ML20154P147
| ML20154P147 | |
| Person / Time | |
|---|---|
| Issue date: | 09/21/1983 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20081D710 | List: |
| References | |
| FOIA-84-61, REF-10CFR9.7 NUDOCS 8809300126 | |
| Download: ML20154P147 (72) | |
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[\"hg.') Transcript of Proceedings
?g// NUCLEAR REGULATORY COMMISSION DISCUSSION OF !LuiAGEMENT/ ORGANIZATION v '
AND INTERNAL PERSONNEL MATTERS
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l CLOSED MEETING Exemptions Nos. 2 and 6 i
'dednesday, September 21, 1953 I
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l Pages 1-73 Prepared by:
ANN 7:? TON 8809300126 000916 Cffics of the Secretary PDR FOIA C UtfMJ NCS84-61 PDR ,
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I UNITED STATES OF AMERICA 2
, NUCLEAR REGULATORY COMMISSION 3
N DISCUSSION OF MANAGEMENT /0RGANIZATION AND 5
! INTERNAL PERSONNEL f1ATTERS 6
7 CLOSED MEETING 8
l Exemptions Nos. 2 and 6 l 9 10 11 12 Room 1130 1 1717 H Street, N. W. I 13 Washington, D. C.
14 Wednesday, September 21, 1983 15 Pursuant to Notice, the Comnission met in closed session at 10:13 o' clock, a.n.
17 18 COMMISSIONERS PRESENT: -
19 NUNZIO PALLADINO, Chairman of the Comnission VICTOR GILINSKY, Commissioner 20 THOMAS ROBERTS, Commissioner JAMES ASSELSTINE, Commissioner l
l 21 , FREDERICK BERNTHAL, Commissioner '
22 ALSO PRESENT:
P. BIRD 1 23 H. PLAINE l J. McDERMOTT 24 l 25 l
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_R _0 _C _E _E _D _I _N _G _S CHAIRMAi FALLADINO: The major purpose for the meeting today is to discuss implementation of the Commission decision'to reassign Cummings. As a part of it, I think we 5 I a ought to determine if the Commission rating should be cone Then I 7
first, because'we a e doing it inthesametime-framhi # t4 would like to revie a proposed response to Markey on this 8 1 matter.
9 As you recall at a Management / Personnel Comm'ission 10 meeting on September \13. I said I would try to talk to Jim 11 Cummings on the mornin\g of the 14th and, if not, I would tell 12 i the Commissioners. I a,lso said I'would give you an outline of 13 the points I planned toicover.
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In preparation, I sought advice from Paul Bird, Herzel Plaine, Jim McDermott. In meeting with them, a number 16 of outations arose in my mind and information was obtained that I thought the Commission ought to know and, in deter-I mining the complications, I wanted to avoid the situat' ion we II faced last time when we made changes.
20 Someofthequeskionsthatcameupfromthedis-21 '
cussion with Bird, Plaine 'and McDermott on"the 14th was that, 22 one, I learned that reassignment requires indicating where the 23 individual has to go. The Commission decided that I should M 24 pursue this with the EDO, so I didn't really know where he wat 25 going to go.
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- . g It was pointed out that he needs to be given 15 days 2
- notice, although there are ways of getting around that by 3 .
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9 10 CuAIRMAN PA .LA0!NO: I think you shou.d know some of these things. Should we consider a Commission rating of Jim I3 Cummings? Certainly, the assignment should be consistent with 14 that rating and I don t know which is most consistent.
15 The ratings last year, for the period under con-16 sideration - ! think t was for the period under considera-I7 tion -- was excellent. He was granted a bonus; he was recom-I8 mended for a Presidential rank award; and this sudden turn-I9 around I think ought to be recognize ( by the Commisston. ,
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?% CHAIRMAN PALLAD 0: I'm just telling'you. The 23 rating we made last year w4s for the period that y n are 24 talking about and ! think t e Commission ought to be aware 25 that it can be grieved and w at tne possible outcomes can be.
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1 Then, we had spoken abuut hearing him and how that 2 //guu/
wev4-d h u p wi th th e re a s s i gnme n t wa s no t cl e a r t o me .
3 Now, there was a question that was raised which I 4
think har been settled. At that meeting, there was a question 5
of whether or not Cor. mission action adversely affects 6
Cummings' law enforcement retirement benefits and what effect 7 '
that might have. He does lose them but there is essentially 8
no reason why we have to be concerned about that.
9 Then there is a question of interim replacement. So 10 I propose that we get Paul Bird, Jim McDermott and Herzel Plaine to join us. Let them point out the things they pointed out to me and then I need some guidance on how you want to )
I3 proceed because, if we're going to reassign him, we need to know where we are going to reassign him to. That's,.the very ,
15 least.
16 It seems to me, before we COMMISSIONER GILINSKY:
I7 lir.e up all these horses and make decisicos, we ought to sit 18 down with Jim Cummings and explain the situation to him and 19 discuss what might be a reasonable arrangement. I don't want 20 him to be Director of OIA. I don't think we ought to just 21 ~
send a bolt out of the blue and assign him'to some distant 22 part of the agency. It may come to that, I suppose. He may 23 have some plans of his own. He may have some suggestions. He 24 may agree to some temporary 5ssigr. ment. l 25 CHAIRMAN PALLADINO: What I need to know is what do
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I you want me to tell him -- that he's being reassigned but I
. 2 don't know where he's being reassigned to. That's not a 3
reassignment.
4 COMMISSIONER GILINSKY: It depends what the views of the Commission are. I don't know whether they are the same, 6
today, as they were a week ago and I suppose it depends on 7
what Tom thinks.
8 COMMISSIONER ROBERTS: Well, my view is the same. I think he has lost the confidence of the majority of the 10 Commission and I feel that.
COMMISSIONER GILINSKY: Joe, then I think you ought 12 to tell Jim that and that we don't want him to --
I3 CHAIRMAN PALLADINO: I want to know where we're 14 going and what this means.
15 COMMISSIONER BERNTHAL: I think what Joe wants.to 16 do , righ t now, is to indicate what some of the consequences of '
I7 the decision --
18 CHAIRMAN PALLADINO: I want to implement --
19 COMMISSIONER ROBERTS: Procedurally. All right, 20 we'll investigate. -
11 COMMISSIONER GILINSKY: I don't think there is 22 anything wrong with our knowing what some of th'e implications 23 are but I don't think we ca.' plan out --
14 CHAIRMAN PALLADINO: No, i need to know the thrust 25 that you want to follow. Your thrust was that we are really
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not going to purely reassign him. We'd lost confidence in him
- 2 and his judgment, and I think his ability to perform effec-3 tively.
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- COMMISSIONER ROBERTS: That's what I'm saying. You 5
paraphrased very well what I think.
6 CHAIRMAN PALLA0fN0: I do find it ouzzline why ye, 7 } p< to 4 4 p M 'T went. on the one Jcd-f; where there was not even s u e c o.tt_.fpf 8
an adronishment to all of a sudden we went t o s a v i n o w t_(id n ' t
' want him in the nosition. but that's a separate -- ,
COMMISSIONER ROBERTS: Things change. You get more 11 information. You see his reaction. You see how he comports 12 himself. You see how he very thiniv. _ threatened vous 1.f.inc I3 that offensive. I'm sorrv.
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CHAIRMAN PALLADINO: All he did was -- .
15 COMMISSIONER ROBERTS: Oh, no, now, Joe.
16 Cli AIRMAN PALL ADINO: I'm not trying to justi'y --
I7 (OMMISSIONER ROBERTS: He's oot t h i s v e i l e _d _ ,t,h r e a t I6
.about,he wants the transcriots and sg.forth Now, listen --
19 Victor said it very well. I think it was /ictor or maybe it 20 was Jim.
21 COMMISSIONER ASSELS, TINE: Yes, it"was Victor.
22 COMMISS!0NER ROBERTS: Cummings could have come and 23 said, "Gee whiz, fellows, maybe I screwed _up_,b.ut.!_'m going to 24 b_e__a cood soldier and we'll work all this out." He didtJ t. do Sb2 t t e'-
25 h Me took a verv adversarial + M and I f mLt.b&.
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I unacceotable. and that is the reatgn why. ogjptjng_a,Li,nner a),
me, that I didn't want to admonish him originally and new I 3
want to can him. '
4 tiog +rpe:.MW!d If this is tr:ascr+ bed and' Cummings has comported 5
himself in a manner that I think, for me at least, is not 6 x 4 w s.I:
satisfactory, and(we have to face that issue.
7 CHAIRMAN PALLADINO: I think the only thr.ea.t -- to 8
put it another way, the threat he made was that he's orecar_ed <
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_to defend himself.
10 COMMISSIONER ROBERTS: Fine, and there are proce-11 dures to do that. I just don't think Cummings -- and I'm the 12 one who has come 180 degrees on this. I don't think Cummings 13
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has conducted himself in a satisfactory manner, I'm sorry.
14 CHAIRMAN PALLAn!NO: Now, I would like to,make sure
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w at steps I take are concistent with what the Commission wants to do and I think you oucht to have some of this back-II ground and then go right ahead and do it.
IO Last time, I did move promptly, almost within. the I8 hour in some cases, and found myself not on as solid ground as 20 I thought I was.
21 COMMISSIONER BERNTHAL: I think w'e need to hear the 22 consequences of the action. That's really the ' thrust, !
- 2) think, of what Joe --
24 CHAIRMAN PALLADINO: Then I'll proceed to carry oct 25 the Commission's wish.
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COMMISSIONER ASSELSTINE: _W ell. if we have a mijnr4t 2
, that fe.1e the way Tam described _it, I don't have any prob 1.em -
3 with calling in Paul Bird and Herzel and saying just that.
4 Saying, *Here's the way the majority of the Commission feals.
5 You tell us what the options are, the best way of going about 6
dealing with it, and is there any way -- call Cummings in and 7
just sit him down and say, "Look, this is the way we feel" --
, as Victor has described it. See what their answers are.
I COMMISSIONER ROBERTS: Let me see if I understand something. Let's be frank. Victor, what are you saying, that II faced with this, Cummi.ngs. might_jujt_do the centlempt iv thin.g ,
12 1,n_d_resian p,r fade away? I mean, let's be f rank. What ara I3 you saying?
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IN COMMISSIONER GILINSKY: I guess what I expected is 15 that he would stay on in some temporary ca'pacity --
16 COMMISSIONER ROBERTS: -- until he finds something.
17 COMMISSIONER GILINSKY: -- until he finds something.
38 We're not -- at least, I'm not inclined to do him in, per-19 sonally. ! just don't think he ought to have that position to and if it means being attached to Dircks' office or some other 21 office or some special category, fine. ,
22 COMMISSIONER ROBERTS: Put, to use Ahearne's ex-23 pression, you are going to give him the opportunity to degradt 24 gracefully?
25 COMM!$5!0HER GILINSKY: Well, I would not like this
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i 'l to end up in a great controversy with grievances and'that sort of thing. I think, by dealing with him in a manner that doesn't --
4 COMMISSIONER ROBERTS: That we could, perhaps, 5
preclude that.
6 COMMISSIONER GILINSKY: Yes.
7 CMA!RMAN PALLADINO: But, incidentally, he can 8
grieve it and there are a lot of options.
CQBKISSIONER GIL_tNSKY- Wall. if he can. but_that 10 ge t3 h i m i n_t o d i f fhulhloo . If he wants to go and get _
11 another job, then he's somebody that's involved _in grievanc.e1 12 and that sort of thing, and is that the sort of person you ,
want somewhere,tlj e .
