularly, its Deputy' Director, Roger A.
i Fortuna.
In the first report, issued on May.2, 1989-l l
following my assumption-of' responsibility for.the investigation the prior February 28, I. addressed ~Ellison's.
claim that OI employees had' improperly dealt with certain allegations.of misconduct at~the Niagara Mohawk Power.
Corporation's Nine Mile Point facility-that he had presented to the NRC in 1986.
For the reasons-set forthlin that 4
report, I reached the ultimate conclusion-(at pageJ34) that there was no misconduct or dereliction of duty upon the part of OI personnel, including Fortuna, in-the treatment of those allegations.
It is my understanding that the Commission accepted my recommendation that that. facet of the investigation be terminated on such.a' finding.
plSOP l
.,a 9002020126 900129 PDR. ADOCK 050002203 f.
T PDC
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The May 2 report took note of the fact that Ellison's complaint put before OIA last year had also raised an issue relating to Fortuna's relati$nship with Stephen B. Comley.
On this score, Ellison supplied OIA with, inter alia, a tape of two January 14, 1987 telephone conversations between Fortuna and Comley.
These conversations were initiated by.
Comley_in a hotel room in Washington, D.C..
-They were recorded in the first instance either by him or by Ellison,-
who was in the room (or an adjacent room) and listened to the conversations on an extension telephone.
(As will be further discussed later in this report, each individual claims that the other did the' recording.) Irrespective of where the truth lies on the question of who did the initial taping, it seems clear that Fortuna, who received the calls at his home in suburban Virginia, was not aware that the conversations were-being recorded.
According to Ellison, in the-January 14 telephone conversations Mr. Fortuna had inappropriately disclosed to comley information pertaining to Ellison and, additionally, had discussed with Comley sensitive and confidential NRC matters.
Further,.in a interview with OIA officials conducted on September 12, 1988, Ellison represented that 1 The interval between the two conversations was very brief.
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Comley had told him that he had recorded 40 to 50 telephone conversations bet' feen himsel[ (Comley) and Fortuna; that many of the tapes were in Comley's possession; and that he (Ellison) had seen and heard some of the tapes.
After both listening to the recording-of the January i
14, 1987 telephone conversations and reviewing a transcript I
of that recording, the two Office of the General Counsel 2
(OGC) attorneys detailed to assist in the investigation and i
I interviewed Fortuna on March 122, 1989.
As will be seen in the body of this report, Fortuna was-questioned extensively in the course of the interview respecting statements he had l
made during the telephone conversations.
Being persuaded-by.the Fortuna interview that it was necessary also to examine any existing tapes of other-Fortuna-Comley telephone conversations, I obtained the issuance on March 24 of' a subpoena duccs: tecumi directedl to Comley.
Notwithstanding the Commission's denial of his-motion to quash the subpoena, Comley refused to comply with it or even to confirm or-deny the existence of the tapes being sought. This required the Commission to press for 1
judicial relief and, on June 23, a federal district judge in 2 Karen D. Cyr and Susan S. Chidakel.
Ms. Cyr's-involvement ended on March 23 because of'a previous commitment.
Ms. Chidakel has assisted me throughout the investigation and had a major role in the preparation of both the first report and this report.
I
4 Boston (Comley resides in Massachusetts)Lentered an order enforcing the subpoena. -Comley has disobeyed that order-and, now being in contempt of court, is subject to heavy fines and possible imprisonment.
It had been my desire to withhold any report on the Fortuna/Comley relationship to await the outcome of the co subpoena matter.
For, obviously, any tapes that might:be obtained in response to the subpoena-could have a decided bearing on any conclusion respecting whether. (and, if : so, tot what extent) Fortuna conducted himself improperly in the course of that-relationship.
It becoming increasing apparent, however, that it is likely to be some time 1before the subpoena matter is finally resolved, I.am now compelled to the conclusion (which I understand the Commission shares)'
that a report on the fruits of-the investigation _to date is-warranted.
Needless to say, it is not to be taken asothe last word on the Fortuna/Comley relationship. 'Once again, that must abide the event of either the receipt of the tapes sought by the subpoena or a convincing demonstration that no such tapes exist.-
One final introductory point bears mention.
I informally called upon OGC to-advise me respecting whether I might be foreclosed by considerations of either law or Commission policy from making.use of the content of the tape of the January 14, 1987 telephone conversations.
In this connection, I observed that, while there was some suPFort in g
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the materials in my possecsion for-Ellison's claim that Cot c;y had done the recordind and had subsequently allowed
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Ellison to make the copy later supplied to the NRC (see infra n. 6)',.I could net be certain thht such was the case.
OGC replied that it perceived no legal or policy impedinient to the use of the tspe.
I I have proceeded on that advice in this report and, additienally, have accumed that there likewise is nothingLto.
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precluce my resort in a subsequent report to any tapes that might eventually be produced in response to the Comley subpoena. Nonetheless, I must note that.I am not totally 4
3 comfortahle about passing judgment on the conduct-of a.
s
-Commission official based upon his' statements in' telephone
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conversations that were recorded without his knowledge.(let j
alone acquiescence).
In my view, whether or not in violation of federal or state law, such surreptitious recording is a dirty business indeed. My discomforture is,-
however, substantially reduced by the consideration that it-j i
is extremely important to come to, grips with allegations t
l that cn individual occupying a particularly sensitive I
position within the NRC.has failed-to fulfill obligations t
owed his employer,.as well as breached a public trust.
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6 Statement of Facts During August 1988, Douglas Ellison was interviewed in Florida (where he resided) by, first, CIA investigators and, some days later, CIA officials. The gravamen of his charges against Roger Fortuna (insofar as the subject of this report) is to'be fcund, however, in a September 12, 1966 interview.
That interview was conducted in a hotel in Vienna, Virginit by Sharon R. Connelly, the then OIA Director, and Mark E. Resner, the then CIA Assistant Director ior Investigations.
At the outset of the interview, Resner noted his understanding, based upon the earlier contacts between Ellison and CIA officials, that Ellison was alleging " criminal misconduct" on the part of i
Fortuna "by his discussing matters involving (Ellison) with third parties not employed by the NRC' and, additionally, by his discussing " sensitive and ' confidential' NRC information and strategies concerning several 01 investigations with i
1 unauthorised third parties outside the NRC on January 14, 1987*.3 In this connection, Resner made reference to the f
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3 Transcript of Ellison September 12, 1966, interview at 3. We have closely examined the transcripts of OIA'S i
interview of Ellison on September 12 and of an earlier OIA interview of Ellison on September 2,-in order to ascertain the specific nature of Ellison's assertions of 11npropriety l-regarding Fortuna's relationship with Comley.
In addition i
to his claim that Fortuna improperly discussed with Comley matters involving him, Ellison appears basically to complain I
of the following: (1) Fortuna and Comley discussed and i
E shared sensitive OI investigative material, and.comley l
(Footnote Continued) t m
7 fact that Ellison had supplied CIA with five cassette tape recordings of conversations ietween (1) Ellison and Stephen Comleyt (2) Ellison and Fortuna; and (3) Comley and Fortuna.4 When Connelly inquired as to the original source of those tapes, Ellison responded that he had made each of the recordings other than that'of the January 14, 1987 conversations between Comley and Fortuna. 5 As earlier noted, Ellison maintained that, although he had listened to the conversations on an extension telephone, that tape had been made by Comley and later copied by him. 6 (Footnote Continued) appeared to be controlling Fortuna's actions'at times; (2)
Fortuna and Comley were involved in putting together a
' package" to present before the American people that would demonstrate that the NRC was not properly exercising its regulatory responsibilities; and (3) Fortuna was aware of wrongdoing by the NRC that was not being presented to the NRC.
Still further, Ellison alleged that Fortuna may have provided sensitive information to other third parties, i.e.,
the Christic Institute.
4 Ibid.
5 Ibid.
6 Id. at 3-5.
In a letter dated March 28, 1989, from Comley's~ attorney Ernest C. Hadley to Fortuna's attorney, Julian S. Greenspun, Comley disputed Ellison's assertion that Comley taped these conversations, and maintained that Ellison taped the conversations without Comley's knowledge.
A tape provided by Ellison of a conversation between himself and Comley on January 15, 1987 supports, however, the conclusion that Comley taped the conversation and allowed Ellison to copy the tape.
In that conversation, the following dialogue took place:
COMLEY:
Now you know that thing you've got, pulled out of Washington, same as mine.
(Footnote Continued)
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Although we shall later go into the content of the j
i January 14 Comley/Fortuna conversations in considerable i
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detail, there is one specific claim that Ellison made during the course of the September 12 interview'that warrants l
mention at this juncture.
Ellison maintained that, during the first of these conversations, Fortuna interrupted Comley in the middle of Comley's reading of a press release and said: " Hey, I heard Ellison's up on a sex charge, a criminal
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i arrest," at which point Comley acknowledged that that was so j
j and stated that he had previously informed Fortuna about it.
According to Ellison, as a result of that remark i
Ellison asked Comley to telephone Fortuna again in order to obtain any information that Fortuna might have received from Region I in reference to Ellison's' arrest.
1 (Footnote Continued)
ELLISON:
Yeah.
COMLEY:
Okay.
You've got to get rid of it, all right?
ELLISON:
Yeah.
COMLEY:
Now, I know why you took it and I know why you wanted to copy it and I didn't push you that hard when I was here.
