Text

NRC Post-Trial Brief Including Proposed Findings in Matter of LP Zerr
	ML20059H904
Person / Time
Issue date:	01/10/1994
From:	Robert Davis, Daniel Shapiro; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	; Atomic Safety and Licensing Board Panel
Shared Package
ML20059H899	List: ML20059H897; ML20059H904;
References
	93-01-PF, 93-1-PF, 93-673-01-PF, 93-673-1-PF, NUDOCS 9401310232
	Download: ML20059H904 (76)
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING-BOARD Befcre Administrative Law Judge Morton B.

Margulies

)

In the Matter Of

)

Docket No. 93-01-PF

)

LLOYD P.

ZERR

)

ASLBP No. 93-673-01-PF

)

NRC POST-TRIAL BRIEF INCLUDING PROPOSED FINDINGS Roger K.

Davis Daryl M.

Shapiro Counsel for NRC January 10, 1994 y

9401310232 940110 q=

S PDR MISC i

9401310229 PDR 1-

's UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD t

Before Administrative Law Judge Morton B. Margulies

)

In the Matter Of

)

Docket No. 93-01-PF

)

LLOYD P.

ZERR

)

ASLBP No. 93-673-01-PF

)

i

)

NRC POST-TRIAL BRIEF INCLUDING PROPOSED FINDINGS I.

INTRODUCTION This case arises under the Program Fraud Civil ~ Remedies Act, 31 U.S.C.

S 3801 et seo. (the "Act"), and NRC regulations implementing the Act, 10 C.F.R. Part 13.

The Act and Part 13 establish administrative procedures for imposing civil penalties and assessments against persons wh make, submit, or present false, fictitious, or fraudulent claims or written statements to authorities (in this case the NRC).

A.

The Program Fraud Civil Remedies Act Under the Act and Part 13, any person who makes a claim' that the person knows or has reason to know is (i) false,

' " Claim" is defined as i

any request, demand, or submission--

(a) Made to the authority for property,

)

services, or money.

i 2

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^

e s

fictitious, or fraudulent; (ii) includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii) includes or is supported by any written statement that omits a material fact,.is false, fictitious, or fraudulent as a result of such omission, and is a statement in which the person making such statement has a duty to include such material; or (iv) is for payment for the provision of property or services which the person has not provided was claimed, shall be subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than

$5,000 for each such claim.

31 U.S.C.

S 3802 (a) (1); 10 C.F.R.

S 13.3 (a) (1).

In addition, if the government has made any payment on a claim, a person subject to a civil penalty under the Act (b) Made to a recipient of property, i

services, or money from the authority or to a party to a. contract with the authority--

(1) For property or services if the United States---

l (i) Provides such property or services; (ii) Provided any portion of the funds for the purchase of such property or services; or (iii) Will reimburse such recipient or party for the purchase of such property or services; or (2) For the payment of money.

if the United States--

(i) Provided any portion of the money requested or demanded; or (ii) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (3) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services, or money.

31 U.S.C.

S 3801(a) (3) ; 10 C.F.R.

S 13.2.

3

shall also be subject to an assassment of not more than twice the q

amount of such claim or that portion thereof that is determined to be in violation of the Act.

31 U.S.C.

S 3802 (a) (1) ; 10 C.F.R.

S 13. 3 (a) (5).

i "Knows or has reason to know" means that a person with respect to a claim or statement, (a)

Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; (b)

Acts in deliberate ignorance of the truth or falsity of the_ claim or statement; or (c)

Acts in reckless disregard of the truth or falsity of the claim or statement, 31 U.S.C.

S 3801(5); 10 C.F.R.

S 13.2.

No proof of specific intent to defraud is required.

31 U.S.C. S 3801(5).

The accompanying House Conference Report to PFCRA 1

elaborates on the knowledge element of such an offense.

This i

standard is " intended to capture those persons who recklessly i

disregard facts which are known or readily discoverable upon reasonable inquiry, while excluding those persons who submit

.i false claims or make false statements through mistake, momentary 1

thoughtlessness, or inadvertence."

H.

Conf. Rep. No. 99-1012, 99th Cong., 2d Sess. 223, 258-9, reprinted in 1986 U.S.

Code Cong. & Ad. News 3868, 3903-04.

Thus, " mere negligence" does not i

meet the standard but "an extreme departure from_ ordinary care" J

does subject an individual to liability.

Id.

1 Each voucher, invoice, claim form, or other individual I

request or demand for property, services, or money constitutes a separate claim.

31 U.S.C.

S 3801(b) (1) ; 10 C.F.R. S 13.3(2).

A 4

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~

claim is considered made when such claim is actually made to an agent, fiscal intermediary, or other entity acting for or on behalf of the authority and is subject to a civil penalty regardless of whether sLch property, services, or money is actually delivered.

31 U.S.C.

S 3801(b) (2) & (3) ; 10 C.F.R.

S

13. 3 (3 ) ( & (4 ).

The twenty-three count complaint in this cr.se alleges that the Defendant, Lloyd P.

Zerr, submitted false travel and overtime claims to the Nuclear Regulatory Commission ("NRC" or

" Commission"'

.n order to obtain monies to which he was not entitled, in violation of the Act.

The Defendant, Lloyd P.

Zerr, is an individual previously employed as a Technica' Intern in the NRC's Office of Nuclear Reactor Regulation (NRR) at the NRC Headquarters, 10555 I

Rockville Pike, Rockville, MD 20852.

Defendant was employed by the NRC from August 23, 1987, until his resignation on February 7,

1992.

During the relevant period of this complaint (August 29, 1989 through September 30, 1990), Defendant served the NRC as a Technical Intern on a rotational assignment to the NRC Region II office, Atlanta, GA (" Region II").

That rotation included an assignment from April 1, 1990 through September 30, 1990, as a Resident Inspector Intern at the Hatch Nuclear Power Plant (" Hatch"), Baxley, GA.

As set forth below, the NRC has met its burden of proving by a preponderance of the evidence that the Defendant 5

s submitted twenty-three false claims to the NRC and the factors D

- set forth in 10 C.F.R.

S 13.31 mandate the imposition of a double assessment and penalties at or near the maximum as provided for in the Act.

II.

GENERAL FINDINGS FOR OVERTIME CLAIMS 0-1.

Counts I, II, and III of the NRC's complaint against Lloyd Zerr concern his submission of large claims for overtime while assigned to Hatch in Pay Periods 7, 8 and 9 in 1990, img.,

approximately 25 hours2.893519e-4 days 0.00694 hours 4.133598e-5 weeks 9.5125e-6 months per week from April 8 through May 19, 1990.

O-2.

As explained in more detail below, the evidence on the issue of whether Mr. Zerr worked the claimed hours principally includes: (1) a computerized recorded history of his entry to and egress from the protected area of the Hatch plant in which the plant's vital operations were conducted, Mr. Zerr's office was located, and where the vast majority of Mr. Zerr's work was conducted; (2) Mr. Zerr's repeated failure to identify i

activities that would explain discrepancies between his claimed-hours and record of access to the protected area when he was confronted by his supervisors with these discrepancies shortly after his submission of the overtime claims, as well as when he had an opportunity to present such testimony at the hearing in this case; (3) testimony of other resident inspectors concerning specific days in which Mr. Zerr's claimed hours did not conform to their observations of his presence at the plant; and (4) 6

4 4

testimony:of other resident inspectors concerning the location and timing of typical activities relating to an inspector's work at Hatch, and the location of materials of use for inspection and inspector qualification.

O-3.

The Defendant's rotation as an NRR intern included an assignment from April 1,

1990 through September 30, 1990, to the Hatch Nuclear Power Plant-(" Hatch"), Baxley, GA, where he was to I

become more familiar with NRC inspection of nuclear power plant

?

operations and work further on his effort to qualify as an NRC resident inspector.

Tr. 680-82 (Brockman).

While it was not a requirement of the intern program that Mr. Zerr qualify as a resident inspector, Tr. 683 (Brockman); Tr. 843 (Merschoff), near the end of his rotation in Region II, he was examined by an oral qualification board and failed to pass the examination.

Tr.

(Herdt); Tr. 850-51 (Merschoff).

O-4.

At Hatch, Mr. Zerr had increased independence in his hours of work and supervision.

Tr. 324-25,.327 (Menning); Tr.

l 289-90 (Musser); Tr. 712-13 (Brockman).

Mr. Ken Brockman, Section Chief in the Division of Reactor Projects, Region II, had advised Mr. Zerr that he was authorized to work overtime in order to pursue the qualifications for becoming a resident-inspector, i

Tr. 682 (Brockman).

Mr. Zerr was also placed on a first-forty-work schedule, which permitted him to work forty hours per week without a set daily schedule, and to earn overtime hours each week for work hours after the first forty hours worked in a given-week.

Tr. 237 (Musser);

Tr. 614 (Herdt).

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i 0-5.

As evidence of the actual hours that Defendant worked at Hatch during the relevant pay periods, the NRC submitted the printout of the computerized record of Mr. Zerr's entries and i

exits from the protected area at the Hatch plant.

NRC Ex. 52.

Most of the important operational functions of the Hatch nuclear power plant are performed in the protected area. Tr. 207-08 (Edge).

When one enters this area of the plant, one must retrieve his or her security card from a security guard and l

insert the card into a card reader system which records the persons's entry into the protected area.

Tr. 209-216.

When one exits the protected area, one must again insert the security card i

into the card reader system.

A security guard then takes the card and inserts it into another card reader and retains the card until the next time that the person wishes to gain entry into the protected area.

Id.

O-6.

Mr. David Edge, who was Georgia Power Company's nuclear security manager at the Hatch plant during the relevant period, testified to the reliability of the computerized records of Mr. Zerr's entry and exit during the relevant period.

To his knowledge, the system never falsely recorded an entry or exit from the protected area, Tr. 217-18, and was fail-safe.

Tr.

211-12.

When the system was down, the individual could not enter without a manual sign-in.

Tr. 211-12, 218 (Edge); Ex. 68.

0-7.

The computerized history of Mr. Zerr's activities was shown by his badge number, 2025; his entries were shown by the i

record of entry through an entry turnstile reader, under one of I

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i

l i

the 4 readers.for entry, 305, 306, 307, 308, Tr. 214 (Edge), and his exits through card reader zone 312.

Tr. 216, 226 (Edge); NRC i

Ex.

2.

Entries for Zone 311 reflect the time that the security i

officer subsequently punches out the badge.

Tr. 216, 226 (Edge);

Tr. 585-88 (Herdt); see cenerally NRC Ex.

2.

O-8.

The + estimony of NRC resident inspectors regarding the. nature, location and timing of work at Hatch indicates that it is highly unlikely that Mr. Zerr would have spent any significant amount of time outside the protected area before his first entry in the morning or his last exit in the evening.

Mr.-

Zerr's first entries and last exits during weekdays betray a pattern of arrival in the morning and departure in the evening that conforms to, or at times extends beyond, the routine work schedule of the other resident inspectors and of the Hatch plant professional outside the protected area (with the exception of an early last exit by Mr. Zerr on a number of Fridays).

See NRC Ex.

2; see also nn. 9-14, infra.

The resident inspectors who were working at Hatch while Mr..Zerr was there testified that their basic workday was 7:15 to 4:00.

Tr. 307 (Menning); Tr. 237 (Musser).

Their normal routine was to proceed from the parking space to the security entrance to the protected area and then l

enter the protected area.

Tr. 245 (Musser); Tr. 309 (Menning).

Mr. Leonard Wert testified that he couldn't " envision a scenario in which he wouldn't go to that trailer first thing at the i

beginning of the day and at the end of the day you go that j

i t:Ailer and then badge out of the protected area."

Tr. 343.

The 9

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workday of plant professional staff in the simulator building outside the protected area was approximately 7:30 a.m.

to 4:00 p.m.

Tr. 243 (Musser); Tr. 313 (Menning); Tr. 349-50 (Wert).

Thus, the typical meeting or trip to the simulator building outside the protected area was between 9:00 a.m. and 3:00 p.m.

Tr. 313 (Menning); Tr. 348 (Wert); see also Tr. 248 (Musser).

O-9.

Moreover, nearly all work of an inspector at Hatch was performed inside the protected area.

Tr. 232, 248, 270 (Musser); Tr. 312 (Menning; Tr. 347-348, 351-52 (Wert.)

The typical day began with the pick-up of licensee reports inside the protected area and a meeting in the resident inspector's trailer between the inspectors and a representative of Hatch management.

Tr. 252-254 (Musser).

During an outage (which was in effect for one of the two units of the plant during these pay periods),2 the amount of time inside the protected area increased, if it changed at all.

Tr. 348-349 (Wert).

O-10.

Mr. Zerr's office was located in the protected area.

Tr. 309 (Menning).

The materials that were used for inspection activities were obtained invariably in either the Resident's Inspector trailer or document control.

Tr. 263-268 (Musser).

While some copies of some materials would also have been available in the simulator building, it would have been more difficult to obtain them, Tr. 346 (Wert).

In addition, the up-to-date official copies of plant systems documents were kept in the Document Control center within the protected area.

Tr. 346 2

NRC Ex. 55 at 1889.

10 I

(Wert); Tr. 266-68 (Musser).

These and most other materials that would have been useful to Mr. Zerr's study for qualification as resident inspector were located in the same areas, 1 g.,

inside 2

the protected area.

Tr. 265 (Musser); Tr. 345-46 (Wert).

In fact, Mr. Zerr kept his standard materials, like his training and qualifications books, in his office in the Resident Inspector trailer.

Tr. 261 (Musser);

Tr. 311 (Menning) Tr. 345 (Wert).

0-11.

The NRC submitted evidence showing that Mr. Zerr began a deliberate pattern of knowingly submitting false overtime claims shortly after his arrival at Hatch.

For_the two week period in Pay Period 9 (April 8 - April 21, 1990), Mr. Zerr claimed 128 hours0.00148 days 0.0356 hours 2.116402e-4 weeks 4.8704e-5 months of work, i.e.,

80 hours9.259259e-4 days 0.0222 hours 1.322751e-4 weeks 3.044e-5 months of regular work and 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months of overtime.

NRC Ex.

1.

For the two week period in Pay Period 10 (April 22 - May 5), Mr. Zerr claimed 80 hours9.259259e-4 days 0.0222 hours 1.322751e-4 weeks 3.044e-5 months of regular work and 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months of overtime.