14 COMMIS$10NER BERNTHAL: I agree. I think. that there shculd be the option for him to see the handwriting.on the I0 wall. The opportunity for him to do that.
I7 COMMISSIONER ROBERTS: Which I think is what you're II driving at. '
19 COMMISSIONER ASSELSTINE: Yes. l 20 COMit!SSIONER ROBERTS: Fine. I don't have any 9
21 problem with that.
22 CHAIRMAN PALLA0!NO: The other issue 'is, how do you 23 want to handle that? Do you want me to tell him sone of the '
24 reasons? Don't I give him any reasons? Say, "The Commission 25 has lost confidence," and give no reason, or -- i
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I think, eventually, we're going to end up giving 2
reasons. If there are reasons, then I ought to make sure I understand the reasons.
4 CCMMISSIONER ROBERTS: I don't think it's necessary 5
to give the reasons. I think the fact there is a lack of 6
confidence in his ability to serve the Commission is suffi-7 cient grounds.
8 COMMISSIONER GILINSKY: If he wants to make appoint.
' ments with the individual Comnissioners, he's perfectly at to liberty to do so. I'd be happy to talk with him.
COMMISSIONUR ROBERTS- I wouldn't.
12 COMMISSIONER GILINSKY: Well, I guess I would. I mean, he's been here a while. I would talk to him.
COMMISSIONER ROBERTS: I would not. I foresee the 15 fact that there may be a grievance procedure and so forth.
16 COMMISSIONER GILINSKY: You may be right.
17 COMMISSIONER ROBERTS: I would net talk te him.
18 COMMISSIONER GILINSKY: Maybe, on reflection, I 19 wouldn't but, in any case, he could certainly seek --
20 CHAIRMAN PALLADINO: Well, depending on the proce-21 dure that's followed on grieving, we may be"put in the post-22 tion of having to at least talk with an examiner.
23 COMMISSIONER ROBERTS: Fine, that goes with it.
24 COMMISSIONER BERNT$AL: ! think what Victor is 25 saying is that -- at least, I assume. I don't want to put s
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words in your mouth. You might sit down with him before you 2
even say something as strong as "the Commission has lost 3
confidence in you," because that's throwing down the gauntlet, k LUlIl in a sense, and simply point out how difficult it would be for 5
him to continue to function with doubts that hang over the 6
situation and that he, given the opportunity, may arrive at 7
the conclusion that you all would like him to arrive at.
8 d6 COMMISSIONER GILINSKY: I don't think that would happen, actually.
COMMISSIONER ROBERTS: I would like that to happen, II but I don't think it will. But I would be willing to give him that opportunity.
I3 COMMISSIONER BERNTHAL: Well, he can do his own
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n research and talk to the Commissioners if, indeed, that's the l
15 appropriate thing, to find cut for himself. l 16 COMMISSIONER GILINSKY: I would be inclined to tell I7 him that a majority of the Commission feels that he ought not l I8 {
to continue in his position but we're going to work out some j l
19 arrangement while he works out some other alternative.
20 CHAIRMAN PALLADINO: Well, I don't think it's going 21 -
to be that easy.
22 COMMISSIONER ROBERTS: I suspect it w'on't. I'd be 23 willing to give him that opportunity.
24 CHAIRMAN PALLADINO: I still suggest, why don't we l 25 hear the comments of Paul Bird and Herzel and then we can come i
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back and you can give me whatever cuidance you want.
COMMISSIONER GILINSKY: So concerned about the 3
Commission's time.
- COMMI S S ION E R M""'"' L .- S4. o .<' s t ?
5 COMMISSIONER GILINSKY: Just our time.
6 COMMISSIONER ROBERTS: ! think the three of us come 7
from three different directions on this issue, but you have tt 8
face up to it.
' COMMISSIONER ASSELSTINE: Yes. The reasons may var,-
10 among the three cf us with different nuances, I
COMMISSIONER ROBERTS: What did you do, did you jus say you defer?
I3 Look, he's the --
COMMISSIONER BERNTHAL:
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N COMMISSIONER ROBERTS: I'm not giving you.a hard
" time. I just want to understand.
30 COMMISSIONER BERNTHAL: No, no, I understand. From II my standpoirt, I came into this --
18 COMMIS$10NER ROBERTS: Victor used to badger me whe-19 I first came. I'm not badgering you.
to (Laughter.)
- 21 COMMISSIONER BERNTH,AL: Pretty easy on me.
22 CCMMISSIONER ROBERTS: What did you do, just defer 23 to Joe?
24 COMMISSIONER BERNTHAL: He's the i3-line manager on to d c 25 =1se? on this issue and I'm going to defer.
m 13 (Whereupon, Mr. Bird, Mr. Plaine, and Mr. McDermott I
entered the room.) '
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CHAIRMAN PALLADINO: Do you want't,o sit there. ,
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least I can hear better. g(J COMMISSIONERROBEggj Don't be m for not hearing 5
well. . don ' t hea r we11, ett'he r.
CHAIRMAN 4PALLADINO: My wife insists I get a hearing 7
aidprettysoon.k, I
COM,MISIIONERROBERTS:Well, they're in, now.
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/HAIRMAN PALLADINO: nedccu6 what?
10 f e'/ COMMISSIONER ROBERTS: They're in, now.
II (Laughter.)
l' CHAIRMAN PALLADINO: The Commission is interested in im 13 comments you have on the various options we have wtTK pro-14 ceeding with Jim Cummings and what you see as the c:.rsequences 15 of each of the options. So, it might be well if you began, 16 Paul, and the Commissioners will interrupt with questions as 17 you cover different points.
18 MR. BIRD: Okay. As I understand the consideration, 19 it is that Mr. Cummings, who is a member of the SES, would be 20 reassigned within the SES.qu' fte only requirement related to 21 that is that he would receive 15 days notice prior to the 22 reassignment and then that action can take place. It falls W
23 into the category of what we would call directed reassignment.
24 There's no adverse action required by that action and it 25
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doesn't present a problem in terms of accomplishment accept to 2
identify the job that he would be reassigned to and to con-3 sider the implications of filling the job that he is vacating.
COMMI S!0NEP ASSELST!tlE: But you're talking about, 5
Paul, taking him from the job he has now and finding him 6
another permanent ob in the agency and saying, "Jim, we don't 7
want you to do this job anymore. We want you to do this job.
8 This is your new jo ."
9 MR. BIRD: That is correct, yes.
10 CHAIRMAN PA LA0!NO: And one of the issues was identifying the job to which he was to go.
COMMISSIONER OBERTS: ! want to make sure I under-stand. The Commission an do this without any basis?
MR. BIRO: Yes sir. .
15 C0flMISS!0NER ROBERTS: I n a n a rb'i t ra ry a n d c a p r i -
16 cious manner.
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(Laughter.) \
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COMMISSIONER ROBER S: No, I want to understand 19 this.
20 MR. BIRD: Certain1 tomeore could allege that it 21 -
WLt. arbitrary and capricious an then there --
22 Now, who would that somebone COMMISS!ONER ROBERTS:
23 be?
24 MR. BIRD: Someone'woul be the merit system --
25 COMM!$5!0NER ROBERTS: M Cummings.
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MR. BI : Oh, certainly.
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. COMMISS NER ROBERTS: Give us the mechanics. Come 3
on. Don't leave o t anything that's there.
MR. BIRD: I wouldn't do that. Assuming that there 5
was such an allegati n, then Mr. Cummings could appeal on the 6
basis of that allegat on to the Merit Systems Protection Board 7
alleging that it was d ne as / punitive action and for unwar-8 ranted reasons. Then a third party would consider that and 9
cone back with a propos remedy to the Commission.
10 COMMISSIONER R BERTS: Now, wait a minute. Keep 11 going. What might likely be a proposed remedy?
MR. BIRO: To re nstate him in the job.
COMMISSIONER ROBE TS: Well, you' re not the Herit g
Systems Protection Board. I understand that. But this is a sensitive positioni it report to the Commission; requires our greatest confidence. Is not p rely a lack of confiderce --
II would that not be a sustainable sufficient reason for the II removal of this individual, whet er it can be documented by IS this action, that action, whateve ?
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! mean, this position is sensitive to * ,w ctions 21 '
and if we no longer have confidene, , trust, in that a rson't 22 ability to act for us, would that n t be suffic'ient reason?
23 . MR. BIRD: Yes, sir. It c rtainly is reason to 24 consider reassignment or other action 25 COMMIS$!0flER ROBERTS: ! thi k that this is the b
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1ssue.
2 MR. BI 0: Now, reassignment, as I have discussed 3
it, doesn't take on any aspect of adverse-type action.
4 There's nothing al verse to the individual in a reassignment 5
from job A to job B within the SES.
6 CHAIRMAN PA!.LADINO: What if, in the process, we 7
say, "We're transf rring you from job A to job B because we've, 8
lost confidence in our judgment in this position and in your 9
ability to perform e fectively in this posittor?
MR. BIRD: Well, the only argument that could be made there is, one, t at if, in that case, I have failed to 12 \
perform or, as a matte of conduct, have violated something,
" wish to know what thosei reasons ire, and the.n I could questior a those reasons, again, i the avenues that are available, 15 includingtheMeritSystkmsProtea.tionBoard,astothe 36 motives for the action. \
17 CHAIRMAN PALLA0rp0: Well, this is very important
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18 4 because that is the way thht I understood the instructions, 19 was tha' ! .
to tell him that the Commission has lost 20 confidence ...s judgment nd his ability to perform effec-21 tively in this position and hen, as soon as ! say, that, that i 22 ted give him reasons, and I on't know whether it's wise to
, 23 give reasons or wise not to g ve reasons.
24 MR. PLAINE: Are yo'u staggesting that, by saying r 25 these things in cen9ection with the reassignment, you give s
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I rise to a orsible interpretation of an adverse action, is 2
. that it, P ul?
3 H . BIRD: Yes, altkough the action taken would not 4
be adverse i nature and would not allow a remedy process by 5
itself. A re ssignment action within the SES, from job A in 6
the SES to jo B in the SES, is not an adverse action, al-7 though the sta ement that there is a loss in confidence could
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9 MR. PL INE: Hight.cor W signal that.
10 MR. BIR -- might inter that there sks something 11 adverse. However, again, the Lction taken would not be 12 adverse to ,the ind vidual.
'3 MR. PLAIN : So you are suggesting that, while it
-=> g might be easier and ight be safer from the standpo, int of not 15 j creatingabrouhahatggivenoressor. By giving a reaten, we 16 Jon't necessarily alk into tiia trap of an adverse action l
II complaint.
II MR. BIRD: Tha 's correct.
IS CHAIRMAN PALLAt ': Even if you gave no reason, 1
20 would he have no basis for grieving? !
1 21 MR BIRD: The rea signment action' is subject to the l
, 22 grievance process. ! ? -- l e me withdraw that.' l
.) I think, in terms of the grievance process, the
% reassignment -- an implicatio would have to be raised that 25 the reassignment was for punit ve reasons and, therefore, it l
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woul d dr1nnt uestioned the reasoning of 'sving made that 2
reassignment CH IRMAN PALLADINO: So, if I give him the reasons, then he h'as a basis to question them?
5 MR. IRD: He could question it.
CH A!R AN PA'.L ADINO: Supposenoreasonsaregivh 7
except it is in he best interest of the Government, does he S
i have any basis fo grieving, then?
