ML20042F724
| ML20042F724 | |
| Person / Time | |
|---|---|
| Issue date: | 08/07/1989 |
| From: | Vorse J NRC OFFICE OF INVESTIGATIONS (OI) |
| To: | Hayes B NRC OFFICE OF INVESTIGATIONS (OI) |
| Shared Package | |
| ML20042F712 | List: |
| References | |
| FRN-53FR45768, FRN-55FR243, FRN-56FR65949, FRN-57FR61780, RULE-PR-19 AD06-2-4, AD6-2-4, AE11-1-006, AE11-1-6, AE11-2-006, AE11-2-6, NUDOCS 9005090307 | |
| Download: ML20042F724 (5) | |
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August 7, 1989 MEMORANDUM FOR: Ben B. Hayes, Director Office of Investigations FROM:
James Y. Vorse. Field Office Director Office of Investigations, Region 11
SUBJECT:
ORAFT OF FINAL SEQUESTRATION RULE in response to your Memorandum of July 28, 1989, regarding subject Sequestration Rule, 01:Rll hereby submits the following examples of problems encountered in the conduct of investigations in which either the Sequestration of Witnesses or Exclusion of Counsel would have been both beneficial and proper.
It is appropriate, at the outset of this memorandum, to ensure that it is understood that the NRC Office of Investigations has no objection to any individual's basic right to advice and/or accompaniment by counsel in any situation, including an interview by 01. The objection arises when this counselrepresentsboththepotentialwrongdoer(licensee)andapotential innocent witness to the alleged wrongdoing. An inherent conflict of interest exists in that situation.
The following examples illustrate how conflict of interest situations as described above, have impeded the progress and integrity of 01 investigations.
1.
Case No. 2-87-002: Material False Statement by TVA Manager of Nuclear Power regarding compliance with 10 CFR Part 50, Appendix B
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Licensee: TennesseeValleyAuthority(TVA')
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Investigators: ' Daniel D. Murphy
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E.L. Williamson Larry L. Robinson d'
Example Number 1:
Just prior to the final 01 interview of the TVA Manager of Nuclear Power, at the direction of an outside law firm that was retained by TVA to represent Senior TVA Managers and Board of Directors, TVA's Office of General Counsel sent a letter to each TVA employee that had been previously interviewed by 01 without presence of counsel.
At the time of their intervit:ws, these employees were not suspected of any wrongdoing by 01, and they did not request represen-tation by counsel. The aforementioned letter suggested that each addressee request a copy of his/her transcript of interview from 01. The letter also suggested that, "...we would appreciate your sharing it with us so that we can 9005090307 090007 Ys3hft45760 PDR s
I Ben B. Hayes 2
August 7, 1989
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be better prepared when O! issues its findings." Attached to this letter was a sample letter of request that could be used to obtain the transcript copy.
Of course, the letter disclaimed any TVA pressure on these employees to either request,or" share"thesetranscriptswiththeOfficeofGeneralCounsel(and subsequently, the outside law firm) Ion where it appeared to be prudent to but I believe it is fair to say that these employees were put in a posit i
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" request and share" copies of their transcripts.
Although this is not the classic example of the inhibition of free flow of
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information from a witness by a licensee attorney actually sitting in on the interview, ostensibly also representing the witness' interests as well as the licensee's; but the above example indirectly applies to the sequestration situation, in that the counsel representing the potential wrongdoers are able to assess potentially adverse testimony prior to the interview of their client during the investigative process. While the discovery process is very appro-priate during the pretrial (prehearing) phase of the prosecution (enforcement) process, it is not appropriate during the investigative phase because it compromises the objectivity and openness of the testimony.