NRC Ex.

4.

For example, his claims that he worked 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on Sunday, April 15, 1990, and 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on Sunday, April 22, 1990 (NRC Ex. 1 at 30); NRC Ex. 4 at 827), were shown to be false by the fact that_on neither day did Mr. Zerr enter the protected area of the Hatch plant (NRC Ex.

2 at 334, 339) and by the Defendant's own admission that'he not gone to the plant to work without entering the protected area.

Tr. 699 (Brockman); NRC Ex. 52 at 19s; see algo Tr. 468 (Zerr).

In addition, John Menning, who worked 4 hours4.62963e-5 days 0.00111 hours 6.613757e-6 weeks 1.522e-6 months at the Hatch plant on Easter Sunday, April 15, 1990, did not see Mr. Zerr at the plant and testified that Mr. Zerr's car had not been in the parking spaces for NRC inspectors.

Tr. 315.

These spaces are 11

4

'l readily visible from the NRC inspector's office.

Tr. 240 (Musser).

O-12.

Pay for regular and overtime hours claimed by Mr.

Zerr during these pay periods was approved by Region II management because Mr. Zerr had indicated that he had worked these hours, and therefore to the best of.their knowledge, the hours were worked. Tr. 684-686, 714 (Brockman); see also Tr. 572 (Herdt).

However, after the submission of the claim for 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months of overtime in Pay Period 9, Mr. Brockman expressed to the Defendant by telephone his concern that the Defendant would burn out from such a heavy workload.

Tr. 687-68.

Mr. Zerr told Mr.

Brockman that he was working such long hours but would ensure that he didn't burn out.

Tr. 688.

O-13.

After the submission of a claim for over 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months of overtime for Pay Period 10, ending May 5, 1990, Mr.'Brockman again discussed the amount of hours with Mr. Zerr, who stated that he was basically working 12-hour days during the week, beginning around 6 or 6:30 in the morning and coming in on the weekends to observe backshift operations.

Tr. 690; NRC Ex. 52 at 17s.

While the protected area access records for the Defendant indicate that he worked some hours on Sundays beginning on April 29, 1990, NRC Ex. 2 at 348, 355, 362, this does not explain.the absence of any time in the protected area where backshift operations could have been observed on April 15 and 22.

It was undisputed that observation of backshift operations requires activities in the protected area.

Tr. 239-40 (Musser) ; Tr. 318 (Menning).

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O-14.

The NRC submitted evidence indicating that Mr. Zerr continued to claim hours worked in excess of his time.at the plant until the day before May 18, 1990, that his supervisors obtained the computerized record of his protected area access and asked him for an explanation of the discrepa.ny between that record and his hours claimed.

See PFF 15-17, below.

For instance, on Friday, May 18, 1990, the Defendant claimed 8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months of work, all of which would count as overtime because he had already claimed more than 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months of work for the week.

NRC Ex.

6 at 305; Tr. 255 (Musser).

Randy Musser, NRC resident inspector at the site, did not see Mr. Zerr's car when he arrived between 7 and 8 in the morning, observed Mr. Zerr arriving after he had arrived, and then observed, along with Mr. Leonard Wert (a visiting NRC resident inspector), that Mr. Zerr's car was gone between 12:30 and 1:00 in the afternoon.

Tr. 254-258, 279 (Musser); Tr. 341 (Wert).

The protected area security records show that Mr. Zerr entered the protected area at 7:32 in the-morning and left the protected area at 12:55 in the afternoon.

NRC Ex. 2 at 367; Tr. 257 (Musser).

0-15.

Mr. Wert, an NRC resident inspector visiting the site (who was scheduled to become the Senior Resident within a few months) shared with Mr. Brockman his concern that the Defendant may not have been working.the hours that he was claiming.

Mr.

Brockman then obtained the printout of the Defendant's access to r

the protected area.

Tr. 692 (Brockman); NRC Ex. 52 at 17s-18s.-

13

O-16.

Mr. Brockman's supervisor, Alan Herdt, Branch Chief, Division of Reactor Projects, Region II, prepared a chart comparing the printout to the Defendant's time submissions and discovered very largo discrepancies between the logged time and.

the time claimed. Tr. 693-94 (Brockman); Tr. 578-80, 586 (Herdt);

NRC Ex. 71.

O-17.

The Defendant was summoned to a meeting in the Region II office in Atlanta on May 30, 1990, at which Messrs. Brockman and Herdt asked the Defendant to explain the discrepancies j

between the print out and his claimed time.

Tr. 694-695 (Brockman).

He was asked generally what types of activities %.c could have been performing and specifically whether he could recall people he had been talking to on individual projects.

Tr.

697 (Brockman).3 He was specifically asked what activities he could have been performing on the days that he would have been on site and claimed time, but not been in the protected area. Tr.

587-88 (Herdt), 695 (Brockman).

O-18.

Mr. Zerr could not provide any direct refutation to the licensee's printouts or any particular explanation for the significant discrepancies, even though this meeting was less than two weeks after the last of the three consecutive pay periods in question. Tr. 587-588 (Herdt) ; Tr. 695-96, 698, 702 (Brockman);

NRC Ex. 52 at 18s.

Mr. Brockman had hypothesized that Mr. Zerr's work regarding licensee reporting could have necessitated an

[

8 Large discrepancies on Fridays were also of concern to Mr. Brockman and a subject of the questioning of Mr. Zerr.

Tr.

at 740 (Brockman); Tr. at 588 (Herdt).

14

above-average amount of time outside the protect'ed area, Tr. 697-98; NRC Ex. 52 at 16s,' but the Defendant could not describe any specific instances of activity which would explain why he had claimed such large amounts of time that were not supported by the printouts.

Tr. 698 (Brockman).

O-19.

During the discussion, the Defendant did say that he i

had been including the daily commuting time between his house and the Hatch plant as hours worked, as well as the lunch periods when work was discussed.5 NRC Ex. 52 at 18s; Tr. 587 (Herdt).

O-20.

At the meeting on May 30, 1990, the Defendant was also asked to go back and examine his records and reflect on what activities could explain the large discrepancies between the y

reported and claimed hours of work.

Tr. 698-99 (Brockman); Tr.

589 (Herdt).

Mr. Zerr was asked to provide any such explanations to Mr. Brockman the following week.

Tr. 699 (Brockman).

In their telephone conversation the following week, Mr. Zerr still had no explanation for these discrepancies and admitted that he Mr. Brockman also hypothesized that "probably all of it could have been done in the resident's office" although it was not necessary to work on the project only in that location.

Tr.

734.

In fact, Mr. Brockman remembered specifically a meeting at the Hatch plant regarding the issue which was held in the offices of the resident inspectors in the protected area.

Tr. 734.-

5 He also said that he could have been working outside the protected area on some of the days with large discrepancies i

between recorded times in the protected area and his claimed hours.

Tr. 588 (Herdt).

However, he did not identify any specific activities in the simulator building or any other area outside the protected area that would explain the large discrepancies, either at that meeting (id. at 587-89) or, as noted infra, the following week after an opportunity to reflect and review any records of his activities.

15 i

I

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i could remember no days when he had gone to the site and not entered the protected area.

Tr. 699; NRC Ex. 52 at 19s.

i 0-21.

Mr. Brockman concluded that Mr. Zerr could not provide any satisfactory explanation for large portions of his overtime claims.

Mr. Brockman testified:

Lloyd could provide no information whatsoever.

It wasn't a question that there was only parts of it covered.

Except for the aspect of the lunch hour and the travel time, he could come up with no information whatsoever as to l

activities that could cover many large blocks of time.

Tr. 702.

Shortly thereafter, Region II management referred the allegations of false overtime claims to the Office of the Inspector General for investigation.

Tr.

748 (Fields).

O-22.

At trial, the defendant did not offer any particular or persuasive explanation regarding the evidence of the falsity of his overtime claims.

He testified that he had performed resident inspector. intern duties outside the protected area at Hatch.

Tr. 500.

He also testified that there were a lot of contractors outside the protected area,6 as well as the engineering and licensing departments, and that the Hatch plant training was done outside of the protected area.

Id.

However, 6

Mr. Randy Musser, who was Resident Inspector at Hatch from July, 1987 until October, 1992, testified that he did not recall. contractor trailers or facilities outside the protected area or visiting contractors outside the protected area.

Tr.

230, 270.

Mr. John Menning, who was Senior Resident at Hatch until April 20, testified that he'did not. recall offices or facilities of contract personnel outside the protected area and that contract employees at the plant during an outage were primarily craft personnel.

Tr. 314-15.

16 5

v,

=

6,

he did not present any clear testimony as to what, if any, tasks he actually performed outside the protected area.7 O-23.

The NRC does not dispute that Defendant may have performed some work outside the protected area, such as work on the licensee reporting issue referenced by Mr. Brockman.

The NRC's own evidence shows that Mr. Zerr did exit the protected area at times on many days during the relevant pay periods.

See, e.c.,

NRC Ex. 2 at 335, 337, 339, 342, 344.

The NRC gives the Defendant full credit as hours worked all time between the firstL entry into the protected area and his last departure.

See Specific Findings for Overtime Counts, infra.

O-24.

The Defendant appears to seek a finding that at worse none of his false claims involve anything more than mistakes.

Tr. 935.

The overwhelming weight of the evidence, however, supports a finding that the Defendant submitted claims that he knew were not true, i.e.,

that he had not worked the hours claimed.

For instance, simple negligence does not_ explain the 7 While the Defendant presented essentially no information to contradict the evidence of the falsity of overtime claims, his attorney suggested in his questioning of witnesses that the Defendant may have been observing Hatch plant training in the Simulator Building outside the protected area.

Ege, e g.,

Tr.

2 321-22.

Apart from the telling failure of Mr. Zerr to testify at trial that he had engaged in such_ activity at all, let alone for significant periods of time without entering the protected area or before entering or after exiting the protected area for the day, he also failed to offer-any such explanation to his supervisors in 1990 when they asked him for such explanations.

Tr._735-36 (Brockman).

Moreover, Mr. David' Edge, Security Specialist _for Georgia Power at Hatch at the time, testified that the Hatch plant records for use of the simulator in the Simulator building indicated that the only Saturdays or Sundays in April and May, 1990, on which the simulator was operating were April 29 and May 6.

Tr. at 219 (Edge).

These are not days in question.

17

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i I

fact that Defendant submitted claims for large amounts of overtime on Sundays when the evidence is that he did not even go to the plant and the Defendant could not explain to his superiors shortly thereafter what he might have done at Hatch oa tnose days.

Indeed, the defendant's claim of a full day's work on two Sundays when he did not go to the plant indicates a deliberate effort to cheat the government on days when the chances of success were great without witnesses to refute his claims.

O-25.

It is noteworthy that Defendant was submitting requests is*

approval of overtime that betray a clear and specific grasp that his first forty hours of work each week were regular pay hours, and the hours worked after the first forty were overtime hours.

NRC Ex.

1, 4 and 6.

Moreover, the Defendant was well educated, possessing bachelor of science degrees in both nuclear engineering and management, zus well as an i

MBA.

Tr. 500 (L. Zerr).

He was not a new employee when he was i

assigned to Hatch, having earlier worked at NRC Headquarters and t

on rotation in Atlanta.

0-26.

Ellis Merschoff, Deputy Director, Division of Reactor Safety (at the time relevant to this complaint) " served as Lloyd Zerr's coordinator for his tour in Region II to assure that his e

various assignments all contributed towards the end goal of providing him with an opportunity to become certified as an inspector."

Tr. 834 (Merschoff).

When questioned by counsel fo.

Mr. Zerr as to whether he reviewed with Zerr the requirements for time-record keeping, Mr. Merschoff responded that although he 18 l

l

+ -,

~

T remembered no such specific conversation, he would be surprised i

- if he had not.

Tr.- 837 (Merschoff).

Mr. Merschoff explained l

that when he meets with a new employee, as he did with Mr. Zerr,-

he discusses with that employee what Mr. Herschoff called the l

"three T's",

time and attendance, travel, and telephone, and that i

employees "should never veer far from the path on those three T's" because these are the areas that can get employees fired very easily.

Id.

Mr. Brockman had also emphasized the "three t's" to the Defendant over a week before the end of Pay Period.

11.

NRC Ex. 52 at 17s (regarding trip to Hatch on 5/9-5/10).

Yet, the Defendant persisted in submitting false claims, including for example the claim for 8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months on May 18.

NRC Ex.

6; see also Tr. 701 (Brockman).

O-27.

Moreover, the fact that he was engaged -- before, during and after these pay periods -- in a continuous pattern of i

submission of false travel voucher claims to the NRC (see General-and Specific Findings for Travel Counts, infra) also strongly supports the tinding that Mr. Zerr knew that he was submitting falso claims.

0-28.

In light of all of the evidence regarding the overtime submissions at issue, Mr. Zerr's statement to-his supervisors that he had included his lunch periods and commuting i

time as hours worked, Tr. 696 (Brockman), appear at best to be-I post-hoc rationalizations that fall far short of overcoming the i

evidence of the pattern of overtime fraud.

First, he did not even testify at trial that his lunches had been working lunches 19

m L

or that he included commuting time in his hours of work.

Second, such periods of time have no bearing at all on the days that Mr.

Zerr did not go to the site, but nonetheless claimed overtime.

Third, even if Mr. Zerr is credited with 45 minutes for_ lunch on i

a normal day and is also credited with I hour for commuting time-(1/2 hour each way), Tr. 271 (Musser); Tr.'318 (Menning), these I

credits do not begin to resolve the repeated discrepancies of approximately 3 or more hours between his claimed hours and the t

times of his first entry and last exit from the protected area.

i See e.a.,

nn. 10-15, infra, regarding the difference between the hours claimed and the recorded hours of work on April 9, 11, 12, 13, 16, 17, 18, 20, 27, 29, and May 11 and 13).

Thus, even i

?

assuming arcuendo Mr. Zerr was including such time in his claims for hours worked, enormous discrepancies between the recorded i

hours of work and the claimed hours of work remain.

O-29.

At least equally fatal to these attempts at partial i

explanation, is the lack of any colorable basis.for finding that the Defendant was working at lunch or while travelling to or from the plant.8 The testiuony of Messrs. Menning and Musser established that Mr. Zerr ate lunch with them and these were not t

This is a factual question that should not require any showing of law or regulation.