9 MR. BIRD: Not that I can set on the surface, 10 although, you know, n allegation can be made.
COMMI!3 ION BERNTHAL: He can argue that the 12 reasons are other tha stated because they went through 13 l,Lilf 6td) somethirg/ exRtly aiial gous to that over in .00E with Maxine 14 Savage, and I know a lo about that case. .
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CHAIRMAN PALLA INO: The impress' ion I got was that he did have at ability to rieve except that he would have to U make the allegations.
II VR. BIRD: Yes, si .
IS CHAIRMAN PALLAD1NO Suppose he did, then what 20 happens?
21 MR. SIRD: Okay. the case that *.e is grieving, I,
22 the gi'tevance would occur with n the agency. The agency woult j 23 assign a third party examiner.
l 14 COMMISSIONER ROBERTS: And who would this person be*
l 25 MR. BIRD: It vould be an administrative law judge.
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9 l 1 l In the ord ary casa, those judges are generally retired l 2
- l. administrat ve law judges who are available to the agency.
3 Th t third party would then consider the evidence and would co. back to the Commission with a recommendation.
5 l COM ISSIONER ROBERTS: Suppose the Comnission did l 6 l not like the r commendation?
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MR. IRD: You do not have to accept the recommenda-l 8 l
tion. You simp have to consider the recommendation and ther l 9 g w\i take the action , hat you feel is warranted, but it allows _a N 10 \
third party consideration to occur, l 11 \
l COMMISSIONER ASSELSTtNE: Does he get to stay in the l 12 l j o b w h i l e t h a t p r o e s s i s g o i n g w/ehva or can rd he be reassigned?
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MR. B IRD :j No, he would not have to stay in the job 1:e dt. ring the Frocess.gi 5
CHAIRMAN P LLADINO: Would that end it, if the I
Commission doesn't take the recommendation?
I MP. BIRD: Y,es. , g; g COMMISSIONER SSELSTINE: CL % t A4-_Lt t o t h e l II Merits Protection Board or anything?
20 MR. BIRD: Well, again, if he could allege punitive 21 reasons and he would hav to make a case with the Merit 22 Systems Protection Board, if they would accept,'they would 23 appresch it a little diff rently.
24 CHAIRMAN PALLADI 0: Let me follow. You say he 25 could appesi to us and ask or an examiner, but could ht, in 1
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1 parallel r separately appeal to the Merit Systems Protection 2
Board, an that takes it outside the agency?
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. BIRD: Yes. He would have to make an allegation that there as some prohibit personnel practice or other 5
cause for th s action to occur.
6 CHA RMAN PALLADINO: Well, he could allege that.
7 MR. IRD: Yeq.
8 COMMI SIONER BERNTHAL: Bat, certainly, he surely
' would not have a winable case for that particular job, it to seems to me, beca se, even if it's only the perception of the Commission that hi effectiveness will be impaired, and it I
will be impaired i the Comrtission has doubts about his ability -- has lot nfidence, so to speak, for that slot, M is enough G! a reaso . .
15 COMti!S$!ONER ROBERTS: I think 'too.
16 COMMISSIONER SSELSTINE: Do you disagree with that.
37 Paul?
18 MR. BIRD: No.
IS COMMISSIONER AS ELSTINE: Basically, eur conclusion 20 is that, for whatever vari us motivating reasons, the majorit) 21 l '
of us have reached the conc usion that we Just don't have 1 -
22 coniidence in his ability to do that job and we feel h 23 somebcdy else has to be put that position.
26 COMMISSIONER ROBERi : Is that not defendable?
15 MR. BIRO: Yes, sir, barring any nther allegation o 2-
- - _ _ - - - - - - - - _ - - - --- - -- t
.. 21
. I 1
. resolution of an allegation that could be raised, I'd say 2
certainly. I mean, reassignment is available.
3 C0 MISSIONER ROBERTS:. We're not going to cut his 4
pay; we're g ing to give him another job; we're going to keep 5
him employed. I think this is a highly sensitive position and 6
if a majority of us don't have confidence in this fellow, 7
we've got to f ce up to that.
8 CHAIR AN PALLADINO: Paul, suppose he alleges that 9
our action was crimination for his whistle-blowing acti.vi-ties?
COMMISS ONER ROBERTS: That's another consideration.
That's certainly ot from me.
3 MR. BIRD Certainly, the whistle-blowing provisions 14 could -- again, if an allegation is made along thos.e lines, 15 then the remedy for that is tvailable to him to make that 16 allegation. \
17
\ f k + M *ll COMMISSIONER ASSELSTINE: Kr*+-reiag to have to 18 provide enough proof o convince some other independent judge 18 on this third party , t that was what really motivated the 20 Commission's decision.
, That some improper motive --
21 CHAIRMAN PALLA INO: This is why, if we question his 22 judgment, that's the judgment that we might be ' questioning 23 COMMISSIONER GI INSKY: But we a ren' t.
24 MR BIRD: Ch, w aren't.
, 25 CHAIRMAN PALLADIN : No, now wait a minute. The l '
t
'2 -
1 22 1
I words I hav were that we had lost confidence in his judgment and his abil ty to perform effectively in this post. So, if I use those wor s, he could imply that it's a judgment --
4 COMM'ISSIONER ROBERTS: Just say that we hase lost 5 \
confidence in his ability to perform this jcb.
6 i COMMISSIONER ASSELSTINE: That it's a very sensitive 7 i position.
8 CHAIRMAN,PALLADINO: Well, I still think you need to 9
give reasons.
COMMISSIONER ROBERTS: I don't t'nink you have to.
CHAIRMAN PALLADINO: I wish I understood why you lost confidence in hislob,.
3 COMMISSIONER GILINSKY: It seems to me this _i,s, somethino for the Commission to discuss la.tt r . , .
15 COMMISSIONER ROBERTS: Let's not --
I6 CHAIR!!AN PALLADINO: Let's heer what other options I7 ttt %b ux 644--H- h a . . .
IO MR. BIRD: Well, there are a couple of othei con-IS siderations that are sort of peripheral but they could have a 20 bearing. One is that the occupation that he is in is an law 21 enforcement occupation that gives him entitlement to early 22 retirement. It's the nature of the oc:upation that dictates 23 . that. From that ndpoint, the job to which he might be l 24 reassigned might not 9 1ve tha't benefit.
25 CHAIRitAN PALLADINO: \But is that a real problem?
I
\
2- l
23 1
. MR. BIRO: No, sir.
2 HAIRMAN PALLADINO: I ga ther, af ter you looked into 3
it, you did 't feel it was a problem.
MR BIRO: I don't believe it would be a problem in 5
this case.
6 COM SSIONER ROBERTS: Would you explain to me what 7
you just said?
8 MR. B D: Yes. There are certain positions that
' enti.tle an incumb nt to an early retirement bencfit.
COMMISSI NER GILINSKY: Does everyone in that office
have that?
12 MR. BIRO: The investigators -- the criminal inves-I tigators in that offi e and in 01 have that benefit being in 14 that particular occupation.
15 COMMISSIONER ILINSrY: We have no criminal invas-30 tigators.
U CHAIRMAN PALLA0 NO: We may not he,ve crirtinal II criminal invwstigators.
investigations, but we hay IS MR. BIRD: Yes, e've raised that with OPM.
20 COMMISSIONER GILIN KY: When did that happen?
21 MR. BIRD: It happe ed long before I came. We've 22 raised that with OPM several t mes and had them'look at the 23 description of the jobs and the 've agreed that those po-24 sitions can be entitled to that rly retirement.
25 COMMISSIONER ASSELSTINE: Is the head of 01 in ene M
. . l 24 f -
\
l 1 !
l of those positions?
2 i
. MR. BIRD: Yes. :
3 ,
MR. McDERMOTT: If you supervise criminal investiga- i 4
. tors, yott retain that benefit. j 5
COMMISSIONER GILINSKY: Does that apply to Commis- ;
6 i sioners?
7 (Laughter.)
I 8 COMMIS$10NER ROBERTS: In other wor s, what are you !
9 saying? If we transfer him, if we reas' sign him, to a positior l i 10 l that is not so classified, he will lose this ability -- l 11 MR. BIRD: -- to continue to accrue service toward '
12 '
that early. retirement. i 3
COMMISSIONER BERNTHAL: How many years has he gg accrued? . l 15 l MR. BIRO: I looked at his record yesterday, and it 10 looks like approximately 13 years which would leave 7 years tt l
1 II be accrued. So, as ! say, it's a peripheral --
18 l COMMISSIONER BERNTHAL: It's not like he was' one j I9 year away from it.
20 COMMIS$!ONER ASSELSTINE: That's right.
21 -
CHAIRMAN PALLA0!N : What's that?'
22 COMMISSIONER BERNT AL: It's not like he is one yeat 13 away from it. - ,
s i
'Well, I think he takes that 24 CHAIRMAN PALLADINO:
i 25 risk when he is in the SES servite. i
\ l
\ l
\\ .
. I l
i
25 1
M , BIRD: Yes. .
2 CF IRMAN PALLADINO: What other options are there?
MR BIRD: Well, certainly there are the options to 4
take an actio n nat re and then you 5
have a differe thatwouldbeadverse)Etibl ae t remedy process and, notice process and that 6
sort of thing.
CHAIR N PALLADINO: What do you etean, removing him from the SCS?
I MR. B1R : Well, yes, that certainly.
IO CHAIRMAN PALLADINO: But we're not proposing that.
II
! don't think the C mmission is proposing that.
12 COMMISSION R ROBERTS: No.
I3 COMMISSIONE ASSELSTINE: No.
14 CHAIRMAN PAL ADINO: The Commission proposed putting 15 him somewhere else.
\
16 MR. BIRD: Agajn,the15-daynoticeistheonly 17 requirement in that case of a job move within the SES reas-II signment.
19 CHAIRMAN PALLA0! 0: Does he have any appeal to GAO' 20 MR. BIRD: Well, think if -- again, i f an al.lega-21 tion related to whistle-blow ng came out of'this, then he 11 could approach that agency wi h that allegation'.
23 COMMIS$10NER BERNTHA : He can approach GAO?
24 COMMIS$!0NER ROBERTS: I don't believe that-25 COMMIS$10NER BERNTHAL Not GAO.
J. .
l 26 l 1 COMMISSIONER ROBERTS: I'm not denying the fact that 2
he can do t.
3 C MMISSIONER BERNTHAL: He can get somebody from 4 i Congress to ask GA0 to look at it.
5 i MR.'b!RD: Yes.
6 \
COMMf@$IONER BERNTHAL: Or GA0 might --
7 .
MR. BIRD: He can invoke the whistle-blowing --
8 COMMISSIONER BERNTHAL: Sua sponte.
' CHAIRMAkPALLADINO:Can he appeal directly to GA07 10 MR. BIRD Not technically, no.
11 COMMISSIONER BERNTHAL: As a practical matter, he 12 \
could, through whateVer contacts he might have, get the staff to initiate some inve tigation. I can't imagine they would dc
.n g that in a case like that. It would have to be a congressional 5
request, don't you think?
MR. BIRD: Yes.
I7 COMMIS$!0NER ASSELSTI.,E: I think so.
II MR. BIRD: Yes, they generally are responding to I3 congressionel requests.