I ELLISON:
Right.
COMLEY:
But again, I've got to -- you know.
I What you could do if that gets in the wrong hands --
l ELLISON:
I'm not giving it to anybody.
Transcript of Ellison Tape No. 2, Side 1, First l
l Conversation, at 41.
7 Transcript of Ellison September 12, 1988 OIA interview at 18.
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9 Contrary to Illison's assertion, the tape recording of the first telephone conversation that was provided to OIA by Ellison does not contain any reference to Ellison's arrest.
But, as taped, the second conversation does contain a discussion between Fortuna and Comley or this subject in terms that suggests that it might have been touched upon earlier.8 Hence, the real possibility exists that, for some obscure reason, Ellison had altered the tape.'
8 At the onset of the second conversation, Comley stated:
"I just got to thinking, all right, what I don't understand is this: Is there -- been any talk in regards to, um, Ellis being with me on tomorrow?
There had to be at least -- you know, why did he tell you about the -- why did it come up about, uh, sexual harassment?"
Fortuna subsequently responded that he probably learned about Ellison's arrest from Chester W. White (OI Field Director in Region I).
Later in the conversation, Comley continued:
"Well, the thing that gets me is that, you know, you remenber when we talked before and I told you about the incident and then you said, well,. hey,-that's par for the course, they try and discredit him anyway, the companies,.
- Hold on m minute.
Par for you know."
Fortuna responded:
the course about not that,.that's a pretty significant issue."
During the exchange that then ensued, Fortuna advised Comley, among other things,'that Ellison had been charged with molestation, that it could amount to
[ contribution tol delinquency of a minor, and "[y)ou don't want to get too strong on a guy that later comes up with this big charge and he's convicted, and it's Steve Comley's guy, and all of a sudden, he's Steve Comley's guy."
Transcript of Ellison Tape No. 4, Side 1, Copy 1, at 149-61.
I According to White, it was common knowledge within the Region not only that Ellison taped conversations, but also that he altered tapes, cutting and splicing them to make them say what he wanted them to say.
White Transcript at 91-92.
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Our suspicion that such had occurred was strengthened by information provided by Donna M. Rowe, an OIA l
investigator.
Rowe had interviewed Ellison in August 1988 l
in Daytona Beach, Florida, near Ellison's home.
During that_
interview, Ellison played excerpts of the tape of the January 14 conversations.
Although Ellison did not permit the interview to be transcribed, Rowe took notes reflecting 4
in part the substance of what she heard on the tape.
Her i
notes disclose that Fortuna raised the matter of Ellison's arrest during the first telephone conversation. 0 10 In addition, Rowe's notes, as well as her recollections, reveal other differences between the tape as she heard it and the tape that we have in our possession.
The tape that was supplied to OIA indicates that, at one point during the first conversation, Fortuna said that
" White's not a, you know, malicious bastard or anything."
Transcript of Ellison Tape No. 4, Side 1, Copy 1 at 127 -
28.
Rowe's recollection, however, was that on the tape to 4
which she listened Fortuna was talking about Ellison, not White.
According to Rowe's notes, Fortuna said [that Ellison is] "not a wife beater or anythings not a malicious bastard."
The tape in our possession further indicates that, during the second conversation, the following exchange took place:
FORTUNA:
--and we got to go down to DOJ aw shit, 4
what? Steve Comley's coming -- aw, okay, fine, right.
COMLEY:
Yeah.
FORTUNA:
In fact, he says, you know that guy owns a nursery --
Transcript of Ellison Tape No.
4, Side 1, Copy'1 at 150.
But Rowe's notes and recollection respecting what she heard indicate that Fortuna was talking _about Ellison, and what he said was that that "(gluy robs the nursery" (referring to i
Ellison's alleged molestation of a 13 year-old babysitter).
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11 In order to pursue this matter, we contacted Donald
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Ritenour, a supervisory Special Agent in the employ of the Federal Bureau of Investigation-(FBI), and inquired whether-the FBI would be able to determine whether thu tape had been i
altered.
We were informed that, in order to do this with i
any degree of accuracy, the FBI.would need to know'in some detail the manner in which the tape was made, including the make and model of the recording device used; the~ type of i
device that was attached to the telephone; whether the tape was new or had been previously used; and whether the person making the recording had turned the machine off and on during the recording.
In addition, considerable time would be required to authenticate each ten to fifteen minutes of playing time of the recording.
l Obviously, we were unable to provide the required information to the FBI.
Moreover, we concluded at the time that, in any event, it would not have been worth an extended delay in our investigation to determine whether the tape had been altered.11 In our view, we had enough objective evidence from which we could assume with confidence that the tape had been altered in some respects and that we should proceed with our investigation on that assumption.
11 We then had no inkling that, because of Comley's conduct, the investigation would remain open for a-long period.
12 A.
As noted in the May 2 partial report, we had l
occasion to interview, apart from Fortuna, a number of OI officials and employees in_ connection with the matters considered in that report.
Those individuals were Ben B.
Hayes, the OI Director; William D. Hutchison, Assistant to the OI Director Chester W. White, OI Field Director, Region It and Richard A. Matakas, OI Investigator, Region I.
Each
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of them was also asked questions designed to elicit information respecting such OI policies and practices as might have a bearing upon the propriety of the Fortuna/Comley relationship, as that relationship appeared i
from other material garnered in the course of the investigation.
With regard to the allegation of misconduct on the part l
of Fortuna in discussing with Comley matters involving Ellison, at bottom the question is whether Fortuna was obliged to keep confidential any information about Ellison that he might have acquired in the course of the fulfillment of his official duties.
For its part, OI's current Investigative Procedures Manual would appear to hinge as a general matter any such obligation upon the existence of a confidentiality agreement, signed'by both an OI investigator authorized to grant such protection and the individual
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requesting confidentiality.12 No such agreement pertaining l
l to Ellison is contained in OI's files; nor is there any other documentation that might compel the conclusion that
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Ellison received a formal grant of confidentiality-from-01.13 Further, Hayes, White, Matakas and Fortuna all stated that, to their knowledge, no formal promise of confidentiality was ever made to Ellison.14 1
There was some exploration with the interviewees respecting whether, even in the absence of a confidentiality s
agreement, an investigator should refrain from disclosing to an outside party information obtained about an alleger.
OI Investigative Procedures Manual (January 1989) at 7 7-2.
Although the cover page states that it replaces an interim manual approved.by the Commission in 1985, insofar as here relevant the 1989 version effected no significant change.
i 13 The allegation form in OI's files on which a description of Ellison's allegations was recorded has a line for " confidentiality".
A "yes" on this line was crossed out, and a handwritten notation appears as follows: "No[.]
Licensee investigation in progress as of 7/15".
This is folowed by the initials "JL".
The apparent explanation-for these notations is found in, among other places, the report of a December 14, 1988 interview of Matakas conducted by OIA.
According to Matakas, Region I initially granted confidentiality to Ellison in connection with his submission in 1986 of his concerns regarding licensee misconduct at Nine Mile Point.
That grant was later rescinded, however, because Ellison had already taken his concerns to the licensee.
The initials "JL" were those of James Linville, a Region I employee.
14 Hayes Transcript at 72;' White Transcript at 60; Matakas Report of Interview at 9; Fortuna Transcript at 73.
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i Both Hayes and. White frown upon such disclosure unless the j
investigation at hand so requires.15 White implied, however, that it might not be inappropriate to disclose information that had already been made public.16 on the I
same note, Fortuna maintained that a pledge of He confidentiality would not extend to such information.17 further insisted that discussing allegers with third parties
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sometimes occurs and is not precluded by any law or policy of which he was aware.18 on the specific matter of Fortuna's discussion with I
Comley of Ellison's arrest (ok other subjects concerning Ellison), White told us that he first learned that I
Ellison had been arrested for sexual molestation through a j
newspaper article and that he forwarded a copy of the article to OI headquarters.18 Fortuna stated that he had told an Assistant United States Attorney in Syracuse, New I
York that Ellison had been in some criminal difficulties i
l 15 Hayes Transcript at 42-43; White Transcript at 46-48.
16 l
White Transcript at 47.
Fortuna Transcript at 32-35.
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. at 35-36.
18 White Transcript at 92-93.
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because "[t] hat's very relevant".20 He also acknowledged that he could have discussed'the arrent:with other persons outside of the NRC.
Fortuna stated further that he "wouldn't be the least bit surprised" if he had discussed Ellison's legal problems with Comley.
According to~
Fortuna, however, Comley was already aware of those problems.23 B.
Turning to Ellison's allegation of misconduct on the part of Fortuna in discussing with third parties l
sensitive and " confidential" NRC information and strategies f
concerning OI investigations, we explored the matter of OI's procedures and practices governing the exchange of information both internally and with outsiders.such as informants. In this connection, the OI interviewees were questioned regarding the practice of maintaining contacts' l
with third parties who could be potential sources of information, i.e.,
" cultivating" such sources.
The interviewees were asked whether they provided such sources with information regarding OI investigations.
20 Fortuna Transcript at 72.
22 l
- Ibid, i
22 Id. at 88.
23 Ibid.
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16 In response, we were advised that investigators l
normally maintain contacts with persons who are not providing information about a specific investigation but who could potentially provide information.