However, NRC regulations make clear that duty hours for payment concern hours of work. In i

particular, they provided, for example, that "[e]mployees with a first-40-hour workweek... who are-either engaged in professional or technical engineering or scientific activities, or~are paid a basic rate exceeding the minimum rate of GG-10 may be paid overtime only for work in excess of 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months in an administrative workweek."

NRC Manual Chapter 4136, Hours of Work and Premium

]

Pay, Sec. 4136-059d. NRC Ex. 70 at 1825 (emphasis added).

Mr.

Zerr was a Grade 12, Step 4.

NRC Ex.

3, Ex.

5, Ex.

7.

20 I

t generally' working _ lunches or lunches interrupted by work.

Tr.

262-63, 290 (Musser); Tr' 315-16, 318 (Menning).

O-30.

Since the evidence strongly supports the finding that Mr. Zerr was knowingly and falsely claiming to have worked during the lunch pariod, his liability as to those periods of time does s

not turn on whether or not he believed that working lunches could be claimed as duty hours.

Nonetheless, his alleged personal view is not credible since it was completely contrary to the understanding and practice of the resident inspectcrs at the site, Tr. 307 (J. Menning); Tr. 237-38 (R. Musser), with whom he ate lunch, as well as others who testified, Tr. 645, 661 (Herdt).

O-31.

On the question of inclusion of commuting time as overtime, Mr. Zerr again made such claims with the actual knowledge that he was not working or at best with reckless disregard of whether non-working commute time could be deemed work hours.

See NRC Ex. 70 at 1837 (backside); Tr. 795-96 ( of C.

Miller) ; Tr.

707-708 (Brockman); Tr. 645 (Herdt).

As provided in NRC Manual Chapter Appendix 4136, Part VIII (Hours of

?

Work and Premium Pay Handbook), exempt employees,' as well as non-exempt employees travelling within regularly assigned duty hours, were permitted to claim time in travel status as hours of Mr. Zerr was an exempt employee.

Although he testified at trial that he thought is was in Grade 9 when he was on his rotation in Region II, his earnings and leave statements make clear that he was Grade 12, Step 4, at the time of his false overtime claims, NRC Ex.

3, 5 and 7, and NRC "[e]mployees whose positions'are classified at GG-11 or above are exempt unless OPM grant an exception for a specific occupation to be designated nonexempt."

NRC Ex. 70 at 1834 (backside).

P 21

-i employment only those hours "actually spent traveling between the' official duty station and the point of destination or between_two temporary duty points, and (2) for usual waiting time which interrupts such travel NRC Ex. 70 at 1837.

Clearly, Mr.

Zerr was not traveling from an official duty station to a point of destination for duty work or between two temporary duty stations when he commuted between his temporary lodging and the plant site.

Thus, as explained by Carolyn Miller, Chief of the NRC's Travel Branch, an employee who commences travel by leaving his home to a hotel where he is going to stay for business for several days can be reimbursed as hours of work for the time to travel from his home to that point of destination, but cannot claim as hours of work the travel from his hotel to work each s

day.

Tr. 795-796.

l O-32.

In summary, the overwhelming weight of the evidence regarding the Defendant's overtime submissions leads to the conclusion that the Defendant's actua

.ours of work were those hours between the Defendant's first entry into the protected area and his last exist each day, less 45 minutes for lunch on a normal workday, and that he knew or should have known that his overtime submissions for Pay Periods 9, 10 and 11, were false, as described in more detail below.

III.

SPECIFIC FINDINGS FOR OVERTIME COUNTS I-1.

For Pay Period 9, covering April 8 through April 21, 1990, the Defendant submitted to the NRC Region II Office NRC 22

Form 145 (Request and Authorization for Irregular or Occasional Overtime or Compensatory Time), dated April 20, 1990, claiming compensation for 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months of overtime, with an explanation as

" QUALIFYING / INSPECTING."

NRC Ex. 1 at 30;_NRC Ex. 50 (NRC

" Request to Defendant for Admission of Facts and Genuineness of Documents") at 1 (I-1.) and NRC Ex. 51 at 3 (Response to Request for Admissions ("RRA") No. 1); NRC Ex. 50 at 4 (II-1) and NRC Ex.

51 at 5 (Further Answers ("FA") No. 1) ; Tr. 683, 687 (Brockman).

I-2.

The Defendant phoned this information on his_ overtime to Region II on April 19, 1990.

NRC Ex. 1 at 030; NRC Ex. 50 at 4 (II-3) and NRC Ex. 51 at 5 (FA No. 3).

With the Defendant's authorization, his section chief signed Defendant's name below the certification statement on Defendant's Form 145 for Pay.

Period 9.

NRC Ex. 1 at 030; NRC Ex. 50 at 4 (II-4) and NRC Ex.

51 at 5 (FA No. 4).

I-3.

The Defendant was paid for 80 regular hours of work plus 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months overtime for Pay Period 9.

NRC Ex. 3 at 40; NRC Ex. 50 at 2 (I-5) and NRC Ex. 51 at 3 (RRA No. 5 (I-5); NRC Ex.

50 at p. 4 ~(II-5) and NRC Ex. 51 at 5 (FA No. 5).

The NRC paid the Defendant $938.88 for the 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months of claimed overtime. NRC Ex. 3 ($938.88 divided by 48 equals $19.56, i e.,

the hourly rate a

1 at which the Defendant was paid for overtime).

I-4.

The evidence indicates, however, that the Defendant did not work any overtime during Fay Pp"iod 9, the entire claim for payment of 48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months of overtime worked was false,_and the Defendant knew or should have known that his claim was false.

23

I l

I-5.

For the first week of Pay Period 9, Mr. Zerr's time and attendance card form indicated 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months of work on Monday-(4/9), Tuesday (4/10), Wednesday (4/11), Thursday (4/12) and Friday (4/13),

i.e.,

a total of 60 hours6.944444e-4 days 0.0167 hours 9.920635e-5 weeks 2.283e-5 months , constituting a first 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months of regular work and 20 tours of overtime (8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months on 4/12 and 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months on 4/13).

NRC Ex. 1 at 31; see also NRC Ex. 43 at 1234 (1990 Pay Period Schedule).

I-6.

According to the Hatch printout of Mr. Zerr's access to the protected area, Mr. Zerr first entered the protected area where his office was located, (Tr. 201 (Musser); (Tr. 311 (Menning), between 7:39 a.m.

and 8:03 a.m.

each day from Monday.

through Friday in the first week of Pay Period 9 and last exited the protected area between 4:19 p.m. and 4:46 p.m. with the exception of. Friday, when his last exit was at 3:18 p.m.

NRC Ex.

2 at 328-332.

t I-7.

These hours correspond generally to the normal number and time of work hours of other resident inspectors who were at Hatch, see Tr. 307 (Menning) and 237 (Musser), as well as the regular work schedule of the Hatch plant professional personnel l

who worked in the Simulator building outside the protected area.

i Tr. 243 (Musser), 313 (Menning),'349-50 (Wert).

I-8.

The total of the hours from the Defendant's first daily entry into the protected area and last daily exit from the protected area during the first week of Pay Period 9 is 43 hours4.976852e-4 days 0.0119 hours 7.109788e-5 weeks 1.63615e-5 months and 8 minutes, and after deduction of a 45 minute lunch period 24 b

y,

each day indicates 39 hours4.513889e-4 days 0.0108 hours 6.448413e-5 weeks 1.48395e-5 months and 23 minutes of work, 20.5 hours5.787037e-5 days 0.00139 hours 8.267196e-6 weeks 1.9025e-6 months less than the 60 claimed (60-39.5).*

I-9.

For the second week of Pay Period 9, the Defendant's time and attendance form indicated that he had worked 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on j

Sunday, April 15, 1993, 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months each day from Monday through Thursday, and 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on Friday, April 20th.

NRC Ex. 1 at 31.

I-10.

Even though Mr. Zerr claimed 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months of overtime.

]

for work on Sunday, Apri) 15, 1990, he never entered the Hatch protected area or went to his office that day.

Ex. 2 at 334.

I-11.

John Menning, the NRC's Senior Resident Inspector at Hatch from Mr. Zerr's arrival until April 20, 1990, was at the plant for approximately one-half day on Sunday, April 15, and saw I

neither Mr. Zerr nor his car at the plant.

Tr. 315 ( Menning).

I-12.

As compared to the 68 hours7.87037e-4 days 0.0189 hours 1.124339e-4 weeks 2.5874e-5 months claimed, the i

computerized record of the Defendant's protected area access shows 43 hours4.976852e-4 days 0.0119 hours 7.109788e-5 weeks 1.63615e-5 months and 5 minutes as the total time between the first I

entry and the last exit during the days of the second week of Pay Period 9, and after deducting 45 minutes for lunch each day, A comparison of the recorded times betweers first entry and last exit (as shown in Exhibit 2 at 328-332) to the hours that Defendant claimed (Exhibit 1) shows:

DATE FIRST ENT./LAST EXIT SPAN LESS LUNCH CLAIMED 4/9 -(Mon.)

7:39 a.m.-4:46 p.m 9:07 8:22 12 hrs.

4/10 (Tue.)

7:25 a.m.-4:58 p.m.

9:33 8:48 12 hrs.

4/11 (Wed.)

7:56 a.m.-4:21 p.m.

8:48 8:03 12 hrs.

4/12 (Thur.) 7:56 a.m.-4:21 p.m.

8:25 7:40 12 hrs.

4/13 (Fri.)

8:03 a.m.-3:18 p.m.

7:14 6:30

~12 hrs.

TOTAL 43:08 39:23 60 hrs.

25 i

t

indicates that Mr. Zerr worked a total of 38 hours4.398148e-4 days 0.0106 hours 6.283069e-5 weeks 1.4459e-5 months and 20 minutes."

I-13.

In sum, Mr. Zerr's claim that he. worked.48 hours5.555556e-4 days 0.0133 hours 7.936508e-5 weeks 1.8264e-5 months of overtime during Pay Period 9, 12g., 80 hours9.259259e-4 days 0.0222 hours 1.322751e-4 weeks 3.044e-5 months of regular time plus 20 overtime hours in the first week and 28 overtime hours in the second week) is not substantiated by the computer records of his I

access to the Hatch protected area where his office was located.

According to the Hatch plant records of Mr. Zerr's entries and exits from the protected area, the Defendant only worked 77.75 hours8.680556e-4 days 0.0208 hours 1.240079e-4 weeks 2.85375e-5 months plant during Pay Period 9 (39 hours4.513889e-4 days 0.0108 hours 6.448413e-5 weeks 1.48395e-5 months and 23 minutes in the first week, plus 38 hours4.398148e-4 days 0.0106 hours 6.283069e-5 weeks 1.4459e-5 months and 20 minutes in the second week).

I-14.

Due to the Defendant's false claim, the NRC paid him

$938.88 for overtime in Pay Period 9 to which he was not entitled.

COUNT II II-1.

For Pay Period 10, covering April 22 through May 5, 1990, the Defendant signed and submitted to the NRC Region II office NRC Form 145, dated May 5, 1990, claiming compensation for A comparison of the recorded times between first entry and last exit (as shown in Exhibit 2 at 334-39) to the days and hours of work claimed (Exhibit 1) shows:

pATE FIRST ENT./LAST EXIT SPAN LESS LUNCH CLAIMED 4/15 (Sun.)

NONE 10 I

4/16 (Mon.)

7:26 a.m. - 4:02 p.m.

8:36 7:51 12 4/17 (Tue.)

7:15 a.m. - 3:54 p.m.

8:39 7:54 12 4/18 (Wed.)

7:52 a.m. - 4:12 p.m.

8:20-7:35 12 4/19 (Thur.) 7:43 a.m. - 5:41 p.m.

9:58 9:13 12 4/20 (Fri.)

7:31 a.m.

- 2:03 p.m.

6:32 5:47 la TOTAL 42:05 38:20 68 26 i

51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months of overtime.

NBC Ex. 4 at 827; NRC Ex. 50 at 2 (I-5) and NRC Ex. 51 at 3 (RRA No. 5);

NRC Ex. 50 at-5 (II-11) and NRC Ex. 51 at 6 (FA No. 11).

The Defendant signed the certification on the Form 145 that the overtime was necessary and that he worked over 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months of overtime, but he provided no explanation or justification for the overtime claimed.

NRC Ex. 4 at 827);

NRC Ex. 50 at 5 (II-11) and NRC Ex. 51 at 6 (FA No. 11).

II-2.

The NRC paid Defendant for 80 hours9.259259e-4 days 0.0222 hours 1.322751e-4 weeks 3.044e-5 months of regular time and 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months overtime for Pay Period 10.

NRC Ex. 5 at 827; NRC Ex. 50 at 5 (II-13) and NRC Ex. 51 at 6 (FA No. 13).

However, Hatch plant records indicate that Defendant worked only 17.25 hours2.893519e-4 days 0.00694 hours 4.133598e-5 weeks 9.5125e-6 months of overtime for Pay Period 10.

17-3.

Defendant claimed that he worked 68 hours7.87037e-4 days 0.0189 hours 1.124339e-4 weeks 2.5874e-5 months during the-first week of pay period 10, thus entitling him to 28 hours3.240741e-4 days 0.00778 hours 4.62963e-5 weeks 1.0654e-5 months of overtime pay for the first week of pay period 10.

NRC Ex.

4..

In particular, the Defendant claimed that he worked 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on Sunday, April 22, 1990, even though he never entered the-protected area (NRC Ex. 2 at 341), 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months daily from Monday through Thursday, and 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months on Friday, April 27.

NRC Ex. 4.

II-4.

The history of Mr. Zorr's access to the protected area indicates that the total time between his first entry and last exit each day during the first week of Pay Period 10 was only 49 hours5.671296e-4 days 0.0136 hours 8.101852e-5 weeks 1.86445e-5 months and 49 minutes.

NRC Ex. 2 at 341-347.

After deducting 45 minutes for lunch for the five days that he was inside the protected area, the history indicates that he worked only 46 hours5.324074e-4 days 0.0128 hours 7.60582e-5 weeks 1.7503e-5 months and 49 minutes the first week of pay period 10, 27

m 4

l 1.e., 6 hours6.944444e-5 days 0.00167 hours 9.920635e-6 weeks 2.283e-6 months and 49 minutes of overtime."