20 COMMIS!IONERBERNTHkL- On something like that, I'm El not so sure -- \
l 22 MR. BIRD: Straight w istle-blowing,'again, could gi 23 to the Merit Systems Protection Board special counsel, if M 24 was iattiated. I 25 CHAIRMAN PALLADINO: Now\, if the Merit Systems h
i 27 I
Protection Bo.rd accepts the case, then what do they do? Oo 2
. they appoi t an examiner?
M , BIRD: Yes.
4 CH 1RMAN PALLADINO: Then it goes outside the 5
agency.
MR. BIRD: Then it is outside the agency and that 7
agency is emp ered to overturn an action if a case is made.
8 CHAI AN PALLADINO: Another cuestion. What is the 9
relationship of a performance appraisal to any action 'we're 10 about to tane?
11 MR. BIR : Well, certainly the action, if it has 12 performance implic tions, should be reflected in the appraisal 13 process. Tne summa y rating should not be totally different 14 from the action tak . There should be some statement or other consideration f whatever issues are driving the reas-signment in the perfo mance outcome.
II It's more of a timing issue. If, in fact --
II COMMISSIONER OBERTS: Hold on. Let me ask you II something. What isthe{astperiodthatCummingshasbeen 20 evaluated.
21 '
MR. BIRD: He ha been evaluated lust recently.
22 COMMISSI0i;ER R0B TS: Well, what's "recently"? Be 23 . specific.
24 MR. BIRD: Well, I think the Chairman completed his 25 evaluation approximately 30 d s ago.
. . l
.. i 28 I
CH IRMAN PALLA0!NO: Yes, but my evaluation is not 2
. final, 3
COMN!SSIONER G!LINSKY: We're talking about when his 4
a final evaluati n.
5 t
CHAIR AN PALLADINO: The final we haven't done, yet.
MR. 8 D: His final is to occur Friday, as !
7 understand it.
B COMMISSJONER GILINSKY: Commissioner Roberts is 3
asking for in wha period was there a final --
COMM!$$! NER ROBERTS.
i; I speak only for myself, but.
(dcutc so you all ur.dersta d, I think Cummings self-destructed C-'m; the past three mont for me. So , I use a n , I don't have any I3 problems about sayin , "You can't do this in the face of an 14 excellent appraisal 1 st year." That's nonsense for me and wnat made me change my mind, I think, are his actions of the pastfivetosixmnnths\havedestroyedmyconfidence,andit I7 has nothing to do with h'is previous performance. Tetally II separable.
II MR. BIRD: Yes,\! understand. Again, the timing of 20 this reassignment would occur at the end of this particular 21 appraisal cycle in which t e Commission is'about to take
\
22 action to conclude a final erformance outcome.'
23 If, by any means, his thing became a matter of 24 third-party consideration, t third party would consider all 25 the facts related to the case including the perfornance
)
L --
I appraisal.
2
'. COMMISSIONER GILINSKY: Paul is saying you shouldn't 3
give him another excellent.
CHAIRMAN PALLADINO: I'm not sure what it is we !
5 should do. One possible --
6 COMMISSIONER ROBERTS: I've got a tremendous idea. !
7 CHAIRMAN PALLADIN0: One possible rating might be 8
unsatisfactory. I'm not proposing rating. I'm just going i "suppose we do this," "suppose we do that." What's th'is relationship to the action. If we say unsatisfactory, what's II 12 MR. BIRD: In an unsatisfactory rating, there are a
'I certain set of rect;1rements that need to take place to deal !
with that, including a mandatory reassignment and a detailec 15 basis on which the reassignment was taken,'ar.d a written I6 statement as to how that person could improve his performance.
37 Those elements would be required if, in fact, there is an II unsatisfactory performance. '
IS CHAIRMAN PALLADINO: Does the Commission have to 20 have ressors as to why it's rated unsatisf actory?
21 MR. BIRD: Yes.
22 CHA!RMAN PALLA0!NO: Would those have to be on the 23 rating document?
24 MR. BIRD: Yes, there would have to be some reasons 25 giver, in unsatisfactory, s
2
30 l
1 COMMISSIONER BERNTHAL: Why.does the rating process '
1 of his job performance somehow have to reflect the reasons for 3
- this.particular what really isn't an administrative management 4
action? His "performance of his duties" could be largely l 5
flawless, it seems to me, and yet, because of extraneous 6
factors of perception in a job like that, as Tom has poi 3ted i 7
, out, it is the way he has dealt with certain things.
4
' 8 COMMISSIONER ROBERTS: There is nothing inconsistent
' with a quote -- and I'm not using the precise terms on the way 10 I you check the blank, but a good performance evaluation and his II I removal from this position are not inconsistent.
12 MR. P.!RD: Now, I would not .. I would agree with I3 thet, you know --
1 ..- , l 1 I" COMMISSIONER ROBERTS: I wouldn't give him an 15 unsatisfactory, if I were filling in the blanks.
I6 MR. SIRD: )
Let me tell you thea' ens 4.4.
ec.1os.ec m,roblem that wi j 17 dealt with i n t h e p a s t **-mii s .hiq. One, it does create l 18 some problem, again, in third party, f IS COMMISS!0NER GILINSKY: There's the thing. We're f
20 not talking about meeting milestones, which is basically what ; l j 21 those performance appraisals have to do with, a..d that really 22 is what Tom is saying, but you can meet all the' milestones :
23 and, you know, all of these contracts you made ahead of time 24 and you turn out 45 reports, and everything else, but your 25 relationswiththeCommiss{onersmaybesuchthat it is 4
i
31 I
unacceptabl 'k'E 2 to continue.
9t0 D M BIRD: Under the circumstances that you have 3
here --
4
- C_H AI.RMAN P ALL. AD.INO:
Can you explain ho..w it comes
- a. bout?
How can you say his performance is good and then say _,
we don't think he can perform effectively in the job? That,'_s 7
an anomaly to me'.
8 COMMIS$10NER GILINSKY: I didn't say his performance 9
was good, but I said there is not necessarily any inconsis-10 s tency --
11 CHA!RMAN PALLADINO: I think there is great incor.-
12 '
sistency. That's what I'm having' trouble with. Could you
" explain why there is no inconsistency?
COMMISSIONER GILINSKY: I don't want to get into
" details with evaluation.
I don't think this is the place to discuss it or the audience in which to discuss it.
II CHAIRMAN PALLADINO: I agree. We will discuss it I8 later but I think we ough*, to know -- you made the statement I9 in this audience and I'd like to know what it is you have in 20 mind if you say there's no lin,kage. '
I would like to under.
21 stand why there isn't any linkage.
22 COMMISSIONER GILINSKY: I said it is not necessarily 23 inconsistent with having met the,various milestones and so on.
. \
24 and turn out so many -- they are airly nechanical crtegories 25 there, or at least many of them are, and that may have nothing z-
32 I
to do wit whether or not you want to. retain him in that 2
position. Particularly in a position that --
3 .wd C MMISSIONER ROBERTS: JLan I a g re e wi t h t h a t ,
k CH IRMAN PALLADINO: Paul said it ought to reflect ,
- 5 some consiste cy.
l COMM SSIONER GILINSKY: Well, to the extent that 7
l your reasons r ate to those categories, then they ought to bc 8
consistent. I ree with him entirely on that, but they may S
not.
10 CHAIRMA PALLADIN0: Shall we make a performance --
11
! think the proble is timing. Right now, we are in the l process of making o we're supposed to make a performance
'3
'ating by presumably the end of the month. I've forgotten the 14 actual date. Maybe ew\'re already late.
15 l Now, should we make it independent of this action ov' before this action? D you have any recommendations on those l
II regards?
10
\
MR. BIRD: Are you speaking to me?
1 l IS CHAIRMAN PALLAD NO: Yes.
20 MR. BIRD: Agai , I think it's a matter of some II consistency related to the timing of the events. Certainly, 22 under the circumstances tha we have where ther'e is a reas- <
e .c o.
- 2) ,
signment th1T-is not adverse in nature, there doesn't have to 24 be, necessarily, a relations ip between the action and the 25 performance outcome, l
l L :
l
33 e
1 If there is anything that's adverse inferred which 2
might ent il eventually a third-party consideratier, the 3
k situation e've had in some cases it that the administrative law judge, r whoever is the third party, is looking at a 5
situation wh re someone has been moved or recommended for 6
l disciplinary ctior or reassigned for disciplinary reasons l 7 j against a perf rmance appraisal which says that person per-8 i formed in an ex ellent or outstanding manner and that creates S
an inconsistency We don' have those circumstances here, as I under-stand it.
12 COMMISSIO ER BERNTHAL: For example, you might'give I3 what, for all intent and purposes, is an excellent appraisal
~
but might simply citesone or two things -- inter-pe.rsonal 15 \
relatiorships or perhaps relationships witi, superiors er i
16 something like that -- khich, in this case, for that job, is II 90 percent of the ball game and it would not be viewed.
IO nevertheless, overall as n unsatisfacter, perfotmance of the II job. It's just that, for hat job, those categvHas are so 20 terribly trmortant and it's a management decision and the 21 Commission can argue that th t's sufficient reason for that 22 job, 23 z '. 6 Si, / / r . - . ~~. v.
~ q..gE ,
.. [ - E- i T. ..
L*~
24 ~
' ~ 2 *y y w. .% . U. v . . '" . . - r r s .~ , ,~ r .
L d, cx r d.id gr, ,,s ri e e u . . . ,, W
.ww m-.
l 34 i l
l 1 l have to be a connection; however, if there is something of an 2
adverse nat're --
3 C0 MISSIONER GILINSKY: You're just saying that you 4
ought not to ay one thing in one place and the opposite 5
somewhere als .
MR. IRD: That's correct. And again, the timing --
7 COMM! S!0NER GILINSA . We can't argue with that. I; 8
think we've been around this about eight times.
I COMMIS IONER ROBERTS: I think so, too.
10 COMMISS ONER GILINSKY: We all understand what tha II situation is.
12 CHAIRMAN ALLADINO: How do you understand the I3 situation, Vic? Th t we don't nave to do the performance N
rating or, in the pe forman';e rating -- ,
15 COMMISSIONE, G!t.!NSKY: That you' deal with it 16 straightforwardedly a d honestly. If you're saying one thing >
17 in one place, you 54y he same thing in the other place.
18 CHA!RMAN PALL O!NO: I agrse with thet. W e 1.1, l
19 should -- okay, I would ot like ',o double-talk. Any other 20 items? You've talked ab ut considering a replacement. What l 21 do we have to do there? an we just pick somebody and say, j 22 "You'll be acting as cf th s date"?
23 MR. BIRD: Yes.
24 CHAIRMAN PALLA0!N ': After you have told the other i 25 person he is no longer actir. . There would have to be 15 ,
l
35 l
. e 5 l.
days, gues , to give him a chance to clean out his desk or,M 2
whatever.
3 l MR. IRD: Yes, there is a required 15-day notice l 4 !
period. .
i 5
CHA!RM N PALLADINO: So, from the day he's told, 6
he's gos 15. days - calendar days?
7 MR. BIRO* I think it's 15 calendar days. I'll have 8
to check that.
COMMISt!OQER GILINSKY: I must say I can't believe 10 \
that we cannot tell somebody that he is no longer head of the 11 \
Office of Nuclear Rea tor Regulation or whatever on this day.
12 It's one thing to send them off somewhere else and say he's 13 got to appear somewhere else the next day, but I can't believe 14 thatwecannotmakethe\changeinadirectorshipinstantly.