Example Number 2:
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Toward the end of the field investigative phase of this case, 01 received information that the Manager of Nuclear Power had contracted with some outside l
engineers to assess the accuracy of the alleged Material False Statement (March 20, 1986, letter to NRC from TVA), and that these contractors had found that some of the information in the March 20, 1986, letter was not true, and had subsequently briefed the Manager of Nuclear Power to that effect. OI i
identified the contract engineers involved, who were no longer working at TVA, and directly contacted one of these engineers, an Ebasco employee, and arranged an interview date.
Both the Ebasco corporate counsel and the TVA retained counsel became aware of the impending interview. This Ebasco engineer, through Ebasco counsel, cancelled the initial interview appointment.
After a reasonable amount of time and communication between 01 and Ebasco counsel regarding a rescheduled interview date, with no results, 0! subpoenaed the'Ebasco engineer to be interviewed.
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i Present at this interview on February 10, 1988, in addition to the witness and 01, were the Ebasco counsel, representing both Ebasco as a corporate entity and the engineer as an Ebasco employee, and the TVA retained counsel, repre-senting both the engineer personally and TVA Senior Management.
When the TVA retained counsel refused to be excluded from the interview, due to 01's perception of a conflict of interest. 01 terminated the interview. Six months later on August 11, 1988, after extensive legal analysis of both the conflict of interest issue and an additional issue of privileged information under the protection of the Attorney Work Product principle, the Ebasco engineer was interviewed by 01. However, the interview was still conducted in the presence of TVA retained counsel, who was, admittedly, being paid by TVA for this representation of an Ebasco employee.
Ben B. Hayes 3
August 7, 1989 Example Number 3:
During the intet view of an attorney, who in the past ht:
anally repre-sented a senior TVA Manager, the atto-ney retained by i-m lity to re) resent the manager insisted on being prate:.c during the interview to protect tie interest of her client. This was a condition of the waiver of the attorney /
client privilege before conducting the interview. This situation provideS the utility's retained counsel with information concerning the ongoing investigation which can be used to prepare the subject of an Interview at a later date.
2.
Case No. 2-83-038: Harassment and Intimidation of QC Welding Inspectors Licensee: Duke Power Company / Catawba Investigators: James Y. Vorse E.L. Williamson 0
Initial interviewees advised investigators that company lawyers had gathered all welding inspectors and advised by them that " dark forces" (01) were coming to interview them and would compare testimony and attempt to find conflict which could result in criminal sanctions against the inspection personnel.
Interviewees were encouraged to have company counsel present during all interviews for their protection. Licensee advised 01 that any interviews conducted on-site would be in the presence of a company attorney. To avoid potential compromise of the investigative process, 01 interviewed all QC welding inspection personnel off-site after normal work hours at various locations convenient to the employees. This extended the investigation by several months, 3.
Case No. 2-85-004: Possible Deliberate and Willful False Statement Regarding R0 and SR0 Training Requirements Licensee: Florida Power Corp./ Crystal River Investigators: James Y. Vorse Robert H. Burch During initial investigative efforts, the company wanted to represent all parties in the interview process. 01 took the position that non-senior management personnel were entitled to counsel, but counsel could not represent the company. The licensee hired individual private attorneys to represent the non-management employees. After these apparent conflict of interest issues were resolved, the investigation proceeded to its conclusion, t'
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Ben B. Hayes 4
August 7, 1989 la 4
Case No. 2-86-005:
Possible Willful Falsification of Health Physics j
Records Licensee: Alabama Power Company /Farley Investigators:
Robert H. Burch E.L. Williamson Durino the early investigative process, the company attorneys demanded that they '.;.gresent all employees to be interviewed by 01. Over a 2-year period of time this issue was resolved only when the company hired an attorney to represent the non-management personnel and the corporate attorney represented i
the Senior Management. This process extended the investigation much longer.
than necessary and actually resulted in the Commission going to Federal Court to resolve normal, routine investigative issues as they apply to the interview process. The licensee through its attorney continued to place restrictions on the interview process which were unacceptable to 01. All of these factors caused the investigation to be unnecessarily delayed.
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