The difference between the 28 hours3.240741e-4 days 0.00778 hours 4.62963e-5 weeks 1.0654e-5 months claimed and 6.75 of' substantiated overtime is 21.25 hours2.893519e-4 days 0.00694 hours 4.133598e-5 weeks 9.5125e-6 months .

II-5.

For the second week of Pay Period 10, the Defendant claimed 8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months of work on Sunday, April 29, 1990, 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months each day for Monday through Thursday, and 7 hours8.101852e-5 days 0.00194 hours 1.157407e-5 weeks 2.6635e-6 months for Friday, May 4, 1990, for a total claim of 63 hours7.291667e-4 days 0.0175 hours 1.041667e-4 weeks 2.39715e-5 months of work, including 23 hours2.662037e-4 days 0.00639 hours 3.80291e-5 weeks 8.7515e-6 months of overtime.

NRC Ex 4. The total of the time between the first-daily entry and last exit during this week (April 30 through'May 4,

1990) was 54 hours6.25e-4 days 0.015 hours 8.928571e-5 weeks 2.0547e-5 months and 7 minutes, indicating a total amount of work hours far the week of 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months and 22 minutes, after deducting 3 hourr and 45 minutes for lunch."

The difference 12 A comparison of the recorded times between first entry and last exit (as shown in Exhibit 2 at 341-46) to the hours-that Defendant claimed for those days (Exhibit 4) shows:

DATE FIRST ENT./LAST EXIT SPAN LESS LUNCH CLAIMED 4/22 (Sun.)

NONE 10 4/23 (Mon.)

7:05 a.m.

4:26 p.m.-

9:21 8:36 12 4/24 (Tue.)

6:37 a.m.

6:48 p.m.

12:11 11:26 12 4/25 (Wed.)

6:49 a.m.

6:30 p.m.

11:41 10:56 12 4/26 (Thur.) 6:48 a.m.

5:44 p.m.

10:56 10:11 12 4/27 (Fri.)

6:56 a.m.

- 12:36 p.m.

5:40 12 TOTAL 49:49 46:49 68 A comparison of the recorded times between first entry and last exit (as shown in Exhibit 2 at 348-353) for the days in question to the hours that Defendant claimed for those days-(Exhibits 4) shows:

QATE FIRST ENT./LAST EXIT SPAN LESS LUNCH CLAIMED 4/29 (Sun.)

3:02 p.m. -

5:34 p.m.

2:32 8

4/30 (Mon.)

6:31 a.m.

5:S1 p.m.

11:20 10:35 12 5/1 (Tues.) 6:39 a.m.

5:30 p.m.

10:51 10:06 12 5/2 (Wed.)

6:49 a.m. -

5:50 p.m.

11:01 10:16-12 5/3 (Thur.) 6:43 a.m.

5:28 p.m.

10:45 10:00 12 28 b

i between the 63 hours7.291667e-4 days 0.0175 hours 1.041667e-4 weeks 2.39715e-5 months claimed and the 50.5 of work according to i

the recorded history.is 12.5 hours5.787037e-5 days 0.00139 hours 8.267196e-6 weeks 1.9025e-6 months .

II-6.

The 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months of overtime for which defendant was paid for Pay Period 10 (28 for the first week and 23 for the second week) exceeded the actual hours of overtime by 33.75 hours8.680556e-4 days 0.0208 hours 1.240079e-4 weeks 2.85375e-5 months (21.25 during the first week, and 12.5 during the second week).

II-7.

Due to Defendant's false claim, the NRC paid him

-i

$660.15 for overtime to which he was not entitled (33.75 hours8.680556e-4 days 0.0208 hours 1.240079e-4 weeks 2.85375e-5 months times his hourly pay for overtime of $19.56).

See NRC Ex. 5 (showing payment of $1193.16 for 61 hours7.060185e-4 days 0.0169 hours 1.008598e-4 weeks 2.32105e-5 months of overtime, 129., 51 x

$19.56); (payment for an additional 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months above the 51 claimed for Pay Period 10 is not at issue; it related to payment for 10 hours1.157407e-4 days 0.00278 hours 1.653439e-5 weeks 3.805e-6 months of overtime during Pay Period 8 (gen NRC Ex. 2 at 37).

COUNT III III-1.

For Pay _ Period 11, covering May 6'through May 19, 1990, the Defendant signed and submitted to the Region II Office NRC Form 145, dated May 19, 1990, claiming compensation for 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months of overtime with the explanation as

" Inspection / Qualification."

NRC Ex. 6 at 35; NRC Ex. 50 at 5 (II-17) and NRC Ex. 51 at 6 (FA No. 17).

The Defendant signed the certification on the Form 145 that the overtime was necessary and that he worked the 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months . NRC Ex. 6 at 35; NRC Ex. 50 at 17 (II-18) and NRC Ex. 51 at 6 (FA No. 18).

5/4 (Fri.)

3:56 a.m.

- 11:34 a.m.

7:38 6:53

_1 TOTAL 54:07 50:22 63 29

III-2.

The Defendant was paid for 80 regular hours of work

~

plus 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months ~of overtime for Pay Period 11.

NRC Ex. 7 at 42; NRC Ex. 50 at 5 (II-19) and NRC Ex. 51 at 8 (FA No. 19).

However, the evidence indicates that Defendant worked only 23 overtime hours for Pay Period 11, and thus 27 hours3.125e-4 days 0.0075 hours 4.464286e-5 weeks 1.02735e-5 months of the overtime claim was false.

III-3.

For the first week of Pay Period 11, the Defendant claimed 8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months of work on Sunday, May 6, 1990, 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months each day from Monday through Thursday, and 8 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months again on Friday, May 11, 1990, a total of 64 hours7.407407e-4 days 0.0178 hours 1.058201e-4 weeks 2.4352e-5 months , including 24 hours2.777778e-4 days 0.00667 hours 3.968254e-5 weeks 9.132e-6 months of overtime.

NRC Ex.

6.

The recorded history of his activity in the protected area shows the total time between first entry and last exit during the days of the week was 54 hours6.25e-4 days 0.015 hours 8.928571e-5 weeks 2.0547e-5 months and 17 minutes, and indicated total time werked of 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months and 17 minutes-after deduction of 45 minutes for lunch from Monday through Thursday."

The difference between.the claimed hours and.the substantiated hours of work is 12 and 3/4 hours.

III-4.

For the second week of Pay Period 11, the Defendant claimed 66 hours7.638889e-4 days 0.0183 hours 1.09127e-4 weeks 2.5113e-5 months of work, i.e.,

10 on-Sunday, May 13, 1990, 12 A comparison of the recorded times between first entry and last exit (as shown in Exhibit 2 at 355-360) for the days in question to the hours that Defendant claimed for those days (Exhibit 6) shows:

DATE FIRST ENT /LAST EXIT SPAN LESS LUNCH CLAIMED 5/6 (Sun.)

12:27 p.m.

5:52 p.m.

5:25 8

5/7 (Mon.)

6:03 a.m.

_5:32 p.m.

11:29 10:44 12 5/8 (Tues.)

6:43 a.m.

5:49 p.m.

11:06 10:21 12 5/9 (Wed.)

6:05 a.m.

5:39 p.m.

11:34 10:49 12

5/10 Thur.)

6:30 a.m.

4:34 p.m.

10:04 9:19 12 5/11 (Fri.)

7:02 a.m.

- 11:41 a.m.

4:39

_a TOTAL 54:17 51:17 64 30

from Monday-through Thursday, and 8 on Friday,-May 18th.

NRC Ex.

6.

Hatch access records for the protected area indicate a total time between first entry and last exit each day of that week of-54:37 hours before any deduction for lunch and 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months and 37 minutes, after deduction of 3 hours3.472222e-5 days 8.333333e-4 hours 4.960317e-6 weeks 1.1415e-6 months (45 minutes times 4 regular days (Monday - Thursday)."

The difference between the claimed hours ana the substantiated hours of work is over 14.25 hours2.893519e-4 days 0.00694 hours 4.133598e-5 weeks 9.5125e-6 months (66 hours7.638889e-4 days 0.0183 hours 1.09127e-4 weeks 2.5113e-5 months - 51 hours5.902778e-4 days 0.0142 hours 8.43254e-5 weeks 1.94055e-5 months , 37 minutes = 14 hours1.62037e-4 days 0.00389 hours 2.314815e-5 weeks 5.327e-6 months , 23 minutes).

III-5.

Due to Defendant's overtime claim on the basis of 27 hours3.125e-4 days 0.0075 hours 4.464286e-5 weeks 1.02735e-5 months (12.75 hours8.680556e-4 days 0.0208 hours 1.240079e-4 weeks 2.85375e-5 months in the first week and 14.25 hours2.893519e-4 days 0.00694 hours 4.133598e-5 weeks 9.5125e-6 months in the second week) that the evidence indicates he did not in fact work, the NRC paid him $528.12 for overtime to which he was not entitled (27 hours3.125e-4 days 0.0075 hours 4.464286e-5 weeks 1.02735e-5 months times $19.56, the rate of the Defendant's overtime pay).

See NRC Ex. 7 (payment of $978 for 50 hours5.787037e-4 days 0.0139 hours 8.267196e-5 weeks 1.9025e-5 months of overtime).

A comparison of the recorded times between first entry and last exit (as shown in Exhibit 2 at 362-367) for the days in question to the hours that Defendant claimed for those days (Exhibit 6) shows:

DATE FIRST ENT./LAST EXIT SPAN LESS LUNCH CLAIMED 10 5/13 (Sun.)

2:40 p.m. -

7:09 p.m.

4:29 6:01 p.m.

11:15 10:30 12 5/14 (Mon.)

6:46 a.m.

5/15 (Tue.)

6:55 a.m.

5:44 p.m.

10:49 10:04 12 5/16 (Wed.)

7:03 a.m.

5:50 p.m.

10:47 10:02 12 6:09 p.m.

11:54 11:09 12 5/17 (Thur.)

6:15 a.m.

_a 5/18 (Fri.)

7:32 a.m. - 12:55 p.m.

3:21 TOTAL 54:37 51:37 66 31

i 4

IV.

GENERAL FINDINGS FOR TRAVEL CLAIMS T-1.

This complaint alleges false travel claims in the areas of furniture, car, and house rental, use of a personal vehicle for official government travel, and over claiming and double claiming of Meals & Incidental Expenses ("M&IE").

Defendant admits that he understood the lodging-plus system of authorized travel."

Tr. 404 (Zerr).

Under this system, Defendant was permitted to claim allowable expenses actually incurred for lodging up to a predetermined limit and was entitled to a flat daily subsistence rate called M&IE.

Tr. 403-4 (Zerr);

Tr. 790-92 (Miller), Tr. 542-43 (Corvelli).

A.

Furniture Rental T-2.

Counts IV through XIV include allegations that the Defendant submitted false claims to the NRC for furniture rental.

In connection with Defendant's rental of an apartment in Atlanta and a house in Vidalia, Defendant claimed reimbursement from the NRC for the cost of furniture rented from CORT Furniture Rental

(" Cort").

NRC Exs.

8, 9,

16-23, 25, 30; Tr. 397-98, 402, 408, 417 (Zerr).

i T-3.

On August 26, 1989, Defendant rented furniture from Cort at a monthly rate of $535.83.

NRC Exs. 10, 11, 13, 15; Tr.

7 397-98 (Zerr).

Defendant was to pay Cort by sending them monthly payments along with payment coupons given to Defendant when he rented the furniture.

Tr. 398 (Zerr).

" NRC Ex. 69 at 2192 (NRC Appendix 1501, Part IV, Annex A, section 1-7.5.)

32 f

T-4.

Defendant cancelled his contract with Cort.

Tr. 399-400 (Zerr).

On September.19, 1989, all furniture he had rented from Cort was returned to Cort, NRC Ex. 11 at LS599, and Defendant received a partial refund.

NRC Ex. 14, 15.

Defendant admits that when the Cort furniture was-returned he retained the monthly payment coupons. Tr. 399 (Zerr).

Defendant also admits that after September 19, 1989, he no longer rented any furniture from Cort or any other furniture rental company, Tr. 400 (Zerr),

and that he never inform any NRC official that he no longer rented any furniture from Cort or any other furniture rental company.

Tr. 401 (Zerr).

T-5.

Despite no longer renting furniture from Cort or any other furniture rental company, Defendant claimed for reimbursement from the NRC a monthly furniture rental expense'of

$535.83 in each voucher submitted to the NRC Headquarters between September 28, 1989, and December 25, 1990.

NRC Exs. 9, 16-23, 25, 30 ; Tr. 402 (Zerr).

To support these vouchers, Defendant attached to each voucher a Cort payment coupon (or coupons for multiple month vouchers), each in the amount of $535.83, issued i

to him by Cort when he originally rented furniture from Cort.

Id.

These payment coupons did not contain Cort letterhead.

Accordingly, with his vouchers, Defendant submitted copies of these coupons photocopied on the same page with an original cash receipt containing the Cort letterhead.

Id.

T-6.

The NRC paid all furniture rental claims except those

]

contained in Defendant's last voucher dated December 24, 1991, 33 i

which was not paid due to'the NRC's inquiry into Defendant's claims.

NRC Exs.

9, 16-23, 25, 30 (see sections.29-31 of first page of each voucher); see also Specific Findings for Counts IV through XXIII, infra.

T-7.

Defendant's response to the allegations of false claims for furniture rental contained in Counts IV-through XIV is i

based solely on an alleged phone conversation with someone in the NRC Headquarters travel office.

Tr. 405-6 (Zerr).

Defendant contends that he called the Headquarters travel office to inquire whether he could purchase pots, pans, and linens instead of 5

renting them because purchasing them would be cheaper over a period of time.

Tr. 405, 410, 482-3 (Zerr).

According to the Defendant, he was told by someone in this office that he could purchase these items instead of renting them and prorate the cost over the period of months that he would be on travel.

Tr.-406, 482-83 (Zerr).

T-8.

Based upon this reasoning, Defendant made extravagant furniture purchases including a $1500 television, a $950 stereo, an $870 VCR, and other items including a coffee and cappuccino maker, a food processor, pots, knives, and dishes, Tr. 409-10, 476-79 (Zerr); NRC Ex. 42, 53, for which he claimed reimbursement

-l from the NRC by submitting Cort payments coupons for furniture he was not renting.