15 PR. BIRD: An employee, in such a situation, could be detailed immediately to another job. The final rtassign.
s .
II ment action has a requirec 15-day notice )tned.
II COMMIS$!0NER GIL$NSKY: I mean, you can't expect II somebody to turn up somewhe\ re else instantly and that's 20 understandable but as far as changing someone in* e toffice, !
21 would think we could do that.
22 CHAIRMAN PALLA0!N0: hat's the purpo'se of 15 days 23 aside from if he's moving from h re to Chicago or someplace 24 else? I could see tha,t. i 25 MR. 3!RD:q w Fifteen days is a requirement of the 7
I 36 1
i i Civil Ser ice Reform Act to allow some notification period l 2
- l. prior to tle immediate changing of jobs. I think for the 3
reasons that you mentioned. It is to clean out their desks, 4
get things n order, and prepare for that move in an orderly 5
fashion. ,, ,
6 CH IRMAN PALLADINO: Now, are we isp;;,,i.iny-the 7
purposes if w detail him, recognizing that we are not de-l tailing him be ause we have an urgent need someplace?
' COMM S!0NER GILINSKY: ! think a man can stay in 10 l his office for 5 days but someone else is director. I don't 11 see any problem - or acting director.
CHAIRMA. PALLADINO: Well, we're talking about a reassignment.
So, if you reassigning him from here to there, t I guess the reassi, ment, if it doesn't take place.for 15 15 days, it means he ha n't left his old assignment.
16 COMMISSIONE BERNTHAL: But Paul is saying you can II detail him and you can detail him even though he's still l II sitting at his desk.
IS COMMIS$!0NER R BERTS: Innediately effective.
20 COMMIS$10NER G LINSKY: Right.
21 COMH!SSIONER BERNTHAL: True? l 22 COMMIS$!ONER G!t INSKY: Well, if you want to, you 23 can make someone else acti g director and you can make hin 24 deputy director for 15 day or whatever else you want to do -
25 or investigator.
l b
l _ . _. . --. _ ._ ._ .- - ..
37 COM SSIONER BERNTHAL: Especially for that job.
, You shouldn't c 15 days and have a lame duck in that office.
I think there is every administrative reason to avoid that situation.
COMMISS ONER ROBERTS: Let ne ask you a question, which you may not ave addressed -- I don't knew what your instructions were. Have you looked at what other positions might be available n this agency that might be suitable for Cummings? '
MR. BIRD: es.
COMMIS$10NE ROBERTS: Could you give us some discourse on that?
MR. BIRD: I' e looked at vacant positions, specifi-cally, and one that occ rred to me as a pessibility which, I believe, he would qualif is a currently vacant Deputy Direc-tor of the Safeguards Div sion in NMSS.
MR. Mc0 Erit 0TT: 'It's worth noting that there has te
\
be a link between his qualffications and the position to which he is formtlly assigned. Y u can't make him an engineer.
COMMIS$10NER ROBER S: That's reasonable.
MR. Mc0ERM0TT: Yes MR. BIRD: There ar n't too many options beyond that, at this moment. However certainly you could censider COMM!sS!ONER GILINSKY: Who is the Director, is it l
l l
h l
o .
38 Sob Burnett?
I MR. IRD: Yes.
2 COMMI S!0NER BERNTHAL': Have you talked to him?
3 MR. 8 RD: I have not talked to anyone.
O COMMIS$!0NER ROBERTS: And properly so,
\
5 COMMISS10NER BERNTHAL: I guess you would not, yet.
' CHA!RMA PALLADINO: Nor have I, because it --
7 COMMIS$!O ER ROBERTS: Sure.
8 COMMISSIONER BERNTHAL: Of course not.
9 MR. BIRO: rtainly, if there is a position that is 10 there that would be created and acceptable to the agency, that 11 position could be esta lished.
12 COMMIS$!0NER R BERTS: What is the status of the 13 agency's filling that vac nt position? Has it been advertisec 14 for a vacancy and where does it stand?
15 MR. BIRD: That position has not been active for 16 some while. John Davis has had some thoughts about what to de 17 with that position and it has, for sont time, been what we 18 call an inactive position. There's nothing being done at this 13 point.
20 CONMIS$!0NER ROBERTS: Nothing is being done in an 21 - endeavor to fill that position? .
MR S!RO:
22 tiot at this M k Pa.4 M Ca f M
Pau , in reassignmee%
23 CHAIRMAN PALLADIN0: 4- a p e r s o n 24 suppose we say, "We're going to rea sign you f rom your presen-25 k
i O O
. 1 l
l l t l position,to inother position we have in mind but we want to l I
lay some grou d work," my problem is, if we assign him to a s 2 position and at's announced without having any input from 3 have to work with him, I don't think that's the people tha [
good pershnel ractice. I've got the problem of telling him !
5 reassigned but not being able to tell him !
he is going to b where he's going. Can you tell him he's rea,ssigned without I telling him where ie's going?
O MR. SIRD. Well, I think certainly someone could !
L I question that becau e we're all assigned to positions in the (
10 agency. In order fe you to be out of the position you are f 11 in, you have to be as igned --
12 COMMIS$10NCR ROBERTS: Everybody's got to be some-l 13 where. [
14 MR. BIRD: Eve ybody's got to be somewhere.1 l
15 CHAIRMAN PALLAD NO: But the problem is, if I go 6 1
16 talk to Bill Dircks and sa,, "Look, we want to assign him ,
i l 17 here," and furewarn him -- '
a ;
l 18 COMM15510NER R08ER1 : And Dircks screams and bleeds 1 13 and says, "I don't want him t ere."
l 20 CHAIRMAN PALLADIN0: Atide from that, if I tell him j i
21 . the Commission wants him there nd alert him, I was advised l l
22 not to do that until at er ! tal to Cummings. So I would be !
)
j 23 telling Cummings he was going som where where they're not j
\
gg expecting him. Is there any probi m in that? I see a probler )
25 !
l l
l .
40 rf there.
I MR. BIRD: Well, certainly,aI think your statement.
1 from a personnel practice standpoint,'is not the best practice 3 to proceed in that fashion, b
It wou'Id be better to establish that this move will 5 occur and alert he people on the receiving end that it is 0
abouttooccur,anpthenproceed--
7 CHAIRMAN,PALLADINO:dhI wouldn't tell the people on 8 the receiving and th t it's about to occur until I told him 9 he's going over there. At least, if I follow the instruction!
10 as ! understood it last time. So,I'vegotaCahY~22. I've 11 got to tell him where h 's going.
12 COMMISSIONER G LINSKY: It'snotaCa'ch7?,2.
.A 13 CHAIRMAM PALLA0 NO: Well, I've got one.
14 COMit!SSIONER GILINSKY: It will work perfectly well 15 CHAIRMAN PALLA0!!. : If I tell him where he's going 16 then ! 5 ave to instruct EDO to accept him.
- M b l 17 COMMISSIONER GILIN KY
- ,
We've written 2 program tha 18 will run.
13 CHAIRMAN PALLADINO: Okay. I don't know how to 20 handle the program, honestly. I would have done this a litti 21 differently.
22 COMM!$$10NER G1LINSKY: These things can be settled 23 in a ceasonable way and I think, n part, one of the reasons i 24 we're looking at all these possibi ities is that we don't war 25 l
+
s 4i to do any personal injury to the man. So, in part, there's the matter of trying to accommodate him in various ways and s 2 you're assuming that he will act to defeat all of these 3
efforts.
O CHAIRMAN PALLADINO: I'n not talking about that.
5 g m talking about the pure mechanics that I think I have to I
face up to. If I'm going to tell him he's got a reassignment, 7 l've got to tell him where he's going.
8 N'w, if I tell him this is the job he's going to, 9 fine --
10 COMMISSIONER ROBERTS: I understand your problem.
Il CHAIRMAN PALLADIN0: Then I go tell Dircks, "You're 12 going to accept him." Now the problem is, if they say, "Well, 13 we'll accept him because the Commission told us to. We don't 14 think it's the right spot for him," and he doesn't think it's 15 the right spot for him, I still would say, "Okay, but you've 16 get him."
17 COMMIS$!0NER ASSELSTINE: Paul, let me ask you this:
18 Is there any problem that you see in the Chairman calling in lg Cummings and saying, "The majority of the Commission has 20 decided that they don't have confidence in you in that posi-21 , tion and they want to reassign you" period.- We don't know 22 what your plans art. Whether,'under those circumstances, you i
23 want to stay with the agency for a longer period of time er 24 whether you want to look oisewhere,or whatever. We'd like to
\
25
i.l hear your thou hts. We've got some ideas in mind on where we I
might reassign ou but we'd like to hear your thoughts. Oc 2
you have ideas n what position you think you might want to 3
fit into or do y u want to continue on in another position in 0
the agency for a longer term or would you like just a short-5 term assignment s that you can begin to look elsewhere. Is 0 there anything we g with having that kind of a discussion 7 with Cummings befo'e we make a decision on what specific 8 position we want to reassign him to, to try and get his 9 thoughts and ideas o,n what he might want tc do?
10 COMMISSIONER ROBERTS: It sounds like a very reason.
11 able approach to me. Now, whether that fits with the system, 12 I don't know.
13 C0MMISSIONEkASSELSTINE: That's what I want to
\
14 know.
15 COMMISSIONER OBERTS: Sure.
16 COMMISSIONER ASSELSTINE: Is there anything wrong 17 with that in the systen?. I mean, why do we have to pick a 18 particular spot before we talk to him that, you know, "Jim, we 13 don't want you in your pr\esent position. We want you over in
\
i 20 this ona," before we evenit alk to the guy and find out --
\
21 ,
MR. BIRD: Only if you want to do.something instan-22 taneously. In this case, I certainly wouldn't see a problem 23 having that conysrsation, s ying, "Our intent is to reassign 24 you. What are your thoughts " ,
i 25 ,
} '
- 43 1
. OMMISSIONER BERNTHAL: He might have a better idea. I 1
C MMISSIONER ASSELSTINE: He wouldn't have to do it
\ right that m nute.
CHA RMAN PALLADINO: Is that what you say is an k
acceptable per onnel practice?
5 MR. B RD: Yes.
CHAIRM N PALLADINO: To go ahead and teli him that?
7 MR. BIR : Certainly.
O Are you telling me I have to go CHAIRMAN PALLADINO:
I -- if it's a reassi nment, you've got to tell him where he's 10 going from to where e's going to.
Il MR. BIRD: his would not --
12 CHAIRMAN PALL DINO: Well, what does this say?
13 COMMISSIONER SELSTINE: I think, if I understood 14 what Paul was saying, be re we actually move him, we've got 15 to nake the decision of wMere he's going. There's rothing 16 wrong with having thet fir t meeting, putting him on netice 17 thatthisiswhatwe'regoigtodo,andblicithisideasand 18 thoughts on it and then, one we've gotten these, we have to 13 make the decision, here's the position we are going to put hin 20 into, and that's when the reas ignment really takes effect.
21 COMMISSIONER ROBERTS: In the interim, you could 21 call in Dircks or Burnett or wh ever and say -- ;
i COMMISSIONER ASSELST!h : What do you think about 23 24 it?
25 f k'-
. 1 44 MR. BIRD: That would appear to me to be a prudent way to procee but it's not an immediate --
2 COMM S!0NER GILINSXY: Well, it seems to me the I 3
sensible way to proceed, in part. After all, we're going l through all this in order to take his own interest into 5
accountf oud I W"U #
0 MR. PLA! E: Of course, the key question he'll ask 7 is where are you going to reassign him.40 0
\
CHAIRMAN PALLADINO: That's one of the things we 3 want to discuss with'htm.
