ML19354E873
| ML19354E873 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 11/07/1989 |
| From: | Hyland J NRC |
| To: | Malsch M NRC OFFICE OF THE INSPECTOR GENERAL (OIG) |
| Shared Package | |
| ML19354E856 | List: |
| References | |
| NUDOCS 9002020145 | |
| Download: ML19354E873 (8) | |
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November 7, 1989
- i 70: MARTIN C. MALSCM INSPECTOR GENERAL (ACTING) j
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FROM: J. BRIAN SYLAN SUBJECT ROGER A. FORTUNA i
'DtPUTY DIRECTOR, 0FFICE OF INVESTICATIONS ALLEGED MISCONDUCT i
INTRODUCTION e
At the request of the Acting Inspector General, certain j
materials were reviewed, detailed below, relating to allegations l
ande against Roger F. Fortuna, Deputy Director, office of a
Investigations, United States Nuclear Regulatory Agency (NRC).
l Mr. Fortuna'is currently in a suspended status pending resolution of this matter.
Specifically, Douglas S. Ellison, a former esployee at the Niagara Mohawk."ower Corporation's Mine Mile Point Unit 1, New i
York State alleged:
Mr. Fortuna engaged in criminal misconduct by discussing and sharing Ellison's case with unauthorized third parties, not 4
employed by the NRC or the utility, on or about January 14, 1987.
Mr. Fortuna engaged in criminal misconduct by discussing and sharing sensitive NRC information and strategies in reference to several investigations with unauthorized third parties outside of the NRC, on or about January-14, 1987.
These allegations were initially investigated by the office of Inspector and Auditor, NRC.
Judge Alan S.-Rosenthal was subsequently retained to investigate this matter.
Judge Rosenthal has submitted two interia reports.
The investigation is temporarily stalled pending enforcement of a subpoena duces tecum for certain-taped recordings of telephone conversations alleged to have been made between Mr. Fortuna and Steven Conley.
1 SCOPE 0F WORK A request was made to review certain documents and reports relating to the investigation being conducted by Judge Rosenthal.
The purpose of the review was to make a determination as to whether Mr. Fortuna l
9002020145 900129 PDR ADOCK-05000220 T
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e Violoted any federal law o
complied with generally accepted investigative practices o
Complied with standards of conduct applicable to an official in the Senior Executive Service The report was not to contain recommendations as to what personnel or management actions. should be taken.
The following documents and reports were studied l
o Interia investigative report dated September 21, 1989 as prepared by Judge Rosenthal i
o Transcribed tape recording of January 14,1987 between Mr. Fortuna and Steven Conley 1
o Transcribed interview of Mr. Fortuna as conducted i
by Judge Rosenthal and assistants on March 22, I
1989 J
o Interview of Benny Bill Rayes as conducted ~by Judge Rosenthal on March 15, 1989 o
OI. Investigative Frocedures Manual, Chapter 3, Investigative Policies, also, Chapter 7, Confidentiality i
o Performance plan for Mr. Fortuna dated November 19, 1947 for period July 1, 1987 to June 30, 1988 3
o Position description, Deputy Director, Office of Investigation A report issued by the Comalttee on Government Affairs entitled " Serious Problems continue in the Nuclear Regulatory Commissions' Internal Investigations" dated August, 1989 was also reviewed to obtain general background information.
FINDINGS l
VIOLATIONS OF FEDERAL LAW P
i The most serious allegation against Mr. Fortuna, the l
possible violation of Federal law is the easiest of the charges to resolve.
A review of the above documents did not contain any i
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l inf orcatien to ladicoto that Mr. Fortuno vaoJatoa any provisacn3 l
i of Title 18, 5. S. Cricanal Code cr of the Privc3y &?,t.
Thio c;nciteten is sh2 red by the 031ted States Attsraty's Office is Baltimore, Md.
In additlen, f# r the FBI was advised of the i
facts surrounding this matter, Ytated they had no investigative interest.
The charges of criminal aleconduct could have been resolved after a review of the transcribed tape recording of the l
conversation between Fortuna and Conley.
There is simply no i
evidence to support the charges of Mr. Ellison.
l COMPLIANCE WITH GENERALLY ACCEPTED INVESTIGATIVE PRACTICES l
The courts'have recognized that the Federal Government's i
use of informants and confidential sources is lawful and often i
essential to the effectiveness of properly authorized law l
enforcement investigations.
Use of informants and confidential sources to assist in the investigation of possible criminal activity may involve an element.of deception, intrusion into the
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privacy of individuals, or cooperation with persons whose reliability and activation can be subject to question.
Therefore special care must be taken to carefully evaluate and closely i
i supervise their use.
safeguards should exist to ensure that l
Andividuals rights are not infringed upon and that the Government itself, does not violate the law.
At this point it alght be helpful to distinguish between an informant and a confidential source.
An informant is usually any non-law enforcement person, who, by reason of his/her close i
association with criminals, supplies regular and' constant information about criminal activities.
They can be expected to participate in investigations, testify in court, or provide Investigative leads.