NRC Exs.

8, 9,

16-23, 25, 30.

At no time did the Defendant inform any one in the NRC travel office of these purchases or inquire about what he was expected to do with property paid for by the government.

Tr. 405, 473-74 (Zerr).

r 34

~..

t Nor did he' prorate them over the entire period of his travel as he contends he was instructed to do.

NRC Exs.

8, 9,

16-23, 25, 30.

T-9.

At trial, Defendant could not definitively recollect with whom from Headquarters travel he. spoke, although he though it was Pat Corvelli.

Tr. 405 (Zerr).

Ms. Corvelli testified

. [

that although she had dealt with Mr. Zerr in the past, she did not remember a specific conversation concerning purchasing pots, pans, and linens instead of renting them.

Tr. 545-46 (Corvelli).

She did, however, testify that had she been asked such a question by the Defendant or any government employee, her answer would have been an unequivocal "no".

Tr. 547 (Corvelli).

She further testified that this would not have been a difficult question because the government travel regulations are clear on this point, thus making it unnecessary to consult'any regulation or supervisor before answering this question in the negative.

Tr.

r 547 (Corvelli); Tr. 797 (Miller) ; NRC Ex. 69 T-10.

Defendant's assertion that he was told by NRC Headquarters traval office that he could purchase linens, pots, and pans instead of renting them lacks credibility given the r

testimony of Ms. Corvelli, his failure to follow any such alleged advice with regard to his travel vouchers, and his constant use juryrigged documentation consisting of the Cort receipt and coupons to support his vouchers.

T-11.

Even assuming arquendo that the Defendant had received such directions, such a limited direction from 35 l

~

Headquarters travel provides no support for his purchasing furniture and appliances instead of renting these goods.

Following Defendant's reasoning, this furniture was government property.

Yet Defendant never told the government of its existence and never made any arrangements (other than trying to get the NRC to pay for him to bring it home) to turn the furniture over to the government after his rotational assignment had been completed.

T-12.

Due to Defendant's own acts, the government believed he was renting furniture.

NRC Ex. 56 (page two, paragraph six);

Tr. 780 (Miller).

The only inference attributable to the evidence is that Defendant orchestrated this scheme to get the.

government to pay for his extravagant purchases of personal chattels by utilizing the subterfuge that what was involved was l

furniture rental.

Defendant even attempted to have the NRC reimburse him for moving these purchases back to his home in Maryland by submitting a claim for reimbursement of a U-haul.

charges. NRC Ex. 30 at 178."

B.

Car Rental T-13.

Counts XII, XIII, and XIV include allegations that the Defendant submitted false claims to the NRC for car rental.

The NRC authorized Defendant to rent a car during his entire

" The NRC denie'd this claim because, according to Defendant's vouchers, he was renting furniture and leasing a i

truck to return rented furniture is not an allowable expense.

NRC Ex. 56.

36

{

l

1 1

rotational assignment.

NRC Ex. 8 at 063; NRC Ex. 30 at 173.

On August 25, 1989, Defendant rented an automobile from a Hertz Corporation location in Gaithersburg, Maryland.

NRC Ex. 24 at 852, 854.

The beginning monthly rate for this rental was $659.77

{

plus tax.

Id.

This rental agreement expired on February 27, i

1990.

Id. at 245; Tr. 517 (Wallis).

T-14.

Because this was a long-term rental, the Defendant 6

qualified for Hertz's Multi-Month Program in which each ensuing month's rental price was reduced.

NRC Ex. 24 at 854, 245-46;"

Tr. 511-14 (Wallis).

Accordingly, while the first month's rental rate was $659.77 plus tax, the rate was reduced by $20,00 per month until it reached $599.77 where it became fixed until the expiration of the rental agreement on February 27, 1990.

NRC Ex.

24 at 245-46.

At that time a new rental agreement-would be executed if the car was to be retained.

Tr. 517 (Wallis).

T-15.

Hertz's business practice of explaining all terms and ccnditions contained in rental agreements, Tr. 515-16 (Wallis),

supports the proposition that the Defendant knew of the declining rates associated with his long-term' rental and the corresponding

" Whether or not the Defendant ever received Hertz's multi-monthly confirmation letter is not significant since the complaint charges the Defendant with false car rental claims beginning with vouchers for the period from March 3 through March 31, 1990, and his rental at that time under a second rental' contract with Hertz.

Defendant's knowledge of the lower rates in that contract is proven by his signature on three Hertz' documents containing the-rental price and Defendant's monthly credit card 3

bill statements which contain the appropriate Hertz monthly l

rental charges.

37 i

)

L

e need to execute a second rental contract in February of 1990 when the initial contract expired.

T-16.

On February 20, 1990, Defendant entered into a second rental agreement with Hertz renting a different car at a monthly rate of $549.77 which was to be billed directly to his Citibank Mastercard.

NRC Ex. 24 at LS868; Tr. 522-23 (Wallis).

Defendant signed this rental contract below the following language:

"You represent to have read and understand the above and all terms and conditions contained in paragraphs 1 through 14 of this agreement and that you agree to them."

NRC Ex. 24 at LS868.

T-17.

On March 27, 1990, Defendant exchanged the vehicle rented on February 20, 1990 from Hertz for a replacement vehicle and signed a replacement agreement containing a monthly rental price of $547.77.

NRC Ex. 24 at LS866, Tr. 524-25 (Wallis).

On July 20, 1990, Defendant exchanged the vehicle received on March 27, 1990 from Hertz for a second replacement vehicle and signed a second replacement agreement containing a monthly rental price of

$547.77.

NRC Ex. 24 at LS865; Tr. 524-25 (Wallis).

T-18.

Defendant's Mastercard bill for this time period covering his second rental contract with Hertz, which Defendant paid in part, reflects that Hertz charged him $577.26 (this figure represents.$547.77 plus tax).

NRC Ex. 42 at 417-22.

Hertz invoice records show that between February 20 and September 30, 1990, Defendant rented a car and was billed at a monthly rate of $549.77 plus tax.

NRC Ex. 24 at 857-62, 64.

38

t l-T-19.

Defendant claimed on his vouchers for March, April, and May through September, 1990, monthly reimbursement for car rental at the original monthly rate of $659.77 and attached a copy of the first rental agreement containing a monthly rental-amount of $659.77 instead of the actual monthly rate of $577.18, a difference of $91.63.

NRC Ex. 23 at 144; NRC Ex. 25 at 161; NRC Ex. 30 at 175-78.

C.

House Rental T-20.

Counts XIII and XIV include allegations that the Defendant submitted false claims to the NRC for house rental.

Upon arriving in Region II for his rotation assignment, in August 1989, Defendant rented an unfurnished apartment in Atlanta, Georgia at a' monthly rate of $875.00.

NRC Ex. 9 at'068S-69S.

Tr. 418 (Zerr).

His lease on this property expired on March 31, 1989.

NRC Ex. 9 at 068S-69S.

As of April 1, 1990, Defendant'was reassigned to serve as an resident inspector intern at the Hatch Nuclear Power Plant in Baxley, Georgia.

Tr. 411, 415 (Zerr).

Thir assignment necessitated that the Defendant obtain new lodging arrangements.

Tr. 412 (Zerr).

T-21.

Beginning April 1, 1990, Defendant entered into a six-month rental agreement for a four bedroom, single family residence with an in-ground swimming pool located at 405 Bobby Drive, Vidalia, Georgia 30474.

NRC Ex. 26 at 300-02; Tr. 412-13 (Zerr).

A copy of the lease agreement the NRC obtained from ERA Lovins Realty shows that the monthly rental rate was $6G9.00.

i 39

NRC Ex. 26 at 300-02.

Defendant admits that he signed this lease.

Tr. 413 (Zerr).

T-22.

During the six months Defendant rented this house he submitted two vouchers to the government, one dated May 1,

1990, for the period 4/1/90 to 4/30/90, NRC Ex. 25, and another dated December 24, 1990, for the period 5/1/90 to 9/30/90, NRC Ex. 30.

T-23.

The voucher for the period 4/1/90 to 4/30/90 contained a $875 claim for rent supported by a copy of the expired lease agreement for the apartment in Atlanta, Georgia rented to Defendant at a monthly rate of $875.

NRC Ex. 25 at 162-63.

Defendant did not live in Atlanta during this time period; he resided in Vidalia, Georgia at the house he was renting for $600 per month.

Tr. 415 (Zerr).

T-24.

Defendant submitted in support of his voucher for the period 5/1/90 to 9/30/90 claiming $875 in rent per month a copy f

or a substantially altered lease for the house in Vidalia showing a monthly rate of $875.00.

NRC Ex. 30 at 175-79, 185-87; Tr.

421-24 (Zerr).

Defendant admits that he altered this copy of the lease.

Tr. 425 (Zerr).

During this time period, Defendant paid to ERA Lovins Realty (the rental agent of the property) $600 rent i

for each month relevant to this voucher.

NRC Ex. 27; Tr. 416 (Zerr).

T-25.

Defendant's explanation to the alleged false claims for house rental is that because he was incurring expenses for obligations relating to the house rental in addition to rent, such as lawn care, extermination, and maintenance, the altered i

40 i

7 9

lease amount of $850 per month represented his total expenses and he therefore received no money from the NRC in excess of that to i

which he was entitled.

Tr. 423, 425 (Zerr).- This explanation is contradicted by Defendant's own actions.

As is evident from Defendant's December 24, 1990, voucher, Defendant individually i

claimed these so-called obligations related to the renting of the house in vidalia, i.e.,

extermination and lawn care.

NRC Ex. 30 at 175; Tr. 426-27 (Zerr).

Therefsce, Defendant's assertion that he inflated the rental amount on the lease to reflect other expenses incurred is erroneous.

D.

Meals & Incidental Expenses T-26.

Counts XIII and XIV include allegations that the Defendant submitted false claims to the NRC for Meals &-

i Incidental Expenses.

The federal government pays to its employees who are on official travel a daily sustenance rate call-M&IE (Meals and Incidental Expenses) in lieu of requiring its employees to submit individual receipts for food and other expenses.

Tr. 543 (Corvelli); Tr. 791-92 (Miller).

This rate varies according to what city an employee travels, is reduced for l

employees on extended travel, and is published in government f

travel regulations kept in each NRC office.

Tr. 791-93, 798, 321 (Miller).

T-27.

Having been on official government travel several' times before starting his rotational assignment in Georgia, Defendant was familiar with the varying per diem rates between j

41

1 l

cities.

Tr. 452-56 (Zerr).

When Defendant began his rotation assignment he claimed on his vouchers the M&IE rate (reduced due

)

to long-term travel) for Atlanta, Georgia.

See, e.o.,

NRC Exs. 8 at 54, 9 at 62.

Defendant, however, upon moving from Atlanta to Vidalia, Georgia, which had a lower M&IE rate, NRC Exs. 56 at 395, 69 at 2209 ($26 M&IE rate for every part of Georgia except for Atlanta), continued to claim and was paid the higher Atlanta rate even though he resided in a lower M&IE rate city.

NRC Exs.

25 at 161, 30 at 175-79.

No reduced rate was ever calculated because by the time the NRC discovered that Defendant was

{

residing in a different city his rotation had ended.

NRC Ex. 56

- i at 395.

E.

Use of a Personal Vehicle and Double Billing T-28.

Counts XV through XXIII include allegations that the Defendant submitted falso claims to the NRC for use of a personal-car and double billing MI&E expenses.

While on rotation to Region II, Defendant had occasion to take several official work trips for which he submitted travel vouchers.to Region II and was paid claims for use of a personal vehicle and MI&E.

NRC Exs. 31-39.

T-29.

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr. 457-59 (Zerr).

Because it was rented, Defendant incurred no wear-and-tear on the vehicle for which he could e reimbursed through mileage 42

allotments.

Defendant also admits that he did not possess a personal vehicle while on rotation to Atlanta even though he i

claimed such.

Tr. 457-59 (Zerr).

Therefore, by Defendant's own admission, he knew these claims for use of a personal vehicle while on official travel were false.

T-30.

Defendant, being on extended travel, was submitting to and paid by NRC Headquarters claims for M&IE for every day he was on rotation to Georgia, except for his last voucher which was the subject of an NRC inquiry.

NRC Exs.

8, 9,

16-23, 25.

At the same time Defendant claimed and was paid by Region II a'second l

M&IE during travel from the region, NRC Exs. 31-39, thereby resulting in being reimbursed for the same expense twice.

Therefore, by Defendant's own admission, he was claiming, for identical days, MI&E from both NRC Headquarters and NRC Region II.

Tr. 459 (Zerr).

V.

SPECIFIC FINDINGS FOR TRAVEL COUNTS COUNT IV IV-1.

On September 28, 1989, Defendant submitted to NRC Headquarters Travel Voucher R905842 claiming $1,619.15 for the period of September 16 through September 30, 1989.

NRC Ex. 9; NRC Ex. 50 at 5 (II-22) and NRC Ex. 51 at 6 (FA No. 22).

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 9; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

43

IV-2.

Defendant claimed on.his September 28, 1989. voucher reimbursement from the NRC of $154.33 for furniture rented from.

Cort despite having returned this furniture to Cort and not

,i renting any other furniture from Cort.

NRC Ex.--9 at 67S; NRC Ex.

l 50 at 6 (II-24) and NRC Ex. 51 at 6 (FA No. 24).

Due to Defendant's claim, the NRC paid him $154.33 for furniture rental, NRC Ex. 50 at 6 (II-30) and NRC Ex. 51 at 7 (FA No. 30), to which he was not entitled.

I IV-3.

Defendant knew or had reason to know at the time he submitted Travel Voucher R905842 on September 28, 1989 that the claim for furniture rental for this period was false, fictitious, or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any furniture from Cort or any other furniture rental-company.

COUNT V V-1.

On October 12, 1989, Defendant submitted to NRC Headquarters Travel Voucher R000002 claiming $1,663.57 for the period October 1 through October 15, 1989.

NRC Ex. 16; NRC Ex.

50 at 6 (II-31) and NRC Ex. 51 at 7 (FA No. 31).

Defendant signed on the voucher a certificac. ion that the voucher is true and correct to the best of his kncwledge and belief.

NRC Ex. 16; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

V-2.