10 MR. PL AIN EIsn't
. :\ that the way a man makes a
\
Il judgment as to whethen, "I'm happy to s tay," or whether "I'm 12 not happy to stay."
13 CHAIRMAN PALLADINO: Is that one of the items you ,
14 would discuss with him -- possible reassignment?
15 I'm not clear what we're entering. Are we entering 16 a negotiation stage?
17 COMMISSIONER GILINSXY: , Discussion and then making a 18 final decision.
13 CHA!RMAN PALLADINO: Well, when you say, "The to Commiss:-n has lost its confidence in your ability to perform 1
21 - in this position effectively " that's a judgment.
22 COMMIS$10NER GILINSKY: Well, no, you're announcing i that he's not going to stay where he is. Now, the question it 23 24 25 >
b-
e 45
. C AIRMAN PALLADINO: We're not going to keep him.
I C0 MISSIONER GILINSKY: Right.
s 2
, CHA RMAN PALLADINO: That's a decision.
3 COM SSIONER GILINSKY: Right.
N CCMM S!0NER R0! RTS: Yes.
5 COMMI S!0NER ASSELSTINE: That's right.
' CHA!RM N PALLADIN0: But we haven't decided wh,re 7 he's going.
8 COMMISSI NER ASSELSTINE: That's right. ,
9 CHAIRMAN ALLADINO: And we'd like to talk to him 10 about various possib lities of where he's going.
11 COMMISSIONE GILINSKY: Right. I don't see any' 12 difficulty in mentioni g that the Deputy Director's position 13 is a possibility but th t you have not discussed it with 14 Dircks and ycu don't kne what tne possibilities are.
15 COMMISSIONER R ERTS: Fine.
16 CHAIRMAN PALLADI:0: That's the first question he'1' 17 ask me, "Why is this being one?" We will discuss that later 18 on.
17 COMMISSIONER GILINS Y: Another alternative, as Jim 20 pointed out, is to simply cook up a kind of a temporary 21 position, if he would prefer th t, and --
22 CHAIRMAN PALLADINO: at's subject to negotiation.
23 MR. BIRD: Well, again, the reassignment within the 24 SEE would entail having an establi hed SES position.
25 S
- 46 Certainly,kherewouldhavetobeabonafide--
\
I COMMISSIONER GILINSKY: Can we regard the same 2
position as temporary one -- Acting Deputy Director.
3 Well, you said we could COMMISSIONER ASSELSTINE:
N create one if we wanted to.
5 MR. BIRD: There's more to that than just saying --
0 Okay.
COMMISSIONER ASSELSTINE:
7 C0 tim!SS!0NER GILINSKY: But there are positions and ,
8 I think we can come to agreement that he if just occupying it ,
3 temporarily or look upon it as a more permanent arrangement 10 and he will just continue to work in the agency in a differen ,
11 capacity. The choice may be a different one.
12 MR. BIRD: Yes. There was -- again, going back to l 13 your question of what was available. There was one other i 14 position that might appear to offer an option and that was th i 15 Deputy Director of Inspection and Enforcement, which is 16 currently vacant, although there are certain technical quali-17 fications there. If that position were cast as a strictly 18 managerial position, then it is currently vacant, although 13 there is some activity related to that under way.
2o Again, I've been trying to cover all the alterna-l 21 - tives.
22 COMMISSIONER GILINSKY: Another possibility is.
23 aren't there people on temporary detail or taking courses one 1
24 place or another -- Industrial' War College -- or --
25 7-
. 47 ggd M , BIRD: W e h a v e o n e p e r s o n -etrt" o n s a b b a t i c a l o u t I
of the SES.
2 COM ISSIONER ROBERTS: 3rian Grimes.
3 MR. IRO: Brian Grimes.
' CHAIR > N PALLADINO: What does he have?
5 HR. BI : He's in the Office of Inspection and
' Enforcement. l 7 C0ftHIS$!0 ER G!LINSKY: Where is he, now? l thaalor.d 8
itR. BIRO: He's on c. sabbatical in (Jaa=>t)', but )
1 S that position is, in ffect, what we call double encumbered at 10 this point. We have s meone in that position while he's l' there.
12 COMMISSIONER GILINSKY: I was thinking of possibly 13 just takingsometimeatkheIndustrialWarCollege. There's
\
l 14 always the IAEA. i 15 (Laughter.)
16 COMMISSIONER ASSELSTINE: He's an accountact, right?
'i 17 COMMISSIONER BERNTHAL: The Siberia of --
18 CHAIRMAN PAlt.ADINO: \e'shadalotofFBIex.
H 13 perience.
20 COMMISSIONER GILINSKY: Raise the level of --
21 , COMMISSIONER SERNTHAL: It shows you how civilized g; we've become. It's not Siberia. It's IAEA.
23 MR. BIRD: That type of ssignment, you know, would 24 not be an actual reassignment withi the SES Another 25 h
4g conside ation, here, is that soneone currently in the SES 1
could va ate a position and, by a musical chairs approach, 2
you'd hav the whole agency at, you r.new --
3 OMMISSIONER GILINSKY: The Safeguards Deputy Director po ition seems to fit the bil'l about as closely as 5
any.
6 COM IS510NER ASSELSTINE: Yes.
7 MR, SIRD: Of the current vacant positions, that was
- O
\
the one that se med to be closest.
9 COMMISi!0NER GILINSKY: Yes, I think that's probably 10 right.
Il CHAIRMAN ALLA0!NO: Does that involve investigative 12 functions? I gather it does.
13 MR. BIRD: ertainly, with the fact-finding ac-
\
14 counting and the backgr'cund that he has had would relate to
\
15 those duties, g 16 COMMISSION ER Gli!!!S KY : Right.
\
17 CHAIRMAN PALLADINO: Okay. Any other questions, 18 comments, additions?
19 MR. BIRD: Again, I think another consideration 20 should be, if there is going t be an acting, who that acting 21 will be, and the timing on the hing is important and should 22 be taken into account there and, of course, if you want to 23 fill that job, the job would need to be vacated and either we 24 would find someone who could be bre ght in, who is currently 25 l
. .. 49 in the Es government-wide, or we recruit for it and go I
through rather long process of actual advertisement, re.
N filling of the position) dnwhichcase,the
. 2 cruitment I acting per on in that job would be there for some time, k
5 6
7 0 jf r W
\/ A //
py y/ ,]/
'o 13 14 15 16 17 18 19 20 21 22 23 24 25
50 1
.. 2 3
4 5
6 7 ;
8
+
S 10 11 COMMISS NER ASSELST!NE: First, we'll have this 12 discussion with Her el.
13 COMMISSION R ROBERTS: That's right.
14 MR. PLAINE: Just as well.
15 CHAIRMAN PALL DINO: Okay, any other points or 16 questiers?
l
..l 17 COMMISSIONER RO i!RTS: What's going to happen? I j 18 nean, do we --
19 CHAIRMAN PALLADINO We're going to meet. I just 20 want to make sure, before the leave, if you've got any .
21 questions. -
22 (No response.) .
- 2) CHAIRMAN PALLADINO: Al right. Thank you. l (Whereupon, Mr. Plaine. . Bird, and Mr. Metermott l 24 25 z'
- 51 left.the room.)
CHAIRMAN PALLADINO: Okay. Jim, you made a pro-2 posal. Could you repeat it, again?
3 COMMISSIONER ASSELSTINE: If I can remember it. I think it was pretty much what Victor suggested at the nutset.
5 I would suggest that you call Jim in and say that the m6jority ,
' of the Commission has decided that they don't have confidence 7 in his ability to carry out in the performance of the parti-O cular duties on that position.
S COMMISSIONE?. ROBERTS: Excuse me, if I may edi-10 torialize - "period."
11 COMMISSIONER ASSELSTINE: Period, right.
12 CHAIRMAN PALLADINO: The Commission no longer has 13 confidence --
14 COMMISSIONER ASSELSTINE: -- in his ability to carr) 13 out the duties of that position. If he asks for why they feel 16 that way, just say, that was the judgment that the Commission 17 reached, and that was all.
18 COMMIS$10NER ROBERTS: Absolutely.
13 CHAIRMAN PALLADINO: I think that's arbitrary,and 20 capricious. I think such summary treatment.of employees who 21 have been arcund here for a while and who have tried to de 22 their j o b L t h i n L_thit .LL n a t i t 4 v o l y_untece ,i tabl e. co n du c t by 23 the C e rm i s ti cA tJlL 5.m y . ' W e ' v e_ eet ne reatent ,but we ' p,pg.ciag gg to say you can't,_do the job _ effectively.,"
25
52 I
COMMIS$10NER ASSELSTINE: I think we've got reasons !
1 but they may be diffe" F . ;
g n i t '. , s,e ;
CCI't"!!!CNEP. RM ERT!: They certainly Trbitrary and !
3 capricious on my part. [
COMMISSIONER BERI: THAL: Well, is it not legitimate 5
to do it either of two ways -- either for the adverse opinions .
I to be summarized andr e nyey them or for you simply to 7
suggest that he speak to the Commissioners. There are some t
I probleras with the latter procedure. I l
I CHAIRMAN PALLA0!NO: !thinkasummaryofthemoughtl 10 to be given at the time he's told.
11 COMMIS$!0NER BERNTHAL: In a pretty general sense, !
12 it seems to me, he ought to understand,4 win a job like that, i 13 if there is substantial doubt in the mind of the Commissier, j 14 as a body, he oughtn't to want to stay in it, f L
15 COMMIS$10NER GILINSKY: _! t seems to ra r e a s o n.4).l c [
16 # cr.,y e u dust to say that thal.ts.. t h e wi s h o f t h e .C omm i s si o n .
f 17 CHAIRMAN PALLADINO: That is what? t i
18 COMMIS$!0NER GILINSKY: That is the opinion and wish!
13 of the Commission.
20 CHA! AMAN PALLADIN0: I can express the wish of the !
21 - Commission <
22 COMMIS$10NER G!LINSKY: Andifhewantstopursueit{ ;
23 with individual Commissioners, it's up to him. !
i 24 CHAIRMAN PALLADINO: Well, I'd like to know what the :
15 4
- - - - - _ - . - _ =
i
- 53 I
r entat _ a r t. P12ase tell me. I can find thines that he_needs 2
c o u n s e l,.i n g_o,n,. I can find things that ! c af _ f a u,1,t,, h i m o n .
3 But I think you can find th_at of any individual _, but as far as _
the investigations that he's done since we've clarified. what cet cut o' t h e. e n c i n d .o f 5
he,,_is doing, internal or external --
very furrinett -- I think he's done a credible 4ch. l 7
On audits I think he's done a very good job._,,I B
think, basically d e's done excellent on that.
9 Now, what is it we're ((.13.at.is.fied Wij,hi I. Could to say the veiled threat that's implie4 by y.que last s ut. tace,in t rti s..l e t t e r..... _Th a t C one L d o .r e me mb e r .
12 COMMISSIONER GILItlSKY: I must say, that, for me, 3
really drew a line as far as any possibility of. retrieving the 14 situation. I just can no...loncer .t r u 1 _ 1 h t._ c u v i n .Lt u i t i o n who, in those cire.unstances_us. pts to war with th_e,,Qommission - - . . ._
16 and threatens us.