Hayes told us that he expected his staff to cultivate sources of information.24 Hutchison stated that he thought it " incumbent" on everyone involved in the investigative process to cultivate such sources.
Fortuna acknowledged that he had maintained f
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contacts with persons who might not be providing information about a specific investigation.26 Fortuna indicated further i
that he was unaware of the existence of either specific guidance with respect to the manner in which those sources i
should be cultivated or written procedures regarding keeping the OI Director informed of information that might be developed as a result of such contact.27 In this regard, i
Hutchison remarked that he personally would be " highly surprised" if, on a regular basis, an investigator provided other persons in OI with the names of his sources.28 In his l
view, the relationship of an investigator with a source is a L
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24 Hayes Transcript at 44, 25 Hutchison Transcript at 43.
26 Fortuna Transcript at 18-19.
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28 Hutchison Transcript at 44.
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" delicate relationship," and if a source found out that another investigator knew about it, the relationship could be shattered.29 Hutchison did indicate, however, that, if the actual information provided by a source was important, an investigator would be expected eventually to brief his supervisor regarding it.30 Matakas stated that, if he received information from a source, he would notify his supervisor if he felt that the information was pertinent or important.31 Matakas also noted that he would expect to be briefed in advance if someone in OI had a source who Matakas was about to interview regarding a case in which Matakas was involved.32 All of the OI interviewees stressed that the relationship between an investigator and his or her source is a matter of "give and take," and that, in order to encourage a source to provide information, an investigator might in turn supply that individual with information.33 Both Hayes and Hutchison acknowledged that, in certain 29 at 44-45.
30 M. at 52-53.
31 Matakas Report of Interview at 3.
32 Ibid.
33 See de.. Hayes Transcript at 44-45; Hutchison Transcript at 40-43: White Transcript at 34-35 and 51-52; Fortuna Transcript at 24.
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instances, it might be appropriate for an investigator to provide non-public information possessed by OI to a source (including, according to Hutchison, information about an ongoing investigation).34 Hutchison indicated, however, that to justify giving a source information that would not i
normally be provided to an outsider, an investigator should be reasonably satisfied that the source possessed something that was of value.35 i
To Hutchison's knowledge, it was not "in writing" as to what information could be given a source or informant, but a matter of common sense on the part of the investigator.36 As he put it, "whatever information you are getting from the i
individual has to be weighed against what he wants from f
you."37 Hutchison noted that OI does not provide training to investigators regarding the handling of sources, nor are there any policies or guidance on the bounds within which l
investigators must operate.38 Basically, this is left up to f
34 Hayes Transcript at 45-46; Hutchison Transcript at 49.
35 Hutchison Transcript at 42-43.
6 I_d!. at 47.
- 11. at 48.
M. at 55.
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i 19 38 the individusi investigator's judgment OI hires only experienced investigators, however, and they can be counted 40 on to have previously dealt with sources White agreed that there is no-specific guidance about cultivating 41 sources.
But he believes there to be a " general understanding" with respect to disclosure of information on ongoing cases and, if any of his investigators were contacted by a source seeking information on a case, he would automatically be notified.42 Apart from the OI Investigative Procedures Manual, Matakas did not recall being given any specific training or written information regarding the handling of sources.
When questioned regarding whether an investigator would be expected to give information to a general source, he indicated that the individual normally would not be provided with non-public information unless he or she could be 3' If. at 56, 40 Id. at 55-56.
Hutchison, Hayes and White all indicateT that the cultivation of sources, along with the exchange of information between such sources and investigators, is a standard practice by agents of any investigatory body.
Hutchisen Transcript at 55-56; Hayes Transcript at 63; White Transcript at 34-35 and 37.
- White, however, maintained that he was not aware of this practice being followed in his office.
White Transcript at 37.
41 White Transcript at 37-38.
42 Ibid.
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4 expected to provide in return substantive information concerning an investigation.43 i
Each of the OI interviewees was interrogated regarding i
how these practices might be squared with the guidance provided in Policy 18 and Section 2.4.1. of OI's Investigative Procedures Manual.
Policy 18 statest i
With the exception of significant safety issues, information regarding an ongoing 01 investigation will not be disclosed by any NRC employee outside i
NRCwithoutthespecg{icapprovaloftheDirector, 01, or his designee.
t I
Section 2.4.1 provides in parts' OI investigators must be free from impairments to objectivity in all matters relating to t
investigative work.
Investigators have the responsibility for maintaining independence and objectivity so that judgments used in obtaining evidenceaggconductinginterviewswillbe impartial With regard to the objectivity standard, White stated that dealing with informants does not perforce mean t
i compromising objectivity, but that.it is necessary to approach different persons differently if seeking information.46 As he sees it, an' investigator sometimes 43 Matakas Report of Interview at 3.
44 OI Investigative Procedures Manual at 3-3.
45 Id. at 2-2.
46 White Transcript at 50.
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21 has to " con" individuals to 9,et desired information, a process influenced by the importance of the cultivation of a j
particular source of information.47 Hayes stated that he was unaware of any procedures that precluded an investigator from becoming personally acquainted with third parties.48 In fact, there is a relationship that develops between a source of information and the investigator.48 According to Hayes, it is the investigator's responsibility to maintain a high level of objectivity in dealing with a source.50 In discussing Policy 18, Hayes opined that ongoing investigative material should not be disclosed to a " citizen out of the blue' who seeks such information.51 Nonetheless, as indicated above, Hayes believes that it would be permissible for an investigator, in the exercise of his or her discretion and for the purpose of encouraging an j
exchange of information, to provide information'to a source i
that normally would not be provided to a member.of the public.52 l
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I 47 M. at 51.
48 Hayes Transcript at 32.
48 Ibid.
50 Ibid.
51 Id. at 39.
52 Id,. at 44-45.
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t Hutchison opined that the'" spirit" of Policy 18 is not aimed at dealing with informants.53 He reads the Policy as
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defining how one should deal with the media, or " people outside".54 Hutchison said that, if Policy 18 were applied i
l "to the letter" to include informants, an investigator would no longer be able to question individuals because, in order to obtain worthwhile responses, one must provide the 5
interviewee with some information about an investigation.
For his part, Fortuna interprets Policy 18 as meaning that t
an investigator is not to share information regarding ongoing investigations with persons outside the NRC who do not "have a relationship to the matter".56 In Fortuna's view, Policy 18 would allow the disclosure of information about an investigation if the purpose for doing so was to obtain from an individual information that might be relevant to a different investigation.57 Matakas understands Policy 18 to mean just what it says.58 Thus, anything revealed during the course of an investigation must be essential to i
Hutchison Transcript at 46.
53 54 Id. at 46-47 55 I, d. at 47.
I Fortuna Transcript at 27-28.
1 57 Id at 29.
58 Matakas Report of Interview at 2.
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23 the conduct of that investigation.59 With regard to the objectivity standard, it is his belief that an investigator must be professional and avoid developingLa close personal relationship with a third party (instead, such a party must be held at " arm's length").60 C.
OIA had transcripts made of the content of virtually all of the tapes that it received from Ellison. In addition to exploring the matters discussed above with the OI interviewees, we examined those transcripts.
That examination disclosed some disturbing elements in several of the telephone conversations.61 The tape that raises the 59 Ibid.
60 Ibid.
61 For example, the following is part of an exchange between Comley and Ellison during a phone conversation which occurred in the summer of 1987:
COMLEY:
Remember when we talked about the game plan?
ELLISON:
Yes.
COMLEY:
You are giving it all to them.
ELLISON:
The game plan?
COMLEY:
You don't understand, Doug.
ELLISON:
The gane plan is yet --
COMLEY:
No, you don't understand.
You are free-wheeling the thing, and you are going to screw it up for yourself.
e e e e e If you are not going to do what I tell you and at-least discuss it with me, I don't want to talk to you, and that is the way it going to be.
ELLISON:
The --
(Footnote Continued)
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most serious question in our minds as to the propriety of (Footnote Continued) 1 COMLEY:
I have been on this thing a year and a half, l
Doug.--
ELLISON:
Uh-huh.
COMLEY:
-- and I know you have been through a lot but I have been through a hell of a lot, too, and I don't need you free-wheeling things like that, and I don't appreciate it, and I am not going to have it.
ELLISON:
I only called Roger to ask him --
COMLEY:
You and I agreed that you wouldn't do that.
i Ellison Tape No. 1 at 78-79.
In addition, there are some troublesome pieces of dialogue in two telephone conversations between Ellison and Fortuna which occurred in the spring and summer of 1987.
In i
one conversation, the following exchange took places FORTUNA: You keep doing the best you can do to try to keep it together -- chip, chip, chip a piece at a time.
This is the most dramatic I've ever seen it in all the time I've worked in the agency.
ELLISON: Really?
FORTUNA: This is Republican -- big, big, big, big, big business operation, and that's the way they are going to do itt.they got the votes.
ELLISON: They have the General Electric's and the Westinghouse's and it is more than just the I
NRC, in my opinion.
FORTUNA: NRC is chump change.
Sure, they can buy and sell Commissioners.
Can you-prove it?
Can I prove it?
No.
Ellison Tape No. 1, First Conversation at 7-8.
Portions of the dialogue in another conversation between Ellison and Fortuna are as follows:
ELLISON:
And then the other thing was CBS Evening News --
FORTUNA:
Uh-huh?