Defendant claimed on his. October 12, 1989 voucher reimbursement from the NRC of $267.91 for furniture rented from Cort despite having returned this furniture to Cort and not l

i 44

renting any other furniture from Cort.

NRC Ex. 16 at 77s; NRC 4

Ex. 50 at 6 (II-32) and NRC Ex. 51 at 7 (FA No. 32).

Due to Defendant's claim, the NRC paid him $267.91 for furniture rental, l

NRC Ex. 16; NRC Ex. 16 at 77s; NRC Ex. 50 at 6 (II-34) and NRC Ex. 51 at 7 (FA No. 34), to which he was not entitled.

~

V-3.

Defendant knew or had reason to know at the time he submitted Travel Voucher R000002 on October 12, 1989 that the claim for furniture rental for this period was false, fictitious, or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any furniture from Cort or any other furniture rental company.

, COUNT VI 1

VI-1.

On November 1, 1989, Defendant submitted to NRC Headquarters Travel Voucher R000002 claiming $1,604.15 for the period October 16 through October 31, 1989.

NRC Ex. 17; NRC Ex.

l 50 at 7 (II-35) and NRC Ex. 51 at 7 (FA No. 35).

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 17; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

VI-2.

Defendant claimed on his November 12, 1989 voucher i

reimbursement from the NRC of $267.92 for furniture rented from Cort despite having already returned this furniture to Cort and not renting any other furniture from Cort.

NRC Ex. 17 at 88; NRC Ex. 50 at 7 (II-36) and NRC Ex. 51 at 7 (FA No. 36).

Due to Defendant's claim, the NRC paid him $267.91 for furniture, NRC 45 1

a

Ex. 17; NRC Ex. 50 at 7 (II-38) and NRC Ex. 51 at 7 (FA No. 38),

a to which he was not entitled.

VI-3.

Defendant knew or had reason to know at the time he i

submitted Travel Voucher R000002 on November 1, 1989 that the claim for furniture rental for this period was false, fictitious,

+

or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any furniture from Cort or any other furniture rental company.

COUNT VII VII-1.

On November 8, 1989, Defendant submitted to NRC Headquarters Travel Voucher R000002 claiming $3. 3.80 for the period November 1 through November 15, 1989.

NRC Ex. 18; NRC Ex.

50 at 7 (II-39) and NRC Ex. 51 at 7 (FA No. 39).

Defendant l

9 I

signed on the voucher a certification that the voucher is true i

and correct to the best of~his knowledge and belief.

NRC Ex. 18;

.i NRC Ex. 30 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

i VII-2.

Defendant claimed on his November 8, 1989 vouchet reimbursement from the NRC of $267.91 for furniture rented from Cort despite having already returned this furniture to Cort and not renting any other' furniture from Cort.

NRC Ex. 18 at 101; 1

?

NRC Ex. 50 at 7 (II-40) and NRC Ex.

. at 7 (FA No. 40).

Due to Defendant's claim, the NRC paid him $267.91 for furniture, NRC

'Ex.

18; NRC Ex. 50 at 7 (II-47) and NRC Ex. 51 at 7 (FA No. 42),

j to which he was not entitled.

46

-~

H i

)

VII-3.

Defendant knew or had reason to know at.the time he submitted Travel Voucher R000002 on November 8, '1989 that the claim for furniture rental for this period was false, fictitious, or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any furniture from Cort or any other furniture rental company.

l COUNT VIII VIII-1.

On November 29, 1989, Defendant submitted to NRC Headquarters Travel Voucher R000002 claiming $1,625.65 for the period November 16 through November 30, 1989.

NRC.Ex. 19; NRC Ex. 50 at 7 (II-43) and NRC Ex. 51 at 7 (FA No. 43).

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 19; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

.I VIII-2.

Defendant claimed on his November 29, 1989 voucher l

reimbursement from the NRC of $267.92 for furniture rented from Cort despite having already returned this furniture to Cort and i

not renting any other furniture from Cort.

NRC Ex. 19 at 1041; NRC Ex. 50 at 7 (II-44) and NRC Ex. 51 at 7 (FA No. 44).

Due to

'l Defendant's claim, the NRC paid him $267.92 for furniture rental, NRC Ex. 19; NRC Ex. 50 at 8 (II-46) and NRC Ex. El at 7.(FA No.

46), to which it was not entitled.

1 VIII-3.

Defendant knew or had reason to know at the time he l

. submitted Travel Voucher R000002 on November 29, 1989 that the claim for furniture rental for this period was false, fictitious, 47

or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any furniture from Cort or any other furniture rental company.

i COUNT IX t

IX-1.

On December 13, 1989, Defendant submitted to NRC 8

Headquarters Travel Voucher R000002 claiming $1,673.09 covering the period December 1 through December 15, 1989.

NRC Ex. 20; NRC Ex. 50 at 8 (II-47) and NRC Ex. 51 at 7 (FA No. 47).

Defendant signed on the voucher a certification that the voucher is true.

and correct to the best of his knowledge and belief.

NRC Ex. 20; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA Po. 23).

IX-2.

Defendant claimed on his December 13, 1989 voucher reimbursement from the NRC of $267.91 for furniture rented from Cort despite having already returned this furniture to Cort and not renting any other furniture from Cort.

NRC Ex. 20 at 115; NRC Ex. 50 at 8 (II-48) and NRC Ex. 51 at 7 (FA No. 48).

Due to Defendant's claim, tne NRC paid him $267.91 for furniture rental,

{

NRC Ex. 20; NRC Ex. 50 at 8 (II-50) and NRC Ex. 51 at 7 (FA lk).

50), to which he was not entitled.

i IX-3.

Defendant knew or had reason to know at the time he submitted Travel Voucher R000002 on December 13, 1989 that the claim for furniture rental for this period was false, fictitious, or fraudulent because he had already returned the rented l

furniture to Cort, received a refund, and no longer rented any furniture from cort or any other furniture rental company.

48 g

y-

.-. -i.

4 COUNT X X-1.

On or about January 1, 1990, Defendant submitted to NRC Headquarters Travel Voucher R000002 claiming $1,635.98 for the period December 16 through December 31, 1989.

NRC Ex. 21; NRC Ex. 50 at 8 (II-51) and NRC Ex. 51 at 7 (FA No. 51).

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 21; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

X-2.

On this voucher, Defendant claimed reimbursement from the NRC of $267.92 for furniture rented from Cort despite having already returned this furniture to Cort and not renting any other furniture from Cort.

NRC Ex. 21 at 180; NRC Ex. 50 at 8 (II-52) and NRC Ex. 51 at 7 (FA No. 52).

Due to Defendant's claim, the NRC paid him $267.92 for furniture rental, NRC Ex. 21; NRC-Ex.

l 50 at 8 (II-54) and NRC Ex. 51 at 8 (FA No. 54), to which he was l

not entitled.

X-3.

Defendant knew or had reason to know at the time he submitted Travel Voucher R000002 on January 1, 1990'that the claim for furniture rental for this period was false, fictitious,.

]

or fraudulent because he had already returned the rented furniture to Cort, received a refund, and no longer rented any

~

furniture from Cort or any other furniture. rental company.

COUNT XI XI-1.

On March 21, 1990, Defendant submitted to NRC Headquartern Travel Voucher R000002 ', laiming $6,655.36 for the 49

.i period January 1 through March 2, 1990.

NRC Ex. 22; NRC Ex. 50 at 8 (II-55) and NRC Ex. 51 at 8 (FA No. 55).

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 22; NRC

'l Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

XI-2.

Defendant claimed on his March 21, 1990 voucher reimbursement from the NRC of $1,089.52 for furniture rented from Cort despite having already returned this furniture to cort and not renting any other furniture from Cort.

NRC Ex. 50 at 8 (II-

56) and NRC Ex. 51 at 8 (FA No. 56).

Due to Defendant's claim, e

the NRC paid him $1.089.52 for furniture rental, NRC Ex. 22; NRC Ex. 50 at 9 (II-58) and NRC Ex. 51 at 8 (FA No. 58), to which he was not entitled.

XI-3.

Defendant knew or had reason to know at the time he suboitted Travel Voucher R000002 on March 21, 1990 that the claim l

for f '.rniture rental for this period was false, fictitious, or fraudule..it because he had already returned the rented furniture.

to Cort: received a refund, and no longer rented any furniture from Cort or any other furniture rental company.

COUNT XII XII-1.

On April 2, 1990, Defendant submitted to NRC Headquarters Travel Voucher R002305 claiming'$3,140.73 for the period March 3 through March 31, 1990.

NRC Ex. 23; NRC Ex. 50 at 9 (II-59) and NRC Ex. 51 at 8 (FA No. 59). _ Defendant signed on the voucher a certification that the voucher is true and 50

k 4

correct'to the best of his knowledge and belief.

NRC Ex. 23; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

XII-2.

Included in this voucher are claims for furniture rental and car rental.

NRC Ex. 23 at 144, 149, 152; NRC Ex. 50 at 9 (II-60) and NRC Ex. 51 at 8 (FA No. 60).

Defendant claimed on his April 2, 1990 voucher reimbursement from the NRC of

$517.90 for furniture rented from Cort despite having already returned this furniture to Cort and not renting any other furniture from Cort.

Id.

Defendant also claimed on this voucher

]

reimbursement for car rental from March 3 through March 31, 1990, at the original monthly rate of $659.77 instead of the actual i

monthly rate of $577.18 the Defendant paid.

NRC Ex. 23 at 152.

Due to Defendant's claim, the NRC paid him $517.90 for furniture rental and $91.63 for car rental, NRC Ex. 23; see NRC Ex. 50 at 9 (II-66) and NRC Ex. 51 at 8 (FA No. 66), to which he was not entitled.

The total of this false claim is $609.53.

XII-3.

Defendant knew or had reason to know at the time he submitted Travel Voucher R002305 on April 2, 1990 that the claims for furniture and car rental for this period were false, fictitious, or fraudulent.

COUNT XIII XIII-1.

On May 1, 1990, Defendant submitted to NRC.

i Headquarters Travel Voucher R002305 claiming $3,244.06 for the i

period April 1 through April 30, 1990.

NRC Ex. 25; NRC Ex. 50 at 9 (II-67) and NRC Ex. 51 at 8 (FA No. 67).

Defendant signed on i

51 i

i o

_ - ~.

the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 25; NRC Ex. 50 l

at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

XIII-2.

Included in this voucher are claims for furniture e

rental, car rental, lodging, and M&IE.

NRC Ex. 50.

Defendant claimed on his May 1, 1990 voucher reimbursement from the NRC of

$535.83 for furniture rented from Cort cespite having already returned this furniture to Cort and not renting any other furniture from Cort.

NRC Ex. 25 7.'c 164s; NRC Ex. 50 at 10_(II-

68) and NRC Ex. 51 at 8 (FA No. 68).

Defendant claimed on this voucher reimbursement for car rental from April 1, 1990 through

-April 30, 1990, at the original monthly rate of $659.77 instead of the actual monthly rate of $577.18 the Defendant paid.

NRC Ex. 50 at 161, 169s.

i XIII-3.

Defendant claimed on this voucher lodging reimbursement for $875.

NRC Ex. 25 at 161.

In support of this claim Defendant submitted an expired lease agreement for an i

apartment in Atlanta which contained a monthly rental amount of

$875.00.

Id. at 162-63.

During this time period, Defendant

{

resided in the house he rented in Vidalia, Georgia, paying

$600.00 in rent to ERA Lovins Realty for this period, not $875.00 l

as claimed on this voucher.

See PFF suora Nos. T-21, T-23.

XIII-4.

Defendant claimed on this voucher reimbursement.for j

meals and incidental expenses (M&IE) at the reduced Atlanta, Georgia, rate of $27 per day despite living during this period in

{

e 52 I

k i

l 5

s Vidalia, Georgia, where the rate is $26 per day.

NRC Ex. 25 at 161; NRC Ex. 56.

XIII-5.

Due to Defendant's claim, the NRC paid him $949.73 for furniture, car, housing, and M&IE, NRC Ex. 25; NRC Ex. 50 at 10 (II-77) and NRC Ex. 51 at 9 (FA No. 77), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel Voucher R002305 on May 1, 1990 that his claims for furniture rental, car rental, housing, and M&IE for this period were false, fictitious, or fraudulent.

COUNT XIV XIV-1.

On December 24, 1990, Defendant submitted the NRC Headquarters Travel Voucher R002305 claiming $18,122.61, covering

-the period May 1 through September 30, 1990.

NRC Ex. 30; NRC I

i Ex. 50 at 10 (II-78) and NRC Ex. 51 at 9 (FA No. 78).

Defendant 1;

. signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

NRC Ex. 30; NRC Ex. 50 at 6 (II-23) and NRC Ex. 51 at 6 (FA No. 23).

XIV-2.

Included in this voucher are claims for furniture rental, car rental, lodging, and MI&E. ' Defendant claimed on this voucher reimbursement from the NRC of $2,679.15 for furniture rented from Cort despite having already returned this furniture.

to Cort and not renting any other furniture from Cort.

NRC Ex.

50.at.10 (II-79) and NRC Ex. 51 at 9 (FA No. 79).

1 XIV-3.

Defendant claimed on this voucher reimbursement for car rental from May 1 through September 30, 1990, at the original 53

.I i

- i

=-

F monthly rate of $659.77 instead of the monthly rate of $577.18 l

the Defendant paid, a difference of $91.63 per month.

NRC Ex. 30 at 175-78, 188-89.

XIV-4.

Defendant claimed on this voucher roimbursement for

$875 in rent each month for this period.

NRC Ex. 30 at 175.

In support of this claim Defendant submitted a copy of the lease for the Vidalia house which he altered to show the rent to be $875.00 instead of $600.00 the Defendant actually paid, a difference of

$175.00 per month.

14, at 185-87; see also PFF suora No. T-24.

XIV-5.

Defendant claimed on this voucher reimbursement for meals and incidental expenses (M&IE) at the Atlanta, Georgia, i

rate of $27 despite living during this period in Vidalia, Georgia, where the rate is $26.

NRC Ex. 56.

Due to an inquiry into Defendant's travel vouchers, the NRC did not pay these claims for furniture rental, car rental, housing, and M&IE.

Id.

XIV-6.