17 'W h i c h ! th'rk essent' ally.is COMMiss10f: E L30 B E R' 5 :
IO what he has done.
IS COMMt_SSIONEr Gil.INsKY: Yet 20 COMMISSIONER P0BERTS: Now, through all the FOIA Il request stuff, the Applegate stuff, you pursued that nuch mor.
22 diligently than I did. I was willing to give hin "the benefi 23 of tne doubt" about that, but there was rcom for question. N 24 argument about that.
25 COMMISSIONER GILINSKY: Sure.
- 54 1
COMMISSIONER ASSELSTINE: Yes.
2 COMMISSIONER ROBERTS: Given the subsequent actions 3
of his --
4 CHAIRMAN 2ALLADinn- Wha _^ a c t i p r. t ? Pl*At* _t.el.l..me.
5 CaltBliS I0 lier ROB E R T S : I think he's rakine a threat 6
to you and the Commission on these damned transcripts.. ,t_
7 t h i n k a l l. t.h.i..,,,. b u.s
- i.n.e.. s.s . .a b..o u t. ..
. .w.h.a.t.
. .i .s .i t ? IsitMalschand Barry and the A,1erican_ Express card, I mean. ! t_h i n k _a_l,,,1, t h a t 9
,it_u ff_ .i. s o u t r a c t g u s,.
I think he's just casting around. He's i 10 a loose cannon.
11 CHAIRMAN PALLA0!NO: I agree he needs counseling.
12 Now, maybe the counseling --
3 COMMISSIONER GILINSKY: I would say, in a position 14 like that, just as in the General Counsel's position, you 15 don't want to have t; htye a whole litt of miles:enes that the 16 guy didn't meet or whatever. If you don't have confidence in II the guy, you don't have confidence,,in the guy. Just ss i r,..
IO y o u r. p2 ttana l as s i s t a n t_, if the chemistry is wrong, the II chenist y is wrong, and veu don't h a y e t o e *Ala j a_t o y o u r 20 personal assistant why he's no_,long,er go,ing,to b,e your per-21 . J C J_s_is. tant and why he's going to be something else. It 22 isn't because he missed a bunch of --
23 CHAIRMAN PALLADINO: But I would know the reason, 24 there.
25 COMMISSIONER GILINSKY: Well, we may have differert
55 1
rwasons, to some extent overlapping, but ! don't think that it 2
is a good use of the Commission's time for us, now, to spend 3
k CHAIRMAN PALLA0!NO: Oh, I think the Commission is 5
going to spend an inerdinate amount of time responding to 6
whatever actions take out, but that's beside the point. If we 1 7 4
don't want him, we face that actinn. <
8 COMi'ISSIONER ROBERTS: Let me say, in another way 9
that I thir.k Victor was eluding to. No holds barred, take you 10 four ft.llows' staff. There some people on each of your staffs ,
I would be thrilled to work for me. I can think of indivi-duals on each of your four staffs that in no way I would' II employ. But that doesn't -- that's a matter of how you do i business and your style and if a majority of us do not have (
15 confidence in Cummings, that sufficient unto itself. That's Ib my view.
17 You know, the SES business COMMISSIONER GILINSKY:
II was set up in order to give the top people more flexibility.
II It seems to me backwards -- -
- to COMMIS$10NER ROBERTS
- Is that not so?
21 -
COMMIS$!0NER ASSELS11NE: Exactly. I agree Tom.
l 4 22 COMMISSIONER GILINSKY: -- it seems to me backwards 23 to the mechanics of that to impede makiag changes.
24 CHAIRMAN PALLA0!NO: If he asks what are the reasons 25 for it, should I cite the one that certainly I can cite, j 1
i !
I i
i
- ,- 56 1 $0$5ky COMMISSIONER.D^:?: I^. I don't think you are ob-2 ligated to tell him.
3 C r w t u t w r k W Q c p H H ,'
rno comment. py5 CHAIRMAN PALLADINO: Well, I say those are anong the 5
things he may want to bring up in the discussion with the Commission. That would be better.
7 COMMISSIONER SERNTHAL: Are we going to meet with 8
hin at a group? I 9
CHAIP.HAN Alt.ADIN0: Well, that was the next thing I l l 10 @d '
warced to ask and I thought }+ was part of your proposal. Why 11 don't we listen to s me more of your proposal?
COMMIS$!0NE ASSELSTiNE: What I was going to 13 suggest was that you m et with hin and say that this was the 14 decision that the Commi sion had reached. The Commission bas some possibilities in mi d. I wouldn't have any problem with
, youmentioningthiDeputy\Directorof the Safeguards Division U positier. I would say that the Commission, before it nade a II decision on a reassignment 'or him, wanted to get his thoughts II on the matter.
20 COMMIS$10NER ROBERT : On the reassignment matter.
21 '
COMMISSIONER ASSELST NE: On the reassignment 22 matter, that's right. Good poi \nt, And I would ask him, say,
\
23 "In light of this, this is one osition that the Commission 24 was thinking about. Wanted to he'r from you as to whether 25 you've got other ideas,et\other ces tions. Whether, in light o b
l ,
5?
I the fact that you're coing to be reassigned, you think that you would have an interest in staying on with the Commission
. 3 in another capacity or whether you think you'd prefer to look 4
elsewhere and that we'd be willing to try te accormodate your gWd W to 5
interests."
6 $
COMMISSIONER ROBERTS: ook elsewhere - and I'm 7
speaking only for myself and see if there would be any agree-8 ment. If he wanted to leave the agency, we'll be very accor-9 medating about giving him a period of time to make those 10 arrangements. I'm saying ! would be will to do that.
COMMIS$!0NER ASSELSTINE: I agree.
CHA!RMAN PALLADING: Now, that's dif M ent from I3 saying --
, COMMISS!0NEP GILINSKY: But not as director of that
.5 offge,,
3 II COMMISSIONER ASSELST!?;E: But noc as Director of II O!A. that's right. He still gets a reassignment, l II CHAIRMAN pal.LADINO: Well, he's got that option II anytime, once you reassign him, i
20 COMMIS$10NER ASSELSTINE: I guess I'm just asking 21 '
whai his preferences are.
22 CHAIRMAN PAlt.ADIN0: I thought you were going to 23 keep him in a position until he found another job. Thdt was WY!M<' ' '
6 t111Ut t ie's 25 COMMISSIONEi ROBERTS: ! think we've made a decision
- 58 I
to dispense with his services as Director of 0!A and, having 2
made that decision, we .'ustlivj; .tu'w,&
- : th e c o n s e q u e n c e s .
. 3 CHA!RMAN PALLADINO: .W hat else was a part of your --
COMM155!0NER AS$ELSTINE: ! think that was about it.
5 CHAIRitAN PALLADINO: Now, are we going to arrange tc 6
here him?
7 COMM!$5!0NER BERNTHAL: As a group or as recom-S mending that he call up the Commissioners separately, I guess.
' COMM!$$!0NER ROBERTS: I would only be willing to hear him as a group. I am not going to hear him individually.
COMMIS510NER AS$ELSTINE: ! suppose, if you feel more comfortable with tnis approach, Joe, we could just all meet with him and just get it all done at one time.
CHA!RMAN PALLADINO: No, I don't mind doing my job.
15 I want to make sure ! represent the majority of the Ccenissici I'
properly and then I would encourage a meeting with him.
II COMMIS5!0NER ROBERTS: Whst sort of meeting?
Are II you talking about all of us with Cummings?
II CHA!RMAN PALLAD!NO: All of us with Cuemings.
to COMM!$$!0NER A$5EL$ TINE: I'm not real terribly 21 '
interested in getting into a long drawn-out' rehash of, you 22 know, "Well, why did you want to get rid of me?" "Why do you
- 2) believe I have to be reassigned" -- that kind of thing.
24 COMMI5510NER ROBERTS: I don't think that woulo te 25 -eeproductive.
gg i
1 COMMIS$!ONER ASSELST!NE: If he wants to talk about '
2 the reassignment question, about where he goes, with all of us 3
together, that's okay with me. ;
COMMIS$!0NER BERNTHAL: He is certainly free to talk 5
with individual Commis sioners without(dt..'being told that, !
6 gue s s . Tso'4 kl. 2 ,
7 i
CHA!RMAN PALLADINO: If the Commissioners don't want
- 8 to talk to him, he'll never find out -- ;
9 t COMMIS510NER BERNTHAL: I f m.U tdon't want to talk to 10 him, we're all free not to talk to him. .
il gi l CHAIRMAN P LLA0!NO: By golly, if I worked u.,this l 12 ajency and I saw the mmission remove a guy for reasons they'
'3 don't want t g vs and fudged t h e ,p tiLa.,tf o n,_t o, b e w h a t e v e r !
judge it to te- I wcA1.dn work (or ttt,s i agency arty longer.
O I just say, "Ah ha, I'm going to leave,' and that's going to be your better pe6ple who are going to think that I7 way. This is what bothers ne. I'm thinking as much about the II peoplewehaveremainh1g, ,
)
II COMMISSIONEA,,iR IM p !_Wt.llo therg's,another to possibility which is tha_t,Je,op1h w!11 ,ta)e.,n.o,t.e.of wh.y,he came f
21 -
a f ou.1,,of, t h e C o mmi s s i o n a n d mi g behave dff ferently in the 22 future. \ '
23 CHAIRMAN PAlt.A0!NO: ! wi,sh ! knew why. !
i i
) 24 COMM!$$10NER GILINSKY: Well, you must have a clue, l
- i 25 Joe. .
\
!, \ i i
\
l **
N;(\ ~7]) * '2 - l j l
(
l I
60 1
l CHA!RMAN PALLA0!NO: What?
2 i COMMIS5IONER G!!.!NSXY: You must have scee hint of '
- , 3 it. , -
5 G 04p /
'[
7 43
, 1/ y .
l 9 l
in COMM111LDRELAEANTMAL ; But, Joe, I wouldn't try and f i
make a very formal and elocuent response to a question like that. If he really wants to have it on the table, you can I
say, "l.cok, you blew it with.yp d and11nos and your handling p CGl.i '
of this matter, your dealing wip the Commission. TheyQ Md II a#versely to the way you handled it. It's J st one cf.thgst, I0 tAin,qs." As ! read it, that's the way it is. That's enough II of a reason.
ped's N ! think if you try.*( get into a detailed list of II particulars, you just get begged down.
20 CHA!RMAN pal.l.ADIN0: !s the Commission going to II exclude his asking that when he meets with the Commission? Is 22 that going to be off limits.
23 COMM!$5!0NER ROBERTS: Have we reached the decision 24 we're going to meet with him?
25 COMMIS$!0NER BERNTHAL: ! wasn't sure we had decided
61 I
what we were going to do.
2 COMMIS$10NER ROBERTS: I'm not sure that we've i 3
addressed that, k ,
CHAIRMAN PALLADINO: If we don't meet with him, ! !
5 don't know -- then ! think it's even more frustrating. Why 6 1 would you not meet with him? Y thought you wanted to explore 7
where he wanted to 90.
8 COMMISS!0NER GILINSKY: Why don't we see what the !
consequences'of your conversation with him are. ,
10 CHAIRMAN PALLA0!NO: ! can tell you.
" What is your speculation?
COMMISSIONER ROBERTS:
12 What do you think?
U You said, "I can tell you." I'd like to hear.
IN -
CHAIRMAN PALLADINO: My speculation is that he's U Scing to take a very hard-nosed attitude.