ELLISON:
It just happens that today's the day they're up interviewing the utility in Syracuse.
t FORTUNA:
[ Whistles].
l ELLISON:
They're putting the two spots on the evening i
news next week about falsified. federal records and the coverup between the NRC and (Footnote Continued)
M
25 Fortuna's conduct, however, is that of the two telephone conversations between Fortuna and Comley on January 14, 1987.
As indicated earlier, we concluded that Ellison may have altered the tape of these conversations (as well as other tapes which he had provided to 0I).62 Keeping this possibility In mind, we nevertheless questioned Fortuna regarding several seemingly troublesome portions of that tape.
Prior to embarking upon that course, we gave Fortuna and his counsel (over a two-hour luncheon recess)63 the opportunity to review the transcript made from the tape.
In 4
so doing, I observed that, although I was prepared to play the tape for them, my colleagues and I were satisfied from j
listening to the tape ourselves that the transcript was an accurate representation of its content.64 Fortuna's counsel then inquired as to whether the tape is accurate and (Footnote Continued) the utility.
And Marty Bergman, I guess they're going to put a couple spots on the evening news next week.
FORTUNA:
[ Whistles).
Wow, neat.-
Well, okay, mum's the word on that one.-
It happens, it happens.
Ellison Tape No. 3, side 1, Third Conversation, at 107-08.
62 See supra pp. 8-11.
63 During the morning interview session, we interrogated Fortuna on other matters.
64 Fortuna Transcript at 99.'
26 i
authentic.65 My response was that "this is what Mr. Fortuna i
i can tell us.
If Mr. Fortuna believes that this tape has been altered in some fashion or that it's an entire work of fiction, he can tell us that. 66 At no point either during the interview or subsequent thereto did Fortuna affirmatively claim that there had been
- or might have been alterations in the tape that could have had some bearing upon the authenticity of the dialogue between Fortuna and Comley as that dialogue was disclosed in the tape as delivered to OIA by Ellison.
The most that i
Fortuna could say after reviewing the transcript was (in response to my direct questions) that he could not tell whether segments of his telephone conversations with Comley had been deleted.67 We now move on to the substance of the conversations.
Before setting out the significant exchanges between Fortuna and Comley, the conversations must be put in context.
They i
occurred on the eve of a meeting that Comley had arranged with a Department of Justice lawyer named Earl Shamwell to discuss certain of comley's concerns associated with the L
Seabrook facility. (one of those concerns apparently related
[
l l-i l
l 65 Ibid.
66 Ibid.
67 Id. at 101-02.
l
,,m, 4
-,-w.
.- -- -,r-
-,m--
~ < -
,w
=
t 27 e
to the disposition of the criminal proceeding involving James Padovano, a former quality control inspector at I
Seabrook who had been charged with record falsification.)
Shamwell had asked that the NRC be represented at the l
meeting and Hutchison and Matakas were designated as those representatives.
l Against this background, we look at the portions of the dialogue to which we directed Fortuna's attention at his interview and the explanation he provided:
DIALOGUE (at 123)68 (regarding the meeting to'be held the following day at the Department of Justice):
COMLEY:
All right, do you'know who's coming?
FORTUNA:
Uh, yeah.
COMLEY:
From OI?
FORTUNA:
Yeah, be Matakas r,nd Hutchinson (sic).
COMLEY:
Matakas, huh?
68 The number appearing in connection with each dialogue segment reflects the page (s) oof the transcript of the tape (Ellison Tape No.
4, Side 1, Copy 1) at'which the dialogue may be found.
In this connection, we note that the transcript contains handwritten changes.
The transcript was received by us from OIA with these changes,-and we do not know who made them.
(The copy of the transcript that Fortuna reviewed during our interview contained the changes.)
~
l f
28 i
FORTUNA:
Yeah.
That's all right.
You can ask him to step out.
That's why I asked if they'd send another guy.
FORTUNA'S EXPLANATION:
Fortuna stated that he had no problem regarding
{
the propriety of giving such advice to Comley.
He recalled that Matakas had handled the case involving Padovano, and l
that Comley felt that the matter had not been pursued as far as it could have been.
In Fortuna's opinion, if Comley had a problem with Matakas, it would have been proper for Comley to discuss this with Justice, and if Comley did not trust l
Matakas, it would have been appropriate for him to tell Shamwell that he wanted Matakas out of the room.69 1
DIALOGUE (at 123):
COMLEY:
Who's the other guy with him?
l FORTUNA:
Hutchison, the headquarters guy.
A guy that works for me.
COMLEY:
Is he any good?
FORTUNA:
Yes.
i COMLEY:
He's true, then?
l I
FORTUNA" Yeah, oh yeah, i
1 69 Fortuna Transcript at 103-09.
L l
~
29
)
l FORTUNA'S EXPLANATION:
i l
Fortuna stated that he took Comley's question to
)
seek his opinion ac to whether Hutchison was an " honest guy", ar.c had responded in the aitirmative.
He-indicated he did not make the same comment about Matskas because he was convinced that Comley had a deep concern about Matakas.
Fortuna speculated that, had he cefended Matakas, Comley might have hung up the phone.
Fortuna stated that, while he did not have any personal reservations about Matakas, there was always the possibility that an investigator that worked with him might have made a mistake.70 DIALOGUE (at 124-25):
COMLEY:
Well, look, the reason being is I got to be at Lincoln Park for the plane.
FORTUNA:
Oh, all right.
COMLEY:
Because I got UPI, AP, and they'll-love that i
shit.
l FORTUNA:
Well, I won't say anything.
-I'll gutt tell i
my guys to be there.
I purposely stayed i
away, too.
l 0
Id. at 109-12.
4..
..--.++ -
.ns-
-4
---a
.__4-2 4-l 1
1 j
30
)
FORTUNA'S EXPLANATION:
According to Fortuna,'his statement "I won't say anyth12 g" referred to the f act that he would not tell anyone about Comley's plans to fly an airplane with an i
i
[ anti-nuclear power) banner.
He stated that he was telling Comley that OI personnel were going to be at the meeting with Justice.
Portuna had no explanation for his statement that he was purposely staying away from the. meeting, except that there was no need for him to go to Justice inasmuch as Hutchison and Matakas could adequately represent the NRC.
i DIALOGbE (at 129):
FORTUNA:
It worked out that fortunately I was on leave the day they made the arrangements to send somebody down to Justice.
FORTUNA'S EXPLANATION:
Fortuna explained that he meant that it was fortunate that he was then on leave so it would not look like he was trying to interject himself_into something; i.e.,
so it would not appear as if he had purposely fixed it so that Matakas could attend the meeting ira order to " spy" on it.72 i
Id. at 112-14.
l Id. at 114-20.
P 31 c
DIALOGUE (at 129):
FORTUNA: I haven't told anybody this yet, so you know, don't ruin me.
(Laughter).
FORTUNA'S EXPLANATION:
Fortuna was not certain as to what he had meant by that statement.
He surmised, however, that he was referring I
to the fact that he had not told anybody that Ellison worked with Comley and that, as there was laughter, he was just
" kidding around".73 l
DIALOCUE (at 130):
FORTUNA:
Be a real high type with him [Shamwell).
Look, if you read the report, I bet you get the impression there's something that you're slowly building, but you're not calling him ar. asshole --
l l
FORTUNA'S EXPLANATION:
l l
Fortuna stated that he was advising Comley that, when he did business with people at Justice, he should treat them in a " gentlemanly nanner", and that, if Comley felt that the Padovano case was not handled properly, he should L
be thorough, careful, and logical. ~Fortuna added that he was briefing Comley in advance on how to behave at Justice 73 Id. at 120-24.
1 i
1 32 l
because he "seemed like a nice guy" and had a deep concern j
i about the Padovano case, adding that the NRC could have missed something.
According to Fortuna, the statement 'I bet you get the impression there is something you are slowly building" meant that, if he-was.trying to convince Shamwell that there was a problem, Comley should go over the investigative file on Padavano throughly with Shamwell and talk to him about it.
In Fortuna's opinion, there was nothing wrong with the Deputy Director of OI assisting I
l Comley in terms of tactics in presenting his complaint to Justice and coaching him in how to behave.
Fortuna also
(
opined that it was appropriate for him to advise Comley 74 later in the conversation as to whether to bring his attorney to the meeting.
l i
DIALOGUE (at 133):
COMLEY:
Okay. Hadley [Comley's attorney) with me.
Look, be absolutely with Woplav Case.
Don't l
mention it to anybody.
FORTUNA:
I have not said a fucking word, man.
COMLEY:
Okay.
Don't -- don't even have it in your l
74 Transcript of Ellison Tape No. 4, Side 1, Copy 1, at' 131.
75 Fortuna Transcript at 124-38.
I k.
. - ~.
4,..
m.
33 possession.
FORTUNA:
All right, then I'll get it the hell out of my office, tomorrow.
COMLEY:
Okay.
FORTUNA:
It's not in the office files, you know what I mean, it's in my room.
COMLEY:
Yeah.
FORTUNA:
I'll take it out of there tomorrow.
COMLEY:
Yeah.
Okay.
FORTUNA'S EXPLANATION:
Fortuna stated that he did not know what the "Woplav case" was, and did not think there was such a case.76 Comley had sent him newspaper clippings and other insignificant material in the past and Fortuna surmised that Comley was referring to that material.