_r A " confidential source" applies to any person who provides i
investigative information to the Government, who requests or can reasonably expect confidentially and who does not meet the s
definition of an informant.
Recognition of the distinction between an informant and a confidential source is important because of-the procedures genert.11y used in " handling" such individuals.
In reviewing the documents referred to previously, It is my determination that Steven Conley would at best be described as a potential confidential source.
This designation is significant because of the reporting standards discussed above.
At the time of the interview, March 22, 1989, Mr. Fortuna was asked:
Q.
"Has he (Coaley) over in fact provided any information he wished to become the basis for an CI investigation j
or inquiry?'
A.
"Well, he's talked to us about substandard parts, you know, bogus parts and things like that.
And I guess-i !
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I in the grand ochree of thitte he has tried to be very helpful.
53's given as starf, but I would say fcr the i
most part, we probably already know about it, but he j
was very sincere about it.
And to be honest with you, I thovaht someday he nav come throuah.
He nav come throuah. (Esphasis added)
The general tone of the interview reflects that Mr. Fortuna i
i was attempting to gain the confidence of Steven Conley while j
establishing his (Fortuna's) credibility along with OI being i
i recognized as an independent and objective investigative I
component within NRC.
To put it in terms of a street expression, j
Mr Fortuna was 1, betting on the come".
Therefore I find no fault regarding Itr. Fortus's etatutt in hit handling el HSVen 965,19Y as a potential confidential source. This does not answer the question as to whether Fortuna, as the Deputy Director, should be actively engaged in developing confidential sources.
1 Such j
activity is generally the responsibility of-line investigators.
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The position description for the Deputy Director, 02, did not contain any such duties nor did Fortuna's-performance plan.
The question remaining is whether Fortuna exceeded his authority in 4
attempting to develop confidential sources or was he a conscientious investigator willing "to go the extra. yard".
COMPLIANCE WITH QUALITY STANDARDS FOR INVESTIGATORS Based information provided, it does not appear as though l
Mr. Fortuna's relationshi of a confidential source.p with Steven Conley met the threshold However it wculd appear that Mr.
Fortuna should have memoria11 sed pertinent facts discussed.
the-as "--- -* The Fresident's Council on rategrity and Ef ficiency is comprised of all the Inspectors Generals appointed by the Fresident.
In addition, the Department' of Justice and the Federal Bureau of Investigations have been members since its 3
establishment in 1981.
The council adopted." Quality Standards-for Investigators" in 1986.
The qualitative standards relate to
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the functions of planning, execution, reporting, and information j
management.
The standard for information management reads:
"Results of investigation should be stored in a manner allowing effective retrieval, cross referencing and analysis."
i The guidelines state that the degree to which an organization achieves its goals is affected by the way information is collected, stored, retrieved and analyzed.
Information or the lack of it, has a direct influence on management's ability to make sound decisions relating to investigative matters.
1 Based on the documents reviewed, it appears that Mr.
Fortuna did not consistently adhere to the qualitative investigative standard on information management.
See for
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examplo pegno 136 - 140,cf the rccard:d interview in which Mr.
j Partuno wa3 unable to 7cco11 any reforOcco relattag to the "WOPLAA" case or the nature of the materials la his office as discussed with Steven Conley on January 14, 1987.
It may be j
true that Mr. Fortuna's judgement is being questioned with the 1
benefit of hindulght.
But the over-all tone expressed during thle interview is that he did not make a practice of reducing to writing information of a-stynificant nature.
See also pages 82-i 83 where Mr. Fortuna made reference to his experience at the D.
l S. Department of Justice. Se stated that he obtained "some i
incredible. If you will, intelligence information which later was passed on to other agencies..... ".
He continued the point bg "that when we worked with these people there were no memorandums
- l in the flie".
While this may have been an accepted practice at i
i the Department of Justice at the time, failure to document i
pertinent *1nformation is not an accepted practice within j
Investigative agencies today.
l Mr. Fortuna was questioned in depth on the length of time l
the Ellison case was in a open status and why Ellison was not
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apprised of the results of the investigation.
Investigative j
agencies do not routinely advise complainants or the general i
public of the final disposition of an investigation.
Agencies will genera 21y respond to inquiries from allegers or complainants on the status of a case; 1. e. under active investigation l
referred to the D. S. Attorney for a prosecutorial decision,-
i etc. In the Illison referral, 01, was not the primary j
investigative agency.
It was acting as a conduit to insure that the investigation met standards and that it was referred to the appropriate agencies.
CI did maintain the case in an active status while waiting 4
i for a decision from the U. S. Attorney's.
The preferred procedure would be to place an investigative file where all logical investigation has been completed.in a "pending inactive" i
status.
A tickler system would then be maintained to schedule l
follow-up contacts with the decision or action agency until the matter is resolved.
It is my view that this line of questioning was on a "non-issue" as related to-the charges made against Fortuna.
i COMPLIANCE WITH STANDARDS OF CONDUCT Naving dispensed with the allegation that Mr.- Fortuna's i
actions constituted criminal, attention is directed to the question of whether his conduct complied with the standards of an l
NRC official in the Senior Executive Service.