Defendant knew or had reason to know at the time he submitted Travel Voucher R002305 on December 24, 1990 that this claims for furniture rental, car' rental, housing, and M&IE were i

false, fictitious, or fraudulent.

t COUNT XV XV-1.

On January 2, 1990, Defendant submitted to NRC Region II Travel Voucher R9B3154 claiming $402.79, for the period September 11 through September 15, 1989.

NRC Ex. 31.

Defendant' signed on the voucher a certification that the voucher is true and correct to the best of his' knowledge and belief.

Id.

54

~

'I i

Included in this voucher are claims for mileage for use of a personal car for official purposes ($155.25) and MI&E ($123.50).

12.; NRC Ex. 50 at 11 (II-88) and NRC Ex. 51 at 9 (FA No. 88).

XV-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R905842, dated September 11, 1989, which he submitted to the NRC Headquarters.

NRC Ex. 50 at 12 (II-91) and t

NRC Ex. 51 at 9 (FA No. 91).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for-which Defendant was being fully reimbursed by Headquarters.

Tr.

457-59 (Zerr).

Due to Defendant's claims, the NRC RII paid him

$278.75, NRC Ex. 31; NRC Ex. 50 at 12 (II-94) and NRC Ex. 51.at 9 (FA No. 94), to which he was not entitled.

Defendant knew or-had reason to know at the time he submitted Travel Voucher R9B3154 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent because he did I

not use a personal car for official travel and had already j

claimed M&IE for this period from Headquarters.

COUNT XVI XVI-1.

On January 2, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0011 claiming $580.40, for the period October 2 through October 6, 1989.

NRC Ex. 32.

Defendant signed on the voucher a certification that the voucher is true and P

correct to the best of his knowledge and belief.

Id.

Included in'this voucher are claims for mileage for use of a-person =2 car l

55

f7r official purposes ($218.40) and MI&E ($130.00).

Id.; NRC Ex..

I 50 at 12 (II-96) and NRC Ex. 51 at 9 (FA No. 96).

XVI-2.

Defendant was reimbursed for his M&IE expenses on u

Travel Voucher R000002, dated October 12, 1989, which he i

submitted to the NRC Headquarters.

NRC Ex. 50 at 12 (II-97) and NRC Ex. 51 at 9 (FA No. 97).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr.

457-59 (Zerr).

Due to Defendant's claims, the NRC RII paid him

$348.40, NRC Ex. 32; NRC Ex. 50 at 12 (II-100) and NRC Ex. 51 at 10 (FA No. 100), to which he was not entitled.

Defendant know or had reason to know at the time he submitted Travel Voucher ROB 0011 that the claims for M&IE and mileage on a personal j

vehicle during this period were false, fictitious, or fraudulent because he did not use a personal car for official travel and had already. claimed M&IE for this period from Headquarters.

COUNT XVII XVII-1.

On January 2, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0027 claiming $860.74, for the period October 16 through October 26, 1989.

NRC Ex. 33.

Defendant signed on the voucher a certification that the voucher is true.

e and correct to the best of his knowledge and belief.

Id.

i Included in this voucher are claims for mileage for-use of a personal car for official' purposes ($261.60) and MI&E ($221.00).

3 Id.;'NRC Ex. 50 at 12 (II-102) and NRC Ex. 51-at 10 (FA No. 102).

l l

-l i

56 m

2 i

I XVII-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R000002, dated November 1, 1989, which he; submitted to the NRC Headquarters.

NRC Ex. 50 at 13 (II-103) and NRC Ex. 51 at 10 (FA No. 103).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for r

which Defendant was being fully reimbursed by Headquarters.

Tr.

457-59 (Zerr).

Due to Defendant's claims, the NRC RII paid him

$482.60, NRC Ex. 33; NRC Ex. 50 at 13 (II-106) and NRC Ex. 51 at 10 (FA No. 106), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel Voucher ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or frau ulent because he did not use a personal car for official travel and.had already claimed M&IE for this period from Headquarters.

COUNT XVIII XVIII-1.

On January 2, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0393 claiming $114.00, for the period November 13 through November 17, 1989.

NRC Ex. 34.

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

Id.

Included in this voucher are claims for mileage for use of a personal car for official purposes ($12.00) and MI&E ($102.00).

I;d.; NRC Ex. 50 at 13 (II-108) and NRC Ex. 51 at 10 (FA No. 108).

XVIII-2.

Defendant was reimbursed for his M&IE expenses on Travel Vouchers R000002, dated November 8 and 29, 1989, which ho 57 2

4 m

-,,, - - ~, - -

e

+

submitted to the NRC Headquarters.

NRC Exs. 18, 19.

Defendant admits _that the only vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr. 457-59 (Zerr).

Due to Defendant's claims, j

the NRC RII paid him $114.00, NRC Ex. 34; NRC Ex. 50 at 13-(II-112 and NRC Ex. 51 at 10 (FA No. 112), to which he was not entitled.

Defendant knew or had reason to know at the' time he submitted Travel Voucher ROB 0011 that the claims:for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent because he did not use a personal car for official travel and had already claimed M&IE for this period from Headquarters.

COUNT XIX XIX-1.

On January 2, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0656 claiming $135.50, for the period a

December 4 through December 8, 1989.

NRC Ex. 35.

Defendant l

signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and-belief.

Id.

Included in this voucher are claims for mileage for use of a personal car for official purposes'($12.00) and MI&E ($123.50).

Id.; NRC Ex. 50 at 13 (II-114) and NRC Ex. 51 at 10-(FA No. 114).

XIX-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R000002, dated December 13, 1989, which he r

submitted to the NRC Headquarters.

NRC Ex. 50 at 14 (II-115) and NRC Ex. 51 at 10.(FA No. 115).

Defendant admits that the only 58

vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr.

457-59 (Zerr).

Due to Defendant's claims, the NRC RII paid him' l

$135.50, NRC Ex. 35; NRC Ex. 50 at 13 (II-112 and NRC Ex. 51 at 10 (FA No. 112), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel Voucher ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent because he did not use a personal car for official travel and had already claimed M&IE for this period from Headquarters.

COUNT XX XX-1.

On January 16, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0841 claiming $332.30, for the period January 8 through January 12, 1990.

NRC Ex. 36.

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

Id.

Included in this voucher are claims for mileage for use of a personal car for official purposes ($208.80) and MI&E ($123.50).

14.; NRC Ex. 50 at 14 (II-120) and NRC Ex. 51 at 10 (FA No. 120).

XX-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R000002, dated March 21, 1990, which he submitted to the NRC Headquarters.

NRC Ex. 50 at 14 (II-121) and NRC Ex.

51 at 10 (FA No. 121).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for which i

Defendant was being fully reimbursed by Headquarters.

Tr. 457-59 59

~

\\

(Zerr).

Due to Defendant's claims, the NRC RII paid him l

$332.30, NRC Ex. 36; NRC Ex. 50 at 13 (II-124 and NRC Ex. 51 at 11 (FA No. 124), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel voucher ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent i

because he did not use a personal car for official travel and had already claimed M&IE for this period from Headquarters.

COUNT XXI XXI-1.

On January 29, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 0993 claiming $129.00, for the period January 22 through January 26, 1990.

NRC Ex. 37.

Defendant signed on the voucher a certification that the voucher is true r

and correct to the best of his knowledge and belief.

Id.

Included in this voucher are claims for mileage for use of a i

personal car for official purposes ($12.00) and'MI&E ($117.00).

Id.; NRC Ex. 50 at 14 (II-126) and NRC Ex. 51 at 11 (FA No. 126).

XXI-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R000002, dated March 21, 1990, which he' submitted to the NRC Headquarters.

NRC Ex. 50-at 14 (II-121) and NRC Ex.

i 51 at 10 (FA No. 121).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr. 457-59 1

i (Zerr).

Due to Defendant's claims, the NRC RII paid him

$129.00, NRC Ex. 37; NRC Ex. 50 at 15 (II-130 and NRC Ex. 51 at 60 s

~.

1 l

11 (FA No. 130), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel Voucher ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent 1

)

because he did not use a personal car for official travel and had already claimed M&IE for this period from Headquarters.

I COUNT XXII j

XXII-1.

On February 12, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 1098 claiming $339.50, for the period i

February 5 through February 9, 1990.

NRC Ex. 38.

Defendant signed on the voucher a certification that the voucher is true

)

and correct to the best of his knowledge and belief.

Id.

Included in this voucher are claims for mileage for use of a personal car for official purposes ($216.00) and MI&E ($123.50).

Id.; NRC Ex. 50 at 15 (II-132) and.NRC Ex. 51 at 11 (FA No. 132).

XXII-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R000002, dated March 21, 1990, which he submitted to the NRC Headquarters.

NRC Ex. 50 at 14 (II-121) and NRC Ex.

51 at 10 (FA No. 121).

Defendant admits that the only vehicle lua used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.- Tr. 457-59 i

(Zerr).

Due to Defendant's claims, the NRC RII paid him

$339.50, NRC Ex. 38; NRC Ex. 50 at 15 (II-136 and NRC Ex. 51 at 11 (FA No. 136), to which he was not entitled.

Defendant knew or had reason to know at the time he submitted Travel Voucher 61

ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent because he did not use a personal car for official travel and had already claimed M&IE for this period from Headquarters.

COUNT XXIII XXIII-1.

On April 2, 1990, Defendant submitted to NRC Region II Travel Voucher ROB 1505 claiming $187.88, for the period i

1 March 13 through March 15, 1990.

NRC Ex. 39.

Defendant signed on the voucher a certification that the voucher is true and correct to the best of his knowledge and belief.

Id.

Included in this voucher are claims for mileage for use of a personal car j

for official purposes ($122.8S) and MI&E ($65.00).

Id.; NRC Ex.

50 at 15 (II-138) and NRC Ex. 51 at 11 (FA No. 138).

i XXIII-2.

Defendant was reimbursed for his M&IE expenses on Travel Voucher R0023054 dated April 2, 1990, which he submitted to the NRC Headquarters.

NRC Ex. 50 at 16 (II-139) and NRC Ex.

51 at 11 (FA No. 139).

Defendant admits that the only vehicle he used for these trips was the car rented from Hertz for which Defendant was being fully reimbursed by Headquarters.

Tr. 457-59 (Zerr).

Due to Defendant's claims, the NRC RII paid him $187.88 to which he was not entitled. NRC Ex. 39 at 293.

Defendant knew or had reason to know at the time he submitted Travel Voucher ROB 0011 that the claims for M&IE and mileage on a personal vehicle during this period were false, fictitious, or fraudulent 62

because he did not use a personal car-for official travel and had already claimed M&IE for this period from Headquarters.

VI.

PENALTIES AND ASSESSMENTS A.

Basis" As noted earlier, if it is found that the Defendant made a false claim that he knew or should have known was false, he "shall be subject to, in addition to any other remedy that may be prescribed by law, a civil penalty of not more than $5,000 for each such claim."

31 U.S.C.

S 3802 (a) (1) ; 10 C.F.R.

S

13. 3 (a) (1).

In addition, if the Government has made any payment on a claim, a person subject to a civil penalty shall also be-subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of the Act.

31 U.S.C.

S 3802(a) (1); 10 C.F.R.

S l

13. 3 (a) (5).

The NRC's regulations contemplate that a double j

l assessment and a significant penalty will ordinarily be imposed i

when liability is found.

10 C.F.R. S 13.31(a).

.This is

"[b]ecause of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who i

might be similarly tempted...."

Id.

1 i

-l The Initial Decision must contain a finding of fact on "the appropriate amount.of any such penalties and assessments considering any mitigating or aggravating factors" such as those described in 10 C.F.R.

S 13.31.

10 C.F.R. S 13.37 ((b) (2).

It also should articulate the reasoning that supports the penalties and assessments.

10 C.F.R. S 13.31(a).

63

l B.

The Maximum Penalties and Assessment in this case In this proceeding, the Defendant may be held liable up to S115,000 in civil penalties ($5,000 for each of the twenty-three false claims) plus $17,771.50 in assessments (two times the

$8,885.75 in false claims paid to Defendant by the NRC).

The false claims that were paid, as previously shown in the statement of facts, are as follows:

Count I

- $ 938.88 (earnings) 660.15 (earnings)

Count II Count III -

528.12 (earnings) 154.33 (furniture rental)

Count IV 267.91 (furniture rental)

Count V Count VI 267.92 (furniture rental)

Count VII 267.91 (furniture rental)

Count VIII -

267.92 (furniture rental) 267.91 (furniture rental)

Count IX Count X 267.92 (furniture' rental) 1,089.52 (furniture rental) l Count XI Count XII -

517.90 (furniture rental) 91.63 (excess car rental cost claim)

Count XIII -

535.83 (furniture rental) 108.90 (excess car rental cost claim) j 275.00 (housing rental) l 30.00 (M&IE expense)

Count XIV N/A Count XV -

155.25 (mileage for use of a personal car) 123.50 (M&IE)

Count XVI -

218.40 (mileage for use of a personal car) 13 0. 00 - (M&IE)

Count XVII -

261.60 (mileage for use of a personal car) 221.00 (M&IE expense)

Count XVIII 12.00 (mileage for use of a personal car) 102.00 (M&IE expense)

Count XIX 12.00 (mileage for use of a personal car) 123.50 (M&IE expense)

Count XX 208.80 (mileage for use of a personal vehicle) 123.50 (M&IE)

Count XXI 12.00 (mileage for use of personal car) 117.00 (M&IE)

Count XXII 216.00 (mileage for use of a personal car) 123.50 (M&IE)

Count XXIII 122.88 (mileage for use of a personal car)"

65.00 (M&IE)

TOTAL S 8,885.68 64

l The NRC cannot seek a double assessment for the false claim set forth in Count XIV (voucher for 5/1 - 9/30/90),

amounting to $4,747.65, the only false claim set forth in the complaint that was not paid.

However, the total amount of the false claims submitted to the NRC when this amount is included is

$13,633.33.

NRC Ex. 57.

4 C.

Restitution Obtained i

The NRC has recovered $7,454.57 of the monies (i.e.,

$8,885.68) that it paid the Defendant in connection with his false claims.

NRC. Ex. 65; Tr. 785-86 (Miller).

This recovery i

resulted from a pretrial diversion agreement in connection with the disposition of United States v.

Zerr, Indictment No. 291-018, Southern District of Georgia.