Fortuna emphasized that, in any event, while important to comley, the "Woplay" case (whatever it might have been) did not rise to the level l
of significance of an allegation (requiring Fortuna to pass on the information to others within'NRC).
Fortuna speculated that he was trying to keep Comley from worrying about anything that he had sent Fortuna because Fortuna wanted to keep Comley calm and to "make sure if he's got-76 None of the other witnesses we interviewed had ever heard of the "Woplay" case.
t 34 something, we're going to get it."
Fortuna explained that l
he was trying to build up Comley's confidence in him so-that, if Comley ever came up'with "something big," he would l
know that thereLwas someone' in the NRC that would be " honest with him".77 I
DIALOGUE (at-136):
COMLEY:
Okay.
And I--let's see.
So you're going-to 5e hearing a lot'about me, all right?
(Fortuna laughing in background)
COMLEY-I'm sure.
And would you just try to kind of
~
say to your good guys lthat he's a--
you know, he's on the level, he's just a Joe t
Citizen.
FORTUNA:
He's a good guy.
COMLEY:
All right?
FORTUNA:
Joe 6-Pack, trying tofdo the right thing.
FORTUNA'S EXPLANATION:
Fortuna' stated that this meant that Comley wanted Fortuna-to tell Fortuna's people that Comley was a " good guy".
Fortuna was satisfied that this indeed was the case.
As he put it to us, "I still think he's a Joe six-pack.
I think he's a very nice person.. I think-he's incredibly 1
7 Id. at 138-43.
l l
h
^ -
- en
[
E 35 sincere.
-I think he believes a lot of this stuff.
And cometimes, someplace, somewhere, now I think with all thic' notoriety and stuff, Mr. Comley may have had people confide in him that wouldn't be willing to come directly'to the NRC.
I mean that szncerely."78 DIALOGUE (at 136-37):
FORTUNA:
I was on the phone with Chet, totally-different. issue.
COMLEY:
On the phone with who?
i FORTUNA:
Chester White, Region I.
COMLEY:
Oh, yeah.
FORTUNA:
And he selected ainew guy to, you know, work g
down.there and all that crap, so I was.
calling-him.up and that shit, he says, you know, then'I say who's doing what', you know, the standard check iniwith me for theEday.
COMLEY:
Yeah.
FORTUNA:
Well, you know, Matakas-is going down to D'.C.
l tomorrow to the Justice Department thing, oh, I
yeah, that's right, you-know.- -And'then Rich
-- let's see, why the hell did I ask him'to bring Rich 11n.
I don't-know, Rich an'd I are talking about another case.
8 Id. at 143-44.
.l i
1
. 7
- 1 36 FORTUNA'S EXPLANATION:
Fortuna indicated'that he was briefing Comley on the situation so that comley would make the best possible presentation.he could at' Justice and would not feel that all of these people were "in cahoots in trying to squelch him."79 i
DIALOGUE (at 138):
FORTUNA:
And Matakas is saying, "Mr. Hutchinson [ sic),
you know, do you really vant me to go down to Justice Department," because he says, you know, in case they think I'm a bad ass, they 1
may think I'm spying on them and trying to get in there and-defend myself, and;he'says if you feel, you feel I'm trying to say 3
something, honest to God, I'm~not a bad guy,
~
but if you think so, he said, I won't go.
- l l
FORTUNA'S EXPLANATION:.
Fortuna stated-that he informed Comley about this-internal conversation betueen.two OI employees in order;to.
build up a rapport and' relationship and to allay any concerns Comley had, so that some day Comley might bring l
Id. at 145-46.
i V
4
"'*n m-u-----x
_-,-------_--,_--._-x.--a-------a--
.. ~
37 l
important information to OI.
By' letting Comley know what had been discussed and telling him what his subordinates had said, Fortuna felt that he was demonstrating that OI was trying to do the'right and fair thing, that nobody was "trying to pull the wool" over comley's eyes, and that Comley could trust OI,80
'l DIALOGUE (at 142):
FORTUNA:
Mum, mum's.the word, you know.what I'm'trying to say?
COMLEY:-
Yeah. Now --
FORTUNA:
Chester thinks I shouldn't know about anything.
COMLEY:
Now Hadley - -
l FORTUNA:
That's-why I-get scared because,.youLknow, if they ever find out', they'll say you.should have been. telling us, your firot' loyalty's-to this office, na, na,- na, na,- na, no, na,
na, na, na, na, na, na, na.-
FORTUNA'S EXPLANATIONt i
By "they'll say you should have been telling;us,"
Fortuna meant that Ernest Hadley, Comley's attorney, as well as Billy Garde and other individuals associated with the 80 Id. at 147-48.
l l
,i-38-Government Accountability Project (GAP) would say that Comley should have been supplying them with information, and-that Comley's first loyalty was to GAP.
Fortuna did'not think that "you" in that statement referred to himself.
Nor did'Fortuna believe.that there was anything in his' dealings with Comley over the' years that either would give him concerns respecting what people-would say if they knew what he had done or would raise a question as to his loyalty to OI.
According to Fortuna, he said "that's why I get scared".
because he was concerned about Comley, cared about Comley, and thought that Comley should " play straight up with the
~
people he's-working with."
Fortuna could not explain his.
statement "Chester thinks I shouldn't know about anything."81 c
l DIALOGUE (at 143):
COMLEY:
That's why I told you, you know, go i
through -- we will --'I will talk to you-l through my attorney, through Billie.
j FORTUNA:
Yeah, that's terrific.
COMLEY:
I told you that's the way I think it ought to be done.
You agree'with it?
81 Id. at 155-59; 161-64.
R w
39 FORTUNA:
Yeah, yeah, yeah.
~l COMLEY:
You didn't feel comfortable.the other l
way, so we'll do it that way.
FORTUNA:
Ah, it'll take a while, but I-mean
[ Inaudible)
FORTUllA'S EXPLANATION:
Although not clear as to the meaning of-this passage, Fortuna surmised:that he was saying that-Comley should go to someone who.could help him get organized and then come back if he was having trouble articulating h'is l
82 concerns.
l DIALOGUE (at 144):
FORTUNA:
I'm a chnmp, I don't know iflit's smart _or not, I'm just a coward.
4 COMLEY:
Ah, yeah, um, look -- and um -- well, you l
know, this is what I suspect -- you don't have to answer me --
1 FORTUNA:
Yeah.
COMLEY:
-- one way or another --
FORTUNA:
Okay.
COMLEY:
-- I suspect --
Id. at 159-60.
1
40 FORTUNA:
Yeah.
COMLEY:
-- I don't suspect, I think --
FORTUNA:
Yeah.
COMLEY:
-- that you've got a lot of stuff, but you're waiting.
FORTUNA:
Who?
COMLEY:
You.
FORTUNA:
Yeah, well, some.
COMLEY:
Okay.
1 FORTUNA:
I just -- I don't want to be' front city.
i FORTUNA'S EXPLANATION:
Fortuna stated that he thought that Comley j
believed that Fortuna and other person in NRC were aware of some " horrible things that have been going on in the agency i
for a period of time," Land at some point would step forward and "tell the world what really goes on at the NkC."-
Fortuna saw no reason to correct this perception if it meant that Comley would keep calling and Fortuna would get some-valuable information from him.
Fortuna did not wish'to tell 1
Comley that he was "off base" because it'might have " shut him up".63 O
Id. at 164-74.
1
'e i
41 DIALOGUE (at 145) :
COMLEY:
And uh, so if's on, and'I will keep you updated, and I'll sena you someEstuff, I
anc uh now what I'd'likesto do is call-you ---
FORTUNA:
Yeah.
COMLEY:
-- tomorrow night - -
FORTUNA:
That's no problem.
My wife's on travel.
COMLEY:
-- and. find'out what their reaction was ---
FORTUNA:
Ah, got ya, got ya,:got ya.
COMLEY:
Okay?
FORTUNA:
They.get back.
Yeah, they'll be back.
FORTUNA'S EXPLANATION:
Fortuna stated that this. appeared to mean.that, if the OI attendees gave him some impressions of the Justice meeting, Fortuna would be. happy to share these" impressions with Conley. -He noted, however, that if there were something very critical, such as'a decision by Justice to b
reopen a case, he would not have shared that with Comley.
The. type of information-he would'have. passed on would have included whether Hutchison and Matakas were' receptive to i
Comley.
In his view, Matakas and Hutchison would understand that, were he to discuss their. reaction with Comley,Ehe
[
would be doing so because he thought'it was the right thing to do, and not because he was trying to betray their I
confidences.
Fortuna emphasized that he would not have done
<m
- ~
~
e-
42 anything that, in his judgment, would have jeopardized a-case before Justice or any. matter before 01.84 DIALOGUE (at 149-50):
COMLEY:
Steven [ sic) again.. I just got.to thinking, all right, what I don't understand is_this:
Is there -- been any talk in.regards to, um, Ellis being with me on tomorrow?
There had to be at least -- you:know, why did:
he tell you about-the -- why did it_come-up about, uh, sexual harassment?
FORTUNA:
Oh, no, you got to understand that I've l
been telling Chester White for some time-that he's got to -- in that relationship to you, he doesn't know your relationship on that.-
COMLEY:
Oh he doesn't?
So there was no --
FORTUNA:
No, no, no,-no, no.
I said are_you --
we go through ourfcases,-then it's, so I say, what's new?
