ML20129F638

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Requests Acceptance or Refusal by Wg Hairston & Ck Mccoy to Submit to Polygraph Exam W/Respect to Compelled,Sworn Testimony to NRC on 930625 & 30,respectively
ML20129F638
Person / Time
Site: Vogtle Southern Nuclear icon.png
Issue date: 07/27/1993
From: Vorse J
NRC OFFICE OF INVESTIGATIONS (OI)
To: Morris B
AFFILIATION NOT ASSIGNED
Shared Package
ML20129F106 List:
References
FOIA-94-208 NUDOCS 9610070009
Download: ML20129F638 (2)
v • d • e


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/ UNITED STATES NUCLEAR REGULATORY COMMISSION 5 o OFFICE OF INVESTIGATIONS FIELD OFFICE. REGION ll 3 ij 101 MARIETTA STREET NW suite 2900 o, g ATLANTA. GEORGIA 30323 l

% *-s.e* f July 27, 1993 Bruce H. Morris Attorney at Law Finestone, Morris & Wildstein Suite 2540 Tower Place 3340 Peachtree Road N. E.

Atlanta, Georgia 30326 l

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Dear Mr. Morris:

The purpose of this letter is to obtain acceptance, or refusal, by your clients, W. George Hairston, III and C. Kenneth McCoy, to submit to a polygraph examination with respect to their compelled, sworn testimony to the NRC on June 25 and 30, 1993, respectively.

In response to a telephonic request, initiated by Messrs. A. Domby and J. Lamberski, of the law firm of Troutman, Sanders, Lockerman

& Ashmore, to Investigator L. Robinson, of our office, on July 20, 1993, this letter will serve to formalize Mr. Robinson's earlier efforts to obtain such acceptance or refusal. In addition, per the aforementioned telephonic request, the following information is hereby provided:

The purpose of these polygraph examinations is to determine the veracity of your client's compelled testimony, supra.

If your clients agree to take a polygraph examination, the specific examination questions will be made known to you and your clients immediately prior to the examination.

The general area of questioning, as in your client's compelled testimony, pertains to the facts and circumstances surrounding the  !

presentation of test data, by Georgia Power Company to the NRC, regarding the Emergency Diesel Generators at Plant Vogtle, Unit 1, immediately subsequent to the Vogtle Site Area Emergency of March 20, 1990.

The intended use of the polygraph results is as additional evidence in this investigation. obviously, no investigative conclusions are made solely upon the results of polygraph examinations, but are made upon the weight of all the evidence obtained. f 9310070009 96o827 5 '

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i In view of the fact that you have been aware, prior to the issuance of this letter, of this office's_ request for your client's acceptance or refusal to submit to polygraph exam, I would expect your client's decision on this matter within one week of the date of this letter.

, W J Y. Vorse, Field Office Director Atlanta Field Office of Investigations, NRC cc: B. Lavine, Troutman, Sanders, Lockerman & Ashmore k

._ TROUTMAN

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SANDERS

. ..LT . .". " U..?. . . . ^ .L ..t ^ J" NAT8ONSBANK PLAJA 000 Pf ACHTRE E LTRE E 7 N E Susit spoo ATL ANTA GEORGIA 30308 2216 iE L E PHONE 404 885 3000 F ACSML E' 404 886 3900 BmAN 8 LAVINE DIRECT 404 885 4170 August 4,1993 Mr. James Y. Vorse Nuclear Regulatory Commission Office of Investigations Region ll Field Office 101 Marietta Street, Suite 2900 Atlanta, GA 30323 i

Re: NRC Office of Investigations Prooosed Use of Polvaraoh Examinations

Dear Mr. Vorse:

This letter is written on behalf of this firm's client who has beten 'nterviewed by your Office, as well as clients of Messrs. Kirwan, Morris and Herdrix with their express permission. The purpose of this letter is to respond to yorn July 27,1993 letters to Messrs. Lamberski, Kirwan, Morris and Hendrix and to explain vehy we have advised our clients to declint the request to subject themselves to polygraph examinations.

On July 20,1993, Messrs. Larry Robinson, John Lamberski, and Arthur Domby discussed your Office's desire to subject present or former Georgia Power Company employees, including a former employee who submitted allegations to the

- NRC, to polygraph examination. Mr. Robinson agreed to provide a letter memorializing your request, as you have done. Your letter states that the polygraph examination will be used to determine the " veracity" of prior compelled sworn

testimony. In prior discussions your representative similarly indicated the belief that polygraph examinations would reliably detect " deception" on the part of the examinees. However, your representative was frank and forthright in discussions  ;

relative to his limited personal knowledge of such methods and, apparently, its limited l historic use by 01. >

Also, during this conversation, Mr. Robinson stated that the NRC's Office of I E'forcement will weigh the decision of our clients, based on advice of counsel, not l to subject themselves to these examinations. We suggest that the clients' decisions  !

are of no f actual or legal consequence, since no evidence supports the proposition that the physiological changes recorded during a polygraph examination are unique to I

" deception" and polygraph evidence, absent special situations which are not present in your investigation, is inadmissible in legal proceedings.

The legislative history of the Employee Polygraph Protection Act of 1988 and the statements of U.S. Department of Justice Manual (1989-2 Supplement) at Section 9-13.300 forcefully and convincingly put to rest the lay misperception that a polygraph can determine " deception" or " veracity." The legislative history of the 1988 Act's background states: '

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TROUTMAN SANDERS

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j Mr. Jamas Y. Vorse i August 4,1993 3

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There is little debate over the ability of these components of the j

" polygraph instrument to accurately register these physiological changes l l blood pressure, respiration patterns and electrical conductivity of the skin). But there is no evidence to support that these physiological l changes recorded during an examination are unique to deception. i Anger, fear, anxiety, surprise, shame, embarrassment, and resentment -  !

