ML20077C115
| ML20077C115 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/23/1994 |
| From: | Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#494-16022 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9411300334 | |
| Download: ML20077C115 (6) | |
Text
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[d$fC)2f 2 DOCD:TED USi4RC November 23, 1994
'94 NCV2r PMir 4:s%)s a
' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE fr.
- _m R Y ATOMIC SAFETY AND LICENSING BOARhCCM1P-12BRida,n]
W Before Administrative Judges:
Peter B.
Bloch, Chair Dr. James H.
Carpenter Thomas D. Murphy
)
In the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA FOWER COMPANY
)
50-425-OLA-3
.d al.,
)
a
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 INTERVENOR'S BRIEF REGARDING SEQUESTRATION OF WITNESSES I.
BACKGROUND On October 24, 1994, Intervenor filed a " Motion to Reopen Discovery" to which Licensee responded on November 3, 1994 The Board issued its decision on November 9, 1994. See Memorandum and Order (Motion to Reopen Discovery)
("M&O").
In this M&O the Board ordered, to ensure the protection of the record, that "all witnesses expected to testify on this issue...shall refrain from any conversations on this issue other than in their immediate family..
M&O at p.
4.
At the November 17, 1994, Status Conference, counsel for Georgia Power informed the Board that it intended to file a motion for reconsidetmtion of the Board's order sequestering the witnesses.
At that time counsel for 2
NRC Staff Counsel did not submit a response.
9411300334 941123 PDR ADOCK 05000424 C
PDR DO3
i Georgia Power also indicated that sequestration would interfere with the witnesses' right to counsel.
The Board ordered the parties to file briefs concerning their positions on the sequestration of witnesses by close of business Wednesday, November 23, 1994.
II.
ARGUMENT
)
A.
The Board Has The Discretion to Secuester Witnesses j
A presiding officer in a proceeding before the Nuclear
)
Regulatory Commission, has the duty to conduct a fair and impartial hearing.
10 C.F.R.
S 2.718.
The presiding officer has all powers necessary to do this including the power to
"[r]egulate the course of the hearing and the conduct of the participants." 10 C.F.R.
S 2.718 (e)
The judge is not a mere moderator, but is the governor of the trial for the purpose of i
assuring its proper conduct and of determining questions of law.
Geders v.
United States, 425 U.S.
80, 86 (1975).
His determination will be reviewed only for abuse of discretion. Id.
The judge's power to control the progress and the shape of the trial includes the broad power to sequester witnesses before, l
during and after their testimony.
Id. at p.
87.
The purpose of 1
sequestering witnesses is twofold:
It exercises a restraint on witnesses " tailoring" their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid.
Id.
The Board stated in its M&O that there has already been adequate opportunity for the parties to discuss the issue of the emergency procedures concerning the On Call Project Manager List 2
4 I
with their attorneys and among themselves.
M&O at p.
4.
. Therefore, it is within the Board's discretion to sequester the witnesses.before they testify in order to ensue the record is true and adequate.
It would be contrary to the interest of justice to eviscerate the Court's sequestration powers and procedures should.be employed to protect the tribunal's power and authority with respect to sequestration.
B.
A Conflict of Interest Exists Individual witnesses should obtain counsel separate from Georgia Power's counsel.
The assertion of a Fifth Amendment right to counsel for Licensee's witnesses is an indication that an irreconcilable conflict of interest can develop.
If the witnesses are compelled to seek counsel to discuss potential wrongdoing, an irreconcilable conflict arises between the witness' interests to safeguard his job and potential civil or criminal penalties versus~ Georgia Power Company's presumed duty of candor to this tribunal and the NRC.
Georgia Power's counsel may be placed in a position to choose between voluntarily disclosing information to the Board regarding the wrongdoing of an individual or secret it to protect the interests of the individual.
Intervenor concedes that a witness, upon being compelled to testify, has the right to counsel in their capacity as individuals.
Sgg 33 ALR 3d 229, 255 (Administrative Procedure Acts).
They do not have the right to the same counsel as Georgia Power.
Intervenor believes that the principle of sequestration i
3 i
)
e is-best resolved by. compelling any individual witness to obtain outside counsel not associated with GPC and that communication with GPC's counsel be prohibited so the principle of sequestration can be effectively accomplished without interfering with an individual's right to counsel.
C.
The Richt of Choice of Counsel Is Not Absolute In the context of an employer / employee relationship, when the public interest will be advanced by the disclosure of wrongdoing, the employee and the employer should not be represented by the same counsel.
United States ex rel. Hart v.
Davenport, 478 F.2d 203 (3d Cir. 1973).
The court, in Davenport, cited to the following passage from In re Abrams, 266 A.2d 275, 278 (N.J. 1970)-
It is inherently wrong to represent both the employer and the employee if the employee's interest may, and the public interest will, be advanced by the employee's disclosure of his employer's criminal conduct.
478 F.2d at 209.
The issues regarding the emergency procedures have been extensively adjudicated at this point in the proceeding.
Therefore, it is in the public interest that the witnesses be sequestered from counsel for Georgia Power (and counsel to the other parties) to ensure that the witnesses' testimony is genuine.
4
4.
j III. Conclusion Intervenor maintains with respect to issues related to the M&O, to the extent any individual seeks representation of counsel, that individual should obtain separate counsel, other than counsel employed by Georgia Power.
The right to counsel of one's choice is not absolute and the interest of justice in this proceeding requires each individual to obtain separate counsel with instruction that individuals and counsel are not free to discuss the issue with anyone other than their individual client.
Respectfully submitted,
~
~-
Michaet D.
Kohn Mary Jane Wilmoth KOHN, KOHN AND COLAPINTO, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 (202) 234-4663 Attorneys for Intervenor Dated:
November 23, 1994 CERTIFICATE OF SERVICE I hereby certify that a copy of Intervenor's Brief Regarding Sequestration of Witnesses has been served this 23 day of November 1994, by facsimile and first class mail upon the parties l
in the attached service list.
Except that where indicated by asterisk "*", it was served only by first class mail.
J A 2W Mary #Uane Wilmoth
/
C:\\ FILES \\301\\BRIEF. SEQ 5
00CKETED~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 94 N3v 25 P3 :08
)
In the Matter of
)
OfF A 0,._
!ARY
)
Docket Nos. 50-4Dh9bLA13
. f M 'J F GEORGIA POWER COMPANY
)
50-425-OLi43dEh gt al.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge
- Administrative Judge Peter B.
Bloch, Chair James H.
Carpenter Atomic Safety and Licensing Board 933 Green Point Drive U.S.
Nuclear Regulatory Commission Oyster Point Washington, D.C.
20555 Sunset Beach, NC 28468 Administrative Judge Charles A.
Barth, Esq.
Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S.
N.R.C U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 John Lamberski, Esq.
Ernest L.
Blake, Jr.
Troutman Sanders David R.
Lewis Suite 5200 SHAW, PITTMAN, POTTS &
600 Peachtree Street, N.E.
TROWBRIDGE Atlanta, GA 30308-2216 2300 N Street, N.W.
Washington, D.C.
20037 Office of the Secretary Attn: Docketing and Service U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Office of Commission Appellate Adjudication U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 301\\ cert.lis 1