NRC Exs. 58, 59, 61; Tr. 894-95 (Fields)." Accordingly, the total amount of any double assessment awarded to the NRC should be reduced by the restitution already paid to the NRC by the Defendant.

D.

Factors Warrantina Substantial Civil Penalties and the Double Assessment The NRC's regulations set out a non-exhaustive list of j

sixteen factors that may influence the determination of the I

amount of penalties and assessments to be imposed.

10 i

C.F.R.

S 13.31.

Application of those factors to this case compels the imposition of significant penalties and assessments.

Indeed, consideration of the applicable factors, coupled with the

" The indictment was dismissed after the Defendant's agreement that he would make restitution.

Tr. 888 (Fields).

65 s

absence of mitigating circumstances, makes a double assessment and penalties at or near the maximum appropriate.21 a.

The Number. Time Period and Amount of the Claims.

The number of false claims, the duration of the fraudulent endeavors, and the dollar amount of the false claims that the Defendant submitted, suggest the imposition of a penalty in the upper limits of this court's discretion.

This case involves not just a few dollars or a few hundred dollars in false claims, but thousands of dollars in twenty-three false claims that were submitted over a sixteen month span.

The evidence reveals not merely an isolated lapse, but rather a pattern of submittal of fraudulent documents for many months, whereby Defendant Earlier in the case, it was determined that the Defendant had no basis for his claim of double jeopardy, and in its argument on that issue, the NRC pointed to the case of United States v.

Halner, 490 U.S.

435 (1989), for the proposition that even where there has been former jeopardy and punishment, a subsequent civil action for a civil penalty is still appropriate so long as the penalty imposed is remedial, 12e., not grossly disproportionate to actual damages.

Unlike in Halper, in this case the Defendant has not shown a prior jeopardy or punishment (see Ruling On Defendant's Motion To Dismiss, dated September 30, 1993), and therefore does not fall the ruling in Halner for doubled jeopardy cases, but rather within the dicta in Halper:

"Nothing in today's ruling precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive."

Id. at 450.

of course, "[i]t is not unusual for statutes to provide for a heavy civil penalty, as an alternative to criminal punishment, to discourage objectionable activity and to insure adequate compensation."

Chapman v.

U.S.

Department of Health & Human Services, 821 F.2d 523, 528 (10th Cir. 1987) (penalties and assessments of $156,318 imposed on claimant for submitting 19 false medicaid claims in case of actual overpayment of $21,115). See also Mavers v.

U.S.

Denartment of Health & Human Services, 806 F.2d 995 (lith Cir.

i 1986) (penalty again chiropractor of $1,719,100 based on receipt of $24,697.73 from medicare program for false claims, was warranted by aggravating circumstances).

66

k significantly enriched himself.

Thus, it is clear that the number of false claims, the period time over which they were i

submitted, and their. dollar amount, are aggravating factors..

See 10 C.F.R.

S 13. 31(b) (1), (2), (4).

b.

The Decree of Culpability, the Pattern of Such Conduct.

)

and the Concealment of the False Claims.

The number of false claims, the variety of the situations whereby Defendant was able to fraudulently inflate his claims, and the cleverness with which he disguised their falsity, are eloquent testimony that Defendant was embarked upon a well thought-out program of illegal salary supplementation.

See 10 C.F.R.

S 13.31(b) (3), (8), (9).

This was not a result of haste, inadvertence, or careless recordkeeping.

Over a long period, the Defendant exhibited a continuous pattern of pursuing nearly ever opportunity to enrich himself through false claims, first through false travel claims to NRC Headquarters and false travel claims to Region II, and when the opportunity for false overtime claims arose, the' Defendant exploited that opportunity as well until he was caught.

See 10 C.F.R.

S 13. 31(b) (8) ("a pattern of the same or similar misconduct").

The Defendant cannot credibly blame anyone or

- anything but his own greed since he personally prepared and assembled the travel vouchers at issue and personally submitted j

the specific overtime claims at issue.

The Defendant's high degree of culpability is dramatically illustrated by his failure to present any credible defense to the charge that he knew or should have known that the 67

. ~.-.

i

)

1 claims were false, of course, credible defenses are not readily i

available when, for example, a Defendant has sought reimbursement of house rental costs by submission of a carefully and substantially altered house rental agreement, submitted claims

]

over a period of more than a year for the rental of furniture that was in fact returned two weeks after it was. rented, submitted claims to two different NRC offices for meals for the same days and weeks, and submitted claims for use of a personally-owned vehicle while in fact solely driving a rental-l vehicle that was simultaneously the subject of-rental cost claims to the NRC.

Credible defenses to false overtime claims are also not available when the Defendant has claimed huge amounts of overtime but has never been able to recall, either almost contemporaneously with the purported work or at trial, what kind of work or with whom such work was performed.

The fact that this l

work was supposedly done outside of his normal work place and l

l working hours, and should have been subject to ready recall, highlights the Defendant's inability to justify his actions.

When the Defendant was forced to address some of the evidence of false claims during the NRC's examination of him, his own testimony betrayed, at the very least, extraordinarily reckless disregard of the truth or, falsity of his claims.

For instance, he claimed to have never read-statements preceding.his signature on a rental car agreement (Tr. 430, 445), said lamely that "it is not inconceivable" that he would send in payments-without receiving or reviewing the credit card statements showing-68 i

his actual payments for his Hertz rentals (Tr. 440) (NRC Ex. 24),

and signed three Hertz documents without noting the monthly charge stated which was substantially lower than he was charging the NRC (Tr. 445-447) (NRC Ex. 24 at LS866, LS868, LS865).

Indeed, deliberate concealment of the truth, not mere negligence, is shown by such evidence as the submission of an expired lease for an apartment in Atlanta during the first month of the rental of a house in Vidalia, Georgia, the fraudulent alteration and submission eight months later of an altered' rental agreement for the house in Vidalia, retention of payment coupons for furniture no longer rented and continual submission of such coupons with travel vouchers over a period of fifteen months, and continual submission of one of the original Hertz documents as evidence of the payment of charges in excess of those incurred.

c.

The Complexity of the Procram and Decree of Defendant's Sophistication.

The Defendant's argument that at most he merely made some mistakes cannot withstand analysis in light of the Defendant's education and sophistication, and the simple requirements that employees claim reimbursement for expenses s

incurred and hours worked.

See 13 C.F.R. S 13.31(14).

The Defendant was highly educated, served as a GS 12 at the time (although he told the court he thought that he was a GS 9, Tr.

500 (Zerr)), was deemed to be qualified for the special NRR-l intern program, and had been on official travel several times before his rotation to Georgia.

69

-i

Moreover, the nature of the claims at issue were not i

complex.

As the NRC has repeatedly asserted, the main focus of this case two simple issues: (1) did the Defendant incur the

)

i expense he claimed, and (2) did the Defendant work the hours that l

he claimed.

What one is personally paying for housing, or furniture, or a rental car, and what hours one is actually working, are straight-forward matters of fact that do not even require a high level of sophistication or education.

While NRC's regulations at issue in this case are not complex or sophisticated, several facets of Defendant's fraudulent scheme were quite complex and displayed considerable sophistication on his part.

d.

The Actual Loss, Includina the Cost of Investiaation.

i The amount of the actual payments of false claims to the-Defendant and the cost of the Government's investigation also support the imposition of a double assessment and substantial i

penalties.

See 10 C.F.R. S 13. 31(b) (5).

As-noted above, the NRC actually paid the Defendant $8,885.75 of the total of his false claims.

In addition, the NRC introduced evidence of hours of

. work, travel, and work products associated with the.Zerr investigation, and costs amounting to $28,514.04.- NRC Exs. 44-47,.73-74 ($24,693.18 in wages of Mr. Fields and $3,820.86 in costs of Mr. Fields' travel).

The initial focus of the investigation by the office of Inspector General concerned the Defendant's overtime claims.

Tr.

749 (Fields).

To carry out this task, Mr. Ronald Fields, Senior 70 t

I l

J Criminal Investigator with substantial experience as criminal investigator for the Government (Tr. 747-48) (Fields), travelled to Region II and interviewed the Defendant's supervisors.

Tr.

749 (Fields).

He had to obtain and review the Defendant's time and attendance records and other documentation. Id.

He also travelled to the Hatch plant where he interviewed the plant's security director, as well as the Resident Inspector, Leonard Wert.

Id.

Subsequently, he interviewed other resident inspectors who had been at Hatch at the time of the overtime i

fraud.

Id.

During Mr. Fields' inquiries into the overtime allegations, his investigation expanded to include the Defendant's submission of travel vouchers for travel and living 1

I expenses.

Id.

at 750-51.

Obviously, Mr. Fields also had to obtain and review in detail. the many travel vouchers to NRC Headquarters and to Region II that are now at issue, and obtain such further information and documents (such as accurate statements of monies due and payments) as would establish the i

truth or falsity of the Defendant's claims.

This also involved travel to Georgia, interviews with numerous individuals, and procurement and review of documents from service providers to the Defendant.

Id.

For instance, Mr. Fields travelled to Vidalia, Georgia and interviewed, and obtained records from, the owner of

)

the real estate company who handled the rental of a house in Vidalia to the Defendant during his work at the Hatch plant.

Id.

at 750.

Mr. Fields' activities also included interviews and of 71

~

.)

~:

personnel of the Hertz Corporation and the Cort Furniture Rental Company, and obtaining the pertinent documents from such companies.

Id. at 750-51.

On the basis of bi-weekly records of the time spent on-i the investigation of the Zerr case (NRC Ex. 44) and his bi-weekly wage rates at the time, Mr. Fields determined that he had spent at least 1,115 hours0.00133 days 0.0319 hours 1.901455e-4 weeks 4.37575e-5 months on the Zerr case between June 17, 1990 and March 3, 1993.

NRC Ex. 73; Tr. 866-69 (Fields).

The. total cost to the NRC, in terms of Mr. Fields' wages alone for these hours, was $24,693.18.

Id.

Mr. Fields also calculated the costs of his travel associated with investigation of the Zerr matter.

The total cost of this travel was $3820.86.

NRC Ex. 74; Tr. 871-874.

Thus, the total of the actual loss to the NRC as a result of the Defendant's misconduct, as measured only by the payments to the Defendant on his false claims and by the Mr. Field's wages and travel costs, is $37,399.79.

1 d.

The Need for Deterrence and the Potential Impact on Government procrams.

A double assessment and substantial civil 2

penalties are required in this case in order to deter.others who i

might be similarly tempted, see 10 C.F.R. S 13.31(b) (16) and to recognize the potential impact of such misconduct.on Government programs, see 10 C.F.R. S 13.31(7).

If NRC employees could

+

engage in such flagrant misconduct and respond once caught with nothing more than a small penalty in addition to restitution of 72 i

f

~ - - -

5 their ill-gotten profits, there would be no real penalty for such conduct.

The filing of false travel and overtime claims by any Government' employee is a serious matter.

If paid, the false claims devour funds otherwise eligible for legitimate mission expenditures, and if investigated, it results in still more deflection of government funds from constructive pursuits.

Moreover, this case presents such.an egregious and lengthy pattern of falsely claiming funds from the NRC that it-is an extraordinarily appropriate case for imposition of a substantial penalty that would clearly deter other NRC employees who may be similarly tempted.

A double assessment and substantial civil penalty would also foster public confidence in the NRC's effort to control waste, fraud and abuse.

Moreover, the integrity and success of the NRC's resident inspection program in particular relies heavily upon the reliability of the word of its inspectors.

Tr. 365-66 (Wert).

Falsifying time and attendance by someone acting as "the eyes and ears of the agency" on the front line of the NRC, an NRC resident inspector's office, has serious potential for diminishing the credibility and integrity of'the resident inspector program.

Id.

Individuals who serve as resident inspectors or wish tofpursue

~

qualification as an NRC resident inspector should know that the responsibility and independence associated with such positions-may not be abused without certain and strong sanction.

73

' ^

i

.o~

1

-l

- :l e.

The Relationshin of the Amount of the NRC's Loss to the l

Potential Penalty.

An assessment of double damages, 122.,

i

$17,771.50, plus the maximum civil penalty, 122., $115,000.00, would total $132,771.50, or approximately 3 and 1/2 times the

?

l actual direct costs.

Imposition of an assessment and of penalties at or near these amounts is reasonable since 1) double damages for f alse claims paid and ci Jnificant monetary penalties i

t are " ordinarily" warranted where liability is shown and 2) the i

applicable factors so strongly favor imposition of the maximum pw.*: ties.

Egg 10 C.F R. SS 13.31(a) and (b) (6).

I 1

-+

i l

W l

a k

i I

4 s

74

s VII.

CONCLUSION For the reasons stated above, the facts and law require findings that the Defendant knew or should have known that the claims set forth in Counts I - XXIII of the NRC's complaint were falso when those claims were made, and that a double assessment of the paid claims and penalties at or near the maximum should be imposed.

Respectfully submitted, O

/

1- ) M gyl M/ Shapirg

?

b'h t

4A Roger f. Davis U.

S.

Nuclear Regulatory Commission Office of the General Counsel Mail Stop 15 B18 Washington, D.C.

20555 Tel. 301/504-1606 Attorneys for the NRC l

l DATED:

January 10, 1994 1

75 i

. e

/*

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge Morton B. Margulies

)

In the Matter Of

)

Docket No. 93-01-PF

)

LLOYD P.

ZERR

)

ASLBP No. 93-673-01-PF

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC Post-Trial Brief Including Proposed Findings" were served upon the following persons by U.S.

mail, first class, except as indicated by an asterisk, through deposit in the NRC internal mail system, this loth day of January, 1994 Morton B. Margulies Lloyd P.

Zerr Chief Administrative Law 718 13th Street, NE Judge Washington, DC 20002 Atomic Safety and Licensing Board, Mail Stop EW-439 Timothy E.

Clarke, Esq.

U.S.

Nuclear Regulatory 5 North Adams Street Commission Rockville, MD 20850 Washington, DC 20555

)

(original plus two copies)

Office of Commission Appellate Adjudication

U.S.

Nuclear Regulatory Commission Washington, DC 20555 f01W

.0AAAn Rb'ger/ K.

Davis

~

l U.S. Aiuclear Regulatory Commission Office of the General Counsel Mail Stop 15 B18 Washington, DC 20555 Tel. 301/504-1606

)

.

ML20059H904

Text

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