FORTUNA'S EXPLANATION:
According to Fortuna, this conversation might have I
had something to do with whether White knew that Comley was
' j 84 Id. at 175-78.
1 l
P 43 i
e working with Ellison.-.Fortuna stated that Comley also appeared to be asking him whether anyone~else-was aware that Ellison had a sexual harassment charge against him.
Fortuna j
stated that, if his response were "no",
then that was hisi knowledge regarding whether White knew about Comley's relationship with Ellison.
D.
As the January 14th' conversations between Fortuna.
p and Comley significantly involved the meeting at. Justice the l
l following day at'which the James Padovano case was l
discussed, we questioned-the interviewees aboutzboth the t
meeting and the case.
According to Hutchison,cShamwell requested OI to provide investigative technical assistance-4 at the meeting.
He stated that he recalled'that he/first learned about this request from.Fortuna.-
Hutchison's i
l impression was that Comley had-information that'might cause OI to want to revisit old. cases-pertaining-to the-Seabrook t
facility and also might have ~ new 'information involving i
Seabrook that OI.would need'to examine.86-i Hutchison stated that he might have requested that he be assigned to attend the meeting, a request that would have i
been prompted by the fact that it would give him a chance to J
l e
^
85 Id. 178-80.
2 86 Hutchison Transcript at.20-21.
r
}
44 "do more liaison with the DOJ. "
He noted that it was determined that someone shoul,d attend from the' Region I Field Office.- According to Hutchison, following discussions among himself, Fortuna and White, in which it was observed-that Matakas was available and had'some-knowledge of Seabrook matters,' White-decided to send Matakas.87-White stated that a request came to him from Headquarters to provide an investigator to assist in the-
. j meeting and that he sent'Matakas~because of his availability
- )
at the time.88 other than telling Matakas to assist at the meeting, White did not-give Matakas.any" instructions because.
White thought of this as an event that was organized and-1 coordinated by Headquarters.99 Matakas stated that he.was told that Justice wanted an.OI representative at the
}
meeting.90 He was further instructed to document any issues that arose.91 Matakas added that he h'ad no discussions with Fortuna' prior to the meeting.92 87 Id. at 23-24.
88 White Transcript at 97.
89 Id. at 102-03.
90 Matakas-Report of Interview at 10.
91 Ibid.
92 Ibid.
L m
s-45 Hutchison informed us that Fortuna instructed him to make certain that Comley did ~not have any information that would cause OI to' reopen any OI case, and.to ascertain whether Comley had any information about the Seabrook facility that would cause OI~to initiate a new investigation.93 Hutchison noted, however, that he-did not know prior to the meeting specifically:what was to be discussed.94 He did.not recollect any discussion with Fortuna in advance of the-meeting respecting any contact I
that Fortuna might have had with Comley regarding.the meeting.95 Fortuna did not recall whether he had~ briefed i
i Hutchison ore Matakas about what he; knew was going to happen at this meeting.96 - He stated that he did.not "necessarily"-
I have an obligation to brief them because if his'" people went 1
down cold,-then they can never be accused of cooking up answers and things like that.
And since I had such i
confidence in good investigators experienced and what have you, I figured they could handle.it.*I
. l l
93 Hutchison Transcript at 27-28.
94'Id. at 27.
95 Id. at 34-35.
96 Fortuna Transcript at 129-32.
9 Id. at 131-32.
46 Hutchison and Matakas related that, during the~mseting at Justice, the Padovano caso was discussed.'
On the NRC level that case had been handled by Matakas, and hire investigation had led to a criminal-prosecution of. Padovano.
According to Matakas, Conley was concerned that~Padovano had-been allowed to plead guilty, and.was upset that the NRC had let the Seabrook utility re-examine certain. work that related to Padovano's inspection activities."
Matakas believed that Comley had: raised at the meeting new information about a certain weld, and Matakas passed that information on to-the Region I staff. 00 Hutchison stated -
that Comley had not provided any specific first-hand-information, but had indicated thht he. knew sources who could.101 According to Hutchison, although;Comley was requested to go back to his sources and_get the information 02 in detail, Comley never acted on that request.
- Moreover, neither Hutchison nor Matakas ever heard from him again.
98 Hutchison Transcript at 30-31 t Matakas Report of Interview at 10.
" Matakas Report of Interview at 10.
100 Ibid.
101 Hutchison Transcript at 28-29.
102
. at 32-33.
103
. at 33-34.
47 Hutchison stated that he relayed to Fortuna the substance of the meeting.104 Fortuna's re' action, as Hutchison understood-i it, was that he was more assured that there was no information necessitating 01 action but that he had some misgivings that comley had-sources that he_was1not revealing.105 Matakas stated thnt, following the meeting, I
he briefed White, but did not-discuss the meeting with 06 persons at Headquarters.
Matakas prepared-a Reportfof.
Interview, and forwarded copies to Comley and Shamwell.107 E.
Toward the conclusion of our interview with I.
Fortuna, we asked him directly whether he had ever.obtained l
any crucial information from Comley that he-had withheld
' l from his supervisors; whe'ther he had provided Comley on any 1
occasion other than during the January-14: telephone conversation with any information about an OI investigation,
)
or supplied Comley with any type of documents; and whether he had provided anyone outside of the NRC other than Comley with any non-public information or non-public-documents.
1 Fortuna responded that he had never withheld any:information j
i
~
i 1
104 Id. at 31-32.
05 Id. at 32, 106 Matakas Report of Interview-at 10.
107 Id. at 10-11.
1
.'i 48 from his supervisors that he had been given by Comley that Fortuna deemed to be important -- indeed,,it appears from his testimony that he has never received any crucial information from Comley. 08 He did not think that he had' ever provided Comley with any non-public'information or-documents regarding any sensitive NRC matter,-ongoing investigation, or other matter that would'not; generally be available to the public.109 Fortuna indicated, however,
-that he had provided such information to potential informants outside of the NRC because "sometimes you give a little to get a little."110 He emphas'ized, however, that-he would not give out information that in his. professional judgment would jeopardize a case.III 106 Fortuna Transcript at 174-75.
109 Id. at 189-90.
Fortuna also denied providing information to the Christic Institute.
M. at 193.
110
. at 188-90.
111 M. at 190-91.
y l
49 Analysis The basic question now b4 fore me is whether, in the:
~
courne of his relationship with Stephen Comley, Roger-Fortuna either (1) violated-provisions of a Commission, f
2 regulation or articulated policy; or (2)'short of such a i
-violation, acted in an inappropriate manner given the importance and sensitivity.of his position as the. Deputy l r
Director of the arm of the Commission responsible for the f
investigation of possible wrongdoing on the.part.of NRC l
l licensees.
Before proceeding to my conclusions on that question as - derived from the. fruits of the investigation now in hand, a few preliminary observations are in' order.
L 1.
I cannot emphasize too often or too strongly~that-this is an interim report and, as such, is.not to be taken-
~
(
l as representing an ultimate determination on. the. question at j
hand.
As will be seen, I am entirely persuaded from the r
i material currently in my possession -- most particularly'the l-tape of the January 14, 1987 telephone conversations between Fortuna and Comley -
that such a determination cannot be-confidently reached in the= absence of the receipt and 112 The Commission 1 regulations that might.come into play here include the following sections of 10 CFR ParW O,'.
1 governing the conduct offemployees: 0.735-3 (a) (3)-(6) ;
O.735-30 (c), (x) ; O. 735-49a (b)-(d), (f).
Part IV, section B (1) (a) of chapter 2101 of the NRC Manual might:also be relevant.
t a
F
a 50 1
l examination of any existing tapes of other recorded telephone conversations between those individuals.
On that:
score,=I have.only Douglas Ellison's word that there are, or t
at least were at one time, tapes of 40 to 50 such additional conversations.
But, although Comley has explicitly. declined either to confirm or to deny his' current possession: of. those tapes, there is cause to think that Ellison's information is Correct.
To begin with, it-is reasonable to suppose that, if in-f act he is without tapes subject-to the subpoena, Comley would have said so at the very' outset and thus spared 1
himself the contempt o'f court citation and the. severe accompanying financial' penalties (to s'ay nothing of the possibility of imprisonment at a'later date)..
Secondly, in his July 6, 1989 motion asking that the-United ' States District Court for the District of-Massachusetts stay its June 23, 1989. subpoena enforcement order pending appeal, i
Comley represented (at pp. 1 - 2)-that Respondent [i.e. Comley) will suffer irreparable harm if the subpoena is enforced and the stay is not granted in.that enforcement will result in the disclosure of.information to the Nuclear-Regulatory Commission.
The information also
-l l
would be' subject to disclosure to other federal agencies, the: Congress, ' and the general-public.
Once such information is-i disclosed, it cannot be retrieved and placed i
back in a confidential status.
The disclosure of information also would have a chilling effect on Respondent's efforts to gather information on nuclear safety and wrongdoing within the. Commission itself.
It would further have a chilling effect on the
i 1
e 51 1
1 I
attempts of other individuals and organizations attempting to gather information on nuclear safety and other I
issues of public. interest.
J i
That representation could not be easily squared with any insistence at'this juncture that there are at present no-f tapes subject to the subpoena.
2.-
Because the tape in my possession of the January 14, 1987 Fortuna/Comley telephone conversations is the-centerpiece of the investigation to date, I was confronted N
l t
with the necessity of deciding how much reliance could be.
l placed on.the tape given the high probability that itthad been altered by Ellison before being turned over to OIA.