30 COMMIS$!0NER GILINSKY: Well, I must say that I7 increases my interest.
II (Laughter.)
IS CHAIRMAN PALLADINO: No, Victor. After you tell a i 20 guy here's a decision, being hard-nosed is trying to protect II his position, j 22 COMMIS$10NER GILINSKY: Well, he's not protecting i l
1 23 his real interestsi, l, 24 CHA!RMAN PALLADIN0: I agree. I tried te advise hir l on that matter before, and I --
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COMMISS!0NER ROBERT $: How can you say that you wil'!
save him by counseling? YOU stad MC %'A~*'M -
CHAIRMAN PALLADINO: I made some progress. ! made r 4 i considerable progress. He prepared t.ait letter, but he did i 5 i stick in that sentence.
6 COMMI$$!ONER GILINSKY: He still hasn't taken it 7
back, right up to today.
8 !
COMMIS$!ONER ASSELSTINE: That's right. l CHAIRMAN PALLA0!NO: I've juct refrained to talking i 10 to him on performance recently on the grounds ! didn't want ti 1 .
imply good, bad, or indifferent. If I started counseling him !
11 it would imply that, well, counseling -- he's going to come around and that would straighten him up, when the Commission 14 is thinking this way. ;
15 Well, I guess we all have to decide whether we're f going to hear him. I'd hear him, f
II COMMIS510NER ROBERTS: 1:et's see what haerens when f II you meet with him.
II CHAIRMAN PALLADINO: No, I'm sorry, but I've got to 20 tell him -
21 No, no, no, Joe. He can I COMMIS$!0NER GILINSKY:
22 say. He may want to meet with us, he may not war,t to meet t
21 with us. If he wants to meet with us, you can say you'll tak 24 it up with the Commission and, if the Commission wants to mee (
25 with him, they'll meet with him. [
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COMMIS$!CNER ROBERTS: Suppose -- I'm speculating.
2 goWou Suppose Cummings says, "Gee whit. Palladino, I realite there's been turmoil and so forth and ! think the best thing for me to '
4 do is leave." ;
CHA!RMAN PALLADINO: Well, if he says thut, fine, ,
i 6
COMM!$$!0NER ROBERTS: ! think that's a possibtitty. t 7 I I think that's what we all hope and forget this confronta.
8 tional nonsense. Ithinkit'shighlyunlikelythat'sgoingto[
' happen.
CHAIRMAN PALLA0!NO: You say it's unlikely.
' COMMIS!!0NER ROBERTS: Highly unlikely. l 12 CHAIRMAN PALLADIN0: I agree with you. !
II COMM!$$10NER ROBERTS: I think that would be the best thing for Cummings. {
15 ! think so, toe, COMMIS$10NER ASSELSTINE:
j I0 CFAIRMAN PALLADIN0: But I'm addressirg a different t
!, II issue. If everything gets hunky-dorry, there's no probier.i. :
II but do you want to offer him the opportunity to meet with the 1 II Commission? .
3 1 20 I wouldn't present that to COMMIS$10NER ROBERTS:
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21 him. Just wait and see if he asks for it and then we'll 1
22 decide that. l
- 2) COMMIS$10NER GILINSKY: That's what I would do. l 24 CHA!RMAN PALLADINO: If I were he, ! would ask the j j 25 Chairman what is the next step.
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COMMISSIONER ASSELSTINE: The next step is to get 2
reassigned.
I 3
CHAIRMAN PALLADINO: I thought part of your proposa' 4
was to get him in hart and at least discuss what ideas he had 5
on where he ought to 90.
6 COMMISSIONER GILINSKY: Wait a minute. I part we 7
are doing this to accommodate his personal interests and not 8
to be arbitrary in reassigning him ard putting him somewhere l
9 that's going to needlessly create a lot of ill feeling. l 10 .
CHA!RMAN FALLACIN0: But you were going to meet wit l 11 l him to discuss that. As I understood your proposal --
COMMISS!0NER ASSELSTINE: I don't even know if we have to do'that, quite frankly.
COMMISSIONER GILINSKY: As outlined by Jim, that wa I
left up tr. the air. You were going to discuss with him what ts his thoughts are on these various possibilities
$401n9 l'!*
- tty,ri fvv gy 1 401 *k ) l,* tr&
permanently, tay'ig ycer asi tempo,rary, does he want that ,
IO position of that sort, which I would name the position, er II does he have some other thoughts y and that's what ycu would 20 take b9ck tn us and we would make a decision on reassigning 21 -
him.
22 CHA!RMAN PALLADINO: I don't understand why you are 23 afraid to talk to the guy.
14 COMMISSIONER GILINSKY: We haven't said we wouldn't 25 talk to him.
1 CHAIRilAN PALLA0!NO: Well, you didn't offer him the 2
opportunity. That's what you decided last time, incidentally.
3 COMMISSIONER GILINSKY: I would take this a step at 4
a time.
5 CHAIRMAN PALLADINO: The last time you said -- ,
+
6 COMMISSIONER GILINSKY: t c ~" c/
Well, we've had a 1441 7
discussion about it and ! guess --
8 COMMISSIONER BERNTHAL: Joe, it sounds like we
' likely would, if he asked, but -
IO COMMISSIONER GILINSKY: We may well.
II Say the worst case happens COMMISSIONER ASSELSTINE:
I and he blows up and says, "Look, I demand to know why you'are II doing this to me. I'm entitled to a list or reasons and I'm IN entitled to an explanation and I'm entitled to an esportunity 15 to talk to the Commission before you do this to me." Fine, 16 Say, "All right, I'll have to disca.iss this with the rest of 17 the Commission and see if they are willing to neet with you II and de that.
IS COMMISSlgNERGILINSKY: Do you know what bothers me 20 about your comments Joe. It would have us not take an actier 21 -
that we think is a d fensible action because we are intimi-22 dated by the fear -
23 CHAIRMAN PALL O!NO: I'm not intinidated.
24 COMMIS$10NER G LINSKY: Well, but yeu're trying to 25 intimidate us, it sounds o me like.
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~Ty6 CHAIRitAN PALLADIN ): ! like to treat people the way ,
2 t 1tke to be treated. :
3 COMMIS$10NER GILIP SKY: ! think we're being very k
reasonable in sitting down v ith the man.
5 CHA!RMAN PALLADINC : Your sense of what's reasonable 6
andmineareverydifferent.{
7 COMMISSIONER GILIN! KY: He does not have a right to <
8 4 highly sensitive position i he does not have the confidence
' of the Commission. 9 CHA!RMAN PALLADINO: ! agree with that.
COMMIS$10NER GILINSKY. So that is out. <
CHAIRMAN PALLADINO: ! ree. ,
I3 COMMI55!CNER GILINSKY: So there's no discussion about that. The cuestion is - and there need not be any 15 discussions as to why, although we may want to or we may not I
want to.
I7 COMMISSIONER ROBERTS: agree with yeu.
l ,,
II COMM!$$!0NER Gi!.!N5KY: But we're talking about.
II now, where he might go, how he might serve cur intwrests and 1 20 serve his interests.
21 CHAIRMAN PALLADINO: You want me to do that anc the 22 report back to the Commission?
23 COMMISSIONER GILINSKY: Right.
2k CHA!RMAN PALLADIN0: Then what do we do?
25 COMMIS$10NER GILINSKY: It depends on -
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J COMM!$$!0NER ROBERT $: It depends.on what Cummings l 2
does.
COMMIS$10NER ASSELSTINE: That's right.
k CHAIRMAN Pall.ADINO: Let's assume - !
5 :
COMMISSIONER G!LINSKY: ! think you right add, in !
6 l this, that there is no interest in harming him personally ;
beyond making sure that he is not in the position that we 8
don't want him. l
,1 l You know, when you take on one of these positions, j 10 tts the price of providence, if you lose -- you know, people {
l
" get lifted. The Ambassador to London just got lifted and he 11 wasn't too happy about that. ;
II CHA! AMAN pal.t.A0!NO: ! agree witn you.
)
I COMMISSIONER GILINSKY: He doesn't call the 3
15
{ President sed say, "! can handle it." or anythirg like that, f t
l I'
and it didn't look so good in the cepers and so on, but these f I7 things get worked out, f
II Well, here is what I plan to CHA!RMAN PALLA0!NO:
f l
i II do. I'll call him in. I'll try to do it at the very first (
j 20 opportunity, maybe late this afternoon, and say that the ;
II -
majority of the Commission no longer has confidehte in his :
i ;
- 22 ability to carry out the duties of his present position. The j 2) Commission has in mind to reassign him - has some possibili- l ties in mind. [For exampt 14 , the Deputy Director of the Safe- l 1
j I
15 guards Diviston. ;
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However, before firming up where he would go, I would like to get his thoughts, his ideas -
On his new assignment.
~
COMM!5510NER ROBERTS:
k CHAIRMAN PALLADIN0: -- on his new assignment or on :
5 his - whether he wants to -- well, I'll sto right there, i 6
- COMMIS$!0NZR A$$ELSTINE: Right.
7 COMM!$5!0NER G!LINSKY: Right.
COMMI55!0NER ROBERT 5: Right. That's enough.
i e
(Laughter.)
I CHA!RMAN PALLADIN0: Well, I didn't itko saying that 11 maybe he,wants to go elsewhere because that takJs on a dif.
12 W i k i+.
forent Wm And then listen, and report back to you.
I II COMMI5510NER G!LINSKY: In fact, I think I wo d i
gs :n A best1L up c h l
reverse a couple of those sentencesFabout whnting % eto get his thoughts on where we go fron here and one of the possibilities I
is his reassignment to --
j 37 COMM!$5!0NER ROBERT!: Now, wait a minute. We're I8 reassigning him. That's important.
j IS COMM!$5!0NZR G!LINSKY: Okay, fine.
! 20 CHAIRMAN PALLA0!NO: We haven't decided where we're i 21 -
going to put him yet.
l 22 COMMISSIONER GILINSKY: Fine. Okay. Let's just
!) leave it exactly the way you have it, j 2k COMMI55!0NER BERNTHAL: Well, if he gets the tapes
. 25 of this meeting, he surely is going to demand to meet with us.
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COMMISSIONER ASSELSTINE: Sure, i
' COMMISSIONER ROBERTS: I think we've addressed that 6
issue once before. l COMMISSIONER GILINSKY: Well, it offers us the 8
opportunity to oversee what --
I CHAIRMAN PALLADINO: Okay, we've got two other 10 issues. Can I take just five more minutes. Two other issues.
We can de'er until Friday the issue of rating him.
12 CCMMISSIONER ROBERTS: Fine.
I3 C9 AIRMAN PALLADIh0: You saw my rating and it said IN fully satisfactory. There was another item that I guess I've 15 oct in here.
16 I 0 ,/,
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l 1 l 2 NUCLEAR REGULATORY COMMISSION 3
4 5 This is to certify that the attached proceedings before the 6 Commission in the matter of: Discussion of Mrnagement/
7 Organization and Internal Personnel Problems, neld on 8 Tuesday, September 21, 1984, at 1717 H Street, N. W.,
9 Washington, D. C., were held as herein appears, and thpt 10 this is the original transcript thereof for the t'11e of the i; Commission.
12 13 14 Elizabeth Ann Tipton ~
15 Official Reporte r. ( ty peo )
16 17
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I8 I ._ [.. . i.. $ ( / . , ,
Official Reporter (Signature) 19 20 21 22 23 r
24 25
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