1 are some of the physiological states which can cause identical changes.

At best, the polygraph can claim to measure changes indicative of i stress; but neither the machine nor the examiner can distinguish  !

whether deception or another state of mind caused the stressed '

response with an acceptable degree of certainty. Despite the popular perception that the machine is a " lie-detector," most experts agree that '

  • . it is not. In addition to the charted responses, most examiners base their conclusion on the conduct of the examinee, the natural inclinations >

'of the examiner, and on statements made during the examination.

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Senate Report 100-284 to P.L.100-347, pages 41-42.

Similarly, the Department of Justice in its Manual has stated its agreement with the following conclusion reached by the Committee on Governmental Operations  ;

j of the U.S. House of Representatives:

! There is no " lie detector." The polygraph machine is not a " lie l detector," nor does the operator who interprets the graph detect " lies."  ;

The machine records physical responses which may or may not be i connected with an emotional reaction - and that reaction may or not be  !

related to guilt or innocence. Many, many physical and psychological factors make it possible for an individual to " beat" the polygraph .

i without detection by the machine or its operator. l 4 (

The consensus of ti.e scientific and legal communities, then, is that these C examinations lack scientific validity. The American Medical Association reportedly l 1-concluded that the polygraph can provide evidence of deception or honesty in a i'

' percentage of people that is " statistically only somewhat better than chance "

Senate Report 100-284, suora at page 41. Thus, the evidentiary reliability of polygraph examinations is not based upon scientific validity and, accordingly, lacks ,

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. trustworthiness.' E The potential use of any polygraph results by the NRC's Office of Enforcement l

is highly questionable. While i obviously cannot speak to that Office's view of '

' polygraphs, I can address the f.RC's standard on admiscible evidence. Only relevant,

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' The Senate amendment originally proposed for the Employee Polygraph  !

Protection Act of 1988 initially provided that employees or any prospective employee of a nuclear power plant could be polygraphed by licensees to determine honesty.

Nevertheless, the U.S. House and Senate conferees did not adopt this exception to l

the general prohibition of employers'. use of polygraphs, in job-related reviews.

Finger printing for unescorted personnel and a criminal history records deck were  !

believed _"much more likely to provide accurate, verifiable information about an  :

applicant than could be obtained from a lie detector test." House Conference Report

- No.100-659, page 13.

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TROUTMAN $ANDERS

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Mr. James Y. Vorse August 4,1993 Page 3 material, and reliable evidence is admissable in adjudicatory proceedings which address enforcement actions. 10 CFR I 2.743(c). As observed by the Department of Justice, the federal Court of Appeals which have considered the admission of unstipulated polygraph examinations have uniformly held the results as inadmissible.

These legal realities. based on due process considerations rooted in our Constitution, underscore the inappropriateness of your requnt for polygraph examinations.

Your investigation has addressed in minute detail certain activities and events which occurred over three years ago. Mr. Robinson, personally, has been involved extensively in the NRC's review of this matter since the summer of 1990.

Interviewees, in contrast, have not dedicated a substantial portion of their efforts over the last three years to this issue. It is only natural that recollections may not be as prccise as at a time more proximate to these events'. Moreover, Company employees are now privy to information and facts that they were not aware of in 1990. In answering questions today, it is impossible for them to separate their 1990 knowledge of events as occurred from knowledge possessed today and obtained over the past three years.

You have in your possession contemporaneous tape recordings of some relevant events or actions. From those tapes, and assuming a balanced review, reasonable inferences relative to intent can be drawn with respect to the allegation which yo; are reviewing. The general demeanor of certain witnesses can also be ascertained by statements in the relevant tapes retained by your Office, and in the other tapes, which 01 apparently considers as irrelevant, previously provided to Georgia Power Company. The collection and review of this evidence is far more probative than any polygraph examination. Moreover, if evidence of " veracity" becomes pivotal in your agency's ultimate resolution of this matter, I respectfully suggest that further review by a different Office or forum is the appropriate method of determination, not polygraphs.

In closing, I renew Georgia Power Company's offer to provide Mr. Robinson with information, including documents and transcripts of portions of tapes which your Office apparently did not retain or transcribe, and which are material, reliable and relevant to your inquiry. For example, relevant information is contained on some of the 201 tape recordings provided to Georgia Power Company in October,1991. The NRC returned the originals of the 201 tapes to Mr. Mosbaugh and apparently did not transcribe any of the conversations on those tapes. Also, a number of highly relevant documents were provided to the incident investigation Team in March and April,1990. These contemporaneous documents should be carefully reviewed and weighed by your Office during your investigation, since both NRC and Georgia Power Company witnesses can not reasonably be expected to recall the fine level of detail sought by some of Mr. Robinson's questions.

  • Without belaboring the point, the Office of Investigations consciously decided to forego interviews in 1991, based on " strategic and technical" considerations.

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TROUTMAN SANDERS i

.-24Ju:.~f :.s.. ? a.^. .: i Mr. James Y. Vorse ,

August 4,1993 .

Page 4 i

P Our clients look forward to an objective examination of all the evidence and a tirr.ely resolution of this matter. Please feel free to contact me at your convenience.

Very truly yours, '

<- l' . I F rb- .m >

n B. Lavine i

, BBL:cks '

cc: Mr. Larry Robinson Richard W. Hendrix, Esq.

Bruce H. Morris, Esq.

Bruce P. Kirwan, Esq.

Arthur H. Domby, Esq.

John Lamberski, Esq. '

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