Needless to say, that probability was unsettling.
Nonetheless, I am now satisfied upon careful reflection that.
h l
there is no cause to question the authenticity of the' tape insofar as-its content is used in this report.
More specifically, although Ellison may have deleted some material-from the tape, it seems most unlikely that he tampered with the recording of those exchanges between Fortuna and Comley that are set forth in the Statement of
~
Facts and are discussed in this-Analysis.
In short, I L
entertain no reluctance in assessing the significance'of the l
1 3.As earlier noted, supra pp.4-5, OGC resolvedJfor-me the more generic issue as to my use at all of surreptitious recordings of telephone conversations involving Fortuna.
i
?
't
i 52-content of the tape on the basis that Fortuna and Comley actually said what'is attributed to them on the tape and that any tape alterations made by Ellison'did not affect the context of their statements to'an extent material-toLthis investigation.
(Once again, although-invited to do so.
Fortuna has not claimed otherwise).
3.
Nothing transpiring in recent' months has led to'a-reconsideration of my-decision last March'not to. interview Comley in connection with this investigation..That decision was initially founded upon a' conviction that Comley could-not be counted on to provide truthful: answers.to any questions that might be addressed to him.
Given his subsequent adamant refusalt to-comply with: the subpoena. even after havint been ordered to do-so by a federal courti it-now is a virtual certainty.that an' interview:would have
~
found him wholly-uncooperative and thus-could have served no useful purpose.
4.
My assessment of the investigative record in terms of the question at hand was founded on two premises that warrant precise identification.
The first is directed to what must be shown in order to find Fortuna guilty of conduct in violation of a Commission regulation or articulated policy.
On that score, I have proceeded.on the premise that there must be clear and-convincing. evidence that such has occurred.
Stated otherwise, in light of its seriousness in terms of Fortuna's career (among other 1
- ~
1 l
53 considerations), such a charge should not be deemed 2
sustained on the basis of speculative conclusions drawn from uncertain facts.
The second premise is that the propriety of the conduct of a Commission official in a position such as that held by Fortuna is not to be judged solely on whether he or she has violated a specific regulation orLarticulated'NRC policy.
l l
To the contrary, the Commission has every_right to expect Fortuna, in common with its other managers, to compcet
]
himself at all times in the performance of'his official duties with a full measure of judgment and-circumspection.
Indeed, the existence of such an: obligation-would seem to be particularly apparent in-the case of a senior (SES) official
'e of a Commission office that, as-OI, is in constant communication with members of the public on the most sensitive matters.114 In short, the adage concerning
~
l Caesar's wife should be taken as applying.to Fortuna in total measure during his contacts with Comley -- contacts said by Fortuna-to have been tied'to:the discharge of his official responsibilities.
l 114 : Stated otherwise, I draw a sharp distinction between what might be~ appropriate conduct in the case of a
~
non-supervisory line investigator and what'can-fairly be expected of one who, by virtue of his: inclusion in the Senior Executive Service, may be held to a much higher' standard insofar as the exercise of good judgment and discretion is concerned.
i
54 With the foregoing observations in mind, I turn to the question for decision.
For the reasons that follow,.I reach these conclusions:'First, although a portion of the dialogue between Fortuna-and Comley in their telephone conversations on January 14, 1987 might be susceptible of the interpretation placed upon it by Ellison,-to no' extent can that be regarded as a compelled interpretation.
That being-so, there is insufficient evidence in the existing record to mandate a finding that Fortuna improperly provided Comley with confidential. official information or improperly failed to pass on to others in the NRC information supplied by Comley.115 Second, the tape of the January 14 telephone conversations clearly establishes that-Fortuna did not properly conduct-himself in those conversations.
115 In my June 19, 1989 affidavit supplied to the federal district court in support of the petition to enforce the subpoena directed to Comley, I represented in paragraph 5 (at pp. 2-3)-that the recording of the January 14 conversations had " led me to conclude that [Fortuna] may have disclosed. sensitive and confidential information to Mr.
Comley-and may have. failed to disclose to other NRC officials relevant information that he received from Mr.
Comley" ~ (emphasis' supplied).
That representation still stands.
As I trust-that the statement in the text makes clear, and as will be' elaborated upon in ensuing. portions of-this report,'I deem the January 14 conversations as establishing the real possibility, albeit not the requisite near certainty, that Fortuna did precisely what I said in the affidavit 1he might.have done.
It is my~ hope'and anticipation that any obtained recordings of.other telephone-conversations between the two individuals will shed further light'on the matter.
- i
.. '.. 4
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55
. 1 A.
The allegation that Fortuna improperly disclosed to Comley information respecting Ellison's personal life-is readily dispatched.
Apart from the facts that Ellison did l
J not receive a formal promise of' confidentiality.from OI and that Region I apparently rescinded.its promise.along,that line,116 the record establishes that hisfarrest was publicized.in at least one' newspaper article'and that'Comley likely was already aware of it.
Of yet greater importance, there is reason to believe that Ellison extracted'from the tape he supplied to.OIA the portion of the first l
conversation in which his arrest was.discusred.. Although the motivation for that action is obscure,-in the circumstances Ellison.is hardly in a-good position to insist 2
that there is a sufficient case against Fortuna.on this-matter.117 L
116 l
Even had Region I not. withdrawn its grant'of.
confidentiality - (see supra - n.
13), it is; doubtful-that (assuming his awareness of it) Fortuna would have violated the grant by referring tocEllison's arrest.. It: appears'that i
the grant was intended simply to-preserve Ellison's j
anonymity as the source of the allegations'against Niagara
~
x j
Mohawk involving Nine Mile: Point.
-(That;is why, according.
to what Matakas told OIA, the grant was rescinded when.the Region learned that.Ellison had taken those: allegations..
directly to the utility).-
Fortuna's telephone conversation.
i with Comley,.and any references therein to Ellison,.
seemingly had nothing to do with Ellison's being.the-source-of the Nine Mile Point allegations.-
117 This should not be takan as reflecting a belief-that it is good practice for someone'in Fortuna's position-(Footnote Continued) i e
...e.-e a-v w-
,w-
,,e
f ' '. '
56 B.
From beginning to end, the January 14' conversation 1
between Fortuna and Comley has a decided conspiratorial j
flavor.
On this score,-it is sufficient to cite.these-examples from the dialogue quoted directly in the' Statement of Facts (at supra'pp.127-43): (1) Fortuna's' assurance that i
he would not tell anyone about Comley's plans.respecting the flying of a plane with an anti-nuclear power banner; (2)
Fortuna's notation that he was " purposely" absenting-himself
-[
from Comley's meeting at Justice the following day and his I
further observation that " fortunately" he.was on leave the day that.the arrangements were'made to have the NRC-t represented at that meeting; (3) Fortuna's statement that he had not told anyoneJabout some unidentified = matter and his accompanying request that he not be " ruin [ed)"; (4) in response to a Comley request that he not mention the "Woplav" case to anyone, Fortuna's assurance that he had'not l
said a word about it;118 (5) as a follow-up (Footnote Continued) to discuss with persons.outside of the NRC embarrassing aspects of.the personal life of an alleger..
In this regard,
-l I agree with Hayes' view that such discussion should be discouraged unless an on-going investigation necessitates
(
it.
~
118 In that dialogue, as well as others, Fortuna employed language that might be thought by some to be inappropriate in the instance of a Commission official
)
p speaking to a third party on matters said to bear upon the discharge of the official's duties.
In Fortuna's-defense, however, the conversation was a private one. (at least (Footnote Continued)
L i
'. [ ', ~
l 57 to that assurance, Fortuna's accedence to Comley's request that he not have certain unspecified matter-in his j
possession by promising Comley that he would remove that.
matter from his office the following day; (6) Fortuna's briefing of Comley respecting the manner in..which the latter should conduct himself at Justice and, at a-later point, his discussion with Comley of a telephone 1 conversation between Fortuna and White, the OI Region I Field = Director; (7) Fortuna's disclosure to Comley of.the'aubstance of an internal conversation between two other OI employees (Hutchison and Matakas); (8) the particularly elliptical exchange between Fortuna and Comley-in which Fortuna cautions that " mum's the word", goes on to state that i
"Chester (White) thinks that I shouldn't know about anything", and, still further, notes that:he gets " scared"-
i because "if.they ever find out, they'll,say you should have
{
i been telling us, your first: loyalty's to this office"; and (9) in response to Comley's speculation that Fortuna had "a lot of stuff, but (was) waiting," Fortuna's1 acknowledgement-l that-he had "some" but did not "want to be front city".
i-(Footnote Continued) insofar as.he'was aware) and Comley did not seem offended by Fortuna's choice of language.
Giving Fortuna the benefit of i
the doubt, I am prepared to assume-that he refrains from the use of obscenities in more public settings or where the other party to the conversation might find it offensive.
t
)
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j 58 i
l Taking into account Fortuna's explanations of these statements,11' I am nonetheless left with the firm conviction from the statements taken as a whole that an unhealthy relationship existed between Fortuna and Comley.
Moreover, although the tape manifestly does not establish' with the requisite degree of certainty that, in the' course of that relationship, Fortuna in fact turned over i
confidential and sensitive information-to Comley in violation of a commission regulation, it does reveal that Fortuna took an exceptionally expansive view of what'it is t
appropriate to communicate to an outsider.