All investigators interviewed were asked for their ' interpretation of Policy is as 4
set forth in Chapter 3 of O!'s Investigative Procedures Manual.
i Policy 18 pertains to disclosure of information by NRC employees.
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L Policy is is set forth verbatin below along with Policy 17.
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17, igf Polge{ppe r tEord gn dc atcut'with ggli hltyeela agd P 11ey 18 to r
wol.
3t t 3 rc00 any co to ero to those NRC employees outside the office of Investigations..
otherwise Policy 18 would directly' conflict with Policy la which 1
addresses 01's responsibility for referring information to other 1
investigative egencies and prosecutors.
Palicy 17 reads:
o O! shall advise cognizant NRC components of safety issues discovered as the result of an ongoing 01 l
investigation 1
Policy 18 reads:
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o with the exception of significant safety issues,
,,,information regarding an ongoing O! investigation will l
not be disclosed by any NRC employee outside NRC without he specific approval of the Director, 01, or his designee.
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INHE IIIS.D f968ther, these policies statements imply that l
OI will advise cognizant NRC components of safety issues 1
resulting from its investigations, but any KRC employee will not i
disclose any other information regarding an ongoing.
investigation.
This distinction is critical because the line of questioning j
directed to Mr. Fortuna laplies that by discussing any. aspect of an ongoing investigation with a potential confidential source he l
was in violation of Policy 18.
As Judge Rosenthal indicated l
l from other interviews conducted with OI investigators, it was
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stated there was to be some "give and take" in developing potential sources (see page 17 of the second interim report).
It is my judgement that the discussion between Fortuna and Conley of certain events did not in itself constitute a vio2ation i
of Policy 18.
The questions as to whether Fortuna went-too far in discussing various matters or lost control of the situation l
1s a matter for the deciding official.
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Judge Rosenthal states in his report (see page SS) "that
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there can be no question that, time and time again in the January 14 conversation, Fortuna crossed the line separating i
proper and improper conduct on-the part of a person occupying j
his relatively important position...
I would stress the particularly obvious and gross impropriety of Fortuna's response to coaley's suggestion that he (Fortuna) had a 'a lot of stuff' but was ' waiting' (to release it).
Fortuna was deliberately 4
playing along with Coaley's belief that Fortuna was aware of
' horrible' things that were going on in NRC.."
Judge Rosenthal also states that "Fortuna revealed (in my judgement) a lamentable lack of understanding respecting the significance of the position i
of CI Deputy Director.."
The reader is referred to the section above relating to i
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l informants and confidatial courcoa whero their use 'aay tavolve i
an element of deception" Judge Rosenthal is met la the position
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to decide what an investigator's responsibility may be to.cerrect
,L any source's perception of an agency.
Again, as to whether Fortuna was derelict in allowing Conley to retala his lapression,'
j even though misguided, is the decision of the deciding officer.
i If management is allowed to scrutinize every word or comment made by an investigator during the course of his duties, it would have {
a severe chilling effect.
It would also jeopardise the i
investigative organisation's-independence.
Such a situation would seriously violate the second general standard for investigative o{ganisations:
J "In all matters relating to investigative work, the l
investigative organization must be free, both in fact and appearance from impairments to independence aust be j
organizationally independents and must maintain an independent attitude."
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i It was stated in interviews with other investigators I
1 associated with this matter that CI has issued little guidance in developing and hanating informants and confidential sources.
l This situation should ie immediately addressed and corrected.
Mr. Ellison charged that Fortuna in the January 14, 1987:
conversation with Conley had inappropriately discussed sonettive information relating to him (Balison.
charge, I also share the same concern)s expressed by JudgeIn evalua Rosenthal of relying on a" tape that 10 <enbject to questica for j
its completeness and accuracy.
Bowever, on reviewing the transcript on hand,-I find but one passing reference to Ellison
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ande by Fortuna in the initial conversation.
I It has since been determined that Ellison-was present with Conley during the first conversation and had listened to it on an-extension with or without the knowledge of Conley.
During the second conversation Conley specifically asked Fortune why the sexual harassment came up?
Atter Fortuna'e esplanation Conley asked " yeah.
How did they find out about 2111 son's sexual harassment case?"
Subsequent dialogue centers on the nature of the charges and the effect ed someone charged with such a crime may have on an association seeking public support.
Documents made available for my review, indicate that Ellison himself had discussed the fact that he was charged-with a crime on several occasione NRC and other organisations were aware of it; and it was described as common knowledge.
Based on the course of these telephone conversations, one could conclude that the second call was made at the urging of Ellison in order to engage Fortuna in a discussion of the criminal charge.
Since the topic was initiated and pursued by Conley it could be considered as a reverse form of entrapnent-4 j
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hod tho inf ormation ef forod.' by Fortuno b0en cont 2 cont A04 anc
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.Oubjoet ' te the Privcey A3t. Th10 10- nogot0d becouoG. the-
'laternation woo ef publie vosord.
Th9. turrCptatiouO FOOGrding Of.
thia-conversation also creates doubt as to the actives of Ellison and Conley and the subsequent *hara" sustained by-t-
l Ellison as a result of the-conversations.
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