On this score, I need to point only to Fortuna's disclosure to-Conley of the l
l substanceaof the conversation between Hutchison, an-OI Headquarters official, and Matakas, the Region I investigator, respecting Matakas' misgivings'about his own attendance at the upcoming Justice meeting.
That internal conversation had at least an aroma of sensitivity and Fortuna's ready willingness to disclose it to Comley strongly suggests that he believed that few. restrictions indeed applied to his endeavor to establish rapport with
~
Comley.
118 In doing so, I have also attached significance to the fact that over two years elapsed.between the January 14, 1987 telephone conversations and the March 22, 1989 interview of Fortuna.
Obviously, in the course of such an interval, memories dim.
j y
59 b
Similarly,.the comley/Fortuna exchanges raise the possibility that Fortuna may~have-unjustifiably withheld-from others within the NRC information that had been supplied to him by.Comley.
For example r there is the reference to the "Woplav" case and Fortuna's agreement to remove certain-unidentified (but conceivably related) matter-(
from his office.
Additionally, Fortuna was uncertain as to.
4 the meaning of his notation that he had not told anyone
- about "this" (whatever he. had in 'aind by. "this") with the further comment " don't ruin me".
Although these statements fall short of converting the possibility of' withheld information into a reasonable certainty!that such occurred, they do give cause to inquire further (throughLthe Comley
(
subpoena).
But no matter how one might view the~ likelihood that l
the Fortuna/Comley relationship gave birth _to a viciation of 1
j a regulation or articulated Commission policy on Fortuna's part, there can be scant question that, time and time again-i in the-January 14 conversations, Fortuna= crossed the line separating proper and improper conduct on the partLof a person occupying his relatively important official position.
Without rehearsing all nine of the specific portions of the dialogue listed'above, I would. stress the particularly.
obvious and gross impropriety of Fortuna's-response to-l Comley's suggestion that he (Fortuna) had "a lot of stuff" i
j but was " waiting" (to release it].
By his own admission, in
- l t
+--e e-n
_.._______._____._._________._..-__..____,-_....._a
_,s
't
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60 acknowledging that he had "some [ stuff]" but did not want to be " front city", Fortuna was deliberately playing along with Comley's belief that Fortuna was aware of " horrible" things that had been going on in NRC for rfperiod of time)and I
would, at some future date, publicly air.the wrongdoing..
In' expressing the opinion that this was'a justifiedLeourse in order to encourage Comley to " keep calling" and. conceivably to provide valuable information, Fortuna revealed.(in my-judgment) a lamentable lack of understanding respecting the significance of the position-of OI Deputy Director and the-absolute necessity that one occupying that position do nothing to foster the impression that he is defaulting on his responsibilities to his employer and the public at, large.120 i
i Nor can the exchanges cited above,be1 justified on the basis of Fortuna's broad explanationLthat he was simply cultivating a potential source of.information'..Moreover, that explanation does not provide. adequate support for some
[
of Fortuna's other statements during the telephone-conversations.
For example,.despite the explanation,-one l
might ask whether it is fair to conclude that Fortuna, as OI 120 I need not and de not express an opinion here-regarding whether such a response to.comley.would-have been acceptable if provided by a line OI' investigator rather than' the Deputy Director of the office.
See supra n. 114.
-1
't
......a..
. -. - ~
s 61 Deputy Director, far overstepped his bounds in telling Comley that, if he objected tb Matakas' presence at the Justice meeting, Comley should ask Matakas to depart?
Given the fact that Matakas was officially designated to represent the NRC at the meeting, and as the OI investigator assigned to seabrook could be presumed to have information pertinent to the subject to be discussed-st the meeting, to state the question is to answer it.
Fortuna's explanation-of~his conduct during the telephone conversations becomes even less persuasive when it j
is recognized that Comley, unlike Ellison, did not work in
]
.i or.about a nuclear power facility and'thus could not be i
expected to provide first-hand.information bearing upon the safety of the operation of any such' facility.
To be sure, Fortuna might have thought of'Comley as a potential rionduit of information originating-with a facility employee who, for one reason or another, might be disinclined'to-approach the NRC directly.
Fortuna was unable,.however, to identify any t
important information that he actually had received from j
Comley.
In any event, the (at best) remote' possibility that' i
Comley might function as a conduit scarcely could serve to I
warrant the lengths to which.Fcrtuna went in his conversations with Comley _ to. curry comley's favor.
j I need add only that Comley's-reputation as an
]
anti-nuclear power activist has not influenced to any degree:
l my ccaviction that Fortuna exercised, at minimum, i
--.--.i.
s y,
1 l
62 l
unacceptably poor judgment in his contact with Comley on i
January 14, 1987.
I would have reached precisely the same i
1 i
conclusion had Comley been either an avowed supporter of 1
)
nuclear power or a professed neutral on the subject.
What is significant is not the particular orientation of those members of the public with whom Fortuna might have had
)
direct dealings in his official capacity.
Of pivotal
{
i importance is, instead, th&t top-level OI managers interact i
with all members of the public in an above-board manner with due regard for the realities and appearances associated with any such interaction.
This Fortuna simply failed to do.
i C.
There is one final matter'to be considered.
It appears _from the Statement of Facts that there was not total agreement among the OI interviewees regarding-the. precise scope of Policy 18 in the OI Investigative Procedures Manual, concerned with-disclosure of information outside of the NRC.
My further impression is that OI management.has provided relatively little (if any) guidance'on the matter of the extent to which it is proper for an investigator to supply information to a possible source in order to j
'cu'ltivate" that source and possibly obtain valuable information in return.
I fully appreciate-that it is not desirable, and perhaps not feasible, to lay down any rigid prescription in this regard, to be followed by every 0I l
l l
I 1
i j
i 63 i
l employee to the letter.121 It is also true that the absence of such guidance does not aph~ar to have been a root cause e
of Fortuna's conduct in this instance.
Nonetheless, the i
commission may wish to call upon the Office of the Executive j
l l
Director for operations, to which OI reports, to look into i
i the matter in greater depth.
l I
For the foregoing reasons, I recommend that the Commission make the following findings:
1.
Any definitive determination respecting whether Roger A. Fortuna violated a Nuclear Regulatory Commission regulation or articulated policy in his relationship with Stephen B. Comley must abide the event of an examination and analysis of any additional tapes of recorded telephone conversations between them that might later be obtained in response to the subpoena issued to Comley.- No such l
121 The responses.of some of the OI interviewees might be taken as reflecting a belief.on their part not merely that it is standard practice in the investigative community l
both within and without the NRC to cultivate sources but, as well, that investigators have carte blanche in carrying out l
that practice.
I doubt that this is true; i.e.,
I deem it highly unlikely that, as a general matter, investigators are totally free to do as they please in dealing with potential informants.
De that as it may, my suspicion is that this Commission would not accept any such notion insofar as its OI personnel are concerned.
7+,
')
i I
64 I
determination is possible on the basis of either (1) the.
tape of the January 14, 1987 conversations that were i
supplied by Douglas S. E111sont er (2) enything else obtained in the course of the investigation to date.
2.
On the basis.of the invwstigative material now in j
hand, it clearly appears that Roger A. Fortuna cond'Jeted
-l himscif in his relationship with Stephen B. Comley in a i
manner entirely inconsistent with t!.a dictates of his official positien within the Senior Executive Service as j
Deputy Director of the Commission's Office of Investigations l
(01).
In addition te an endorsement of the foregoing propoced findings, I recommend that the Commission refer to the Office of the Executive Director for operations the question of the adequacy of OI's guidance to its employees on the j
subjects of (1) the disclosure of information to outside l
parties; and (2) the cultivation of outside potential sources of information that might be of value to 01 or other t
offices within the Commission.
l b.'
1 Alan S. Rosenthal
(
i 1
i September 21, 1989 l
1 i
9g 4
65 i
i APPENDIX Material in Investigative File Reference or-Otherwise Relied.
I 2
Upon in this Report
(
- STENOGRAPHIC TRANSCRIPTS OF INTERVIEW
- Benny Bill Hayes (March 15, 1989)
- Chester W. White (March 20, 1989)
B
- William D. Hutchison (March 22, 1989)
- Roger Anthony Fortuna (March 22, 1989) l l
REPORTS OF INTERVIEW (NOT STENOGRAPHICALLY TRANSCRIBED)
- Richard Alan Matakas (March 23,1989) l T
DOCUMENTS 2
i Transcript of Ellison Interview by OIA on September.12, l
1988, pp. 3-5, 18 l
Notes of Donna M. Rowe (pertinent pages)
OI Investigative Procedures Manus 1, pp. 2-2, 3-3,.7-1, 7-2 l
OI file copy of Allegation Description Report of Interview of Richard' Alan Matakas by OIA,. dated
{
December 14, 1988.
r 122 Copies of those documents indicated by an asterisk I
were furnished to the Chairman's office in connection with the May 2 Report of Investigation.
Copies of the other materials listed in this Appendix are being furnished to the Chairman's office at this time.
I
-d t
66 l
TRANSCRIPTS OF ELLISON TAPES l
t Tape No.
1, pp. 7-8, 78-79 i
~
Tape No. 2, p 41 Tape No. 3, pp. 107-08 Tape No. 4 i
f
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t Y
b f
2
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e f
,