ML20207B561
| ML20207B561 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/16/1986 |
| From: | Bright G, Kelley J, Kline J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-988 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8607180110 | |
| Download: ML20207B561 (18) | |
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k DOCKETED UNITED STATES OF AMERICA USNRC
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NUCLEAR REGULATORY COMMISSION Before the Presiding Board:
J117 40:20 James L. Kelley, Chairman Omrr n-Glenn 0. Bright DOW s'
Jerry R. Kline SERVEDyh3.y In the Matter of Docket No. LRP ASLBP No. 86-519-02 SP INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION July 16, 1986 MEHORANDUM AND CADER (Concerning Motion for Dismissal of Attorneys, Use of Prior Statements to Avoid Calling t
Witesses Additional Witnesses, and Notice of Telephone Conference Call) 1.
Aamodt Motion for Dismissal of Attorneys, a.
Background.
On March 14, 1986, the Aamodts filed a " Motion for Dismissal of Employees' Attorneys," seeking exclusion of all present counsel for present or fonner employees of Met Ed participating in this proceedins. The motion also charges improper conduct by Counsel for GPUN, although it does not seek their exclusion. We spoke to this motion in part in our Order of March 26, 1986, where we directed the Aamodts to supplement their motion with an explanation of how existing arrangements among Counsel and the employees conflict with generally accepted rules of professional conduct. The Aamodts filed such a i
0607100110 060716 PDR ADOCK 00000320 0
i supplement on April 17, 1986 and the respective counsel filed responses thereafter. We denied the Aamodts' motion in our Order of June 24, 1986, stating that we would provide reasons for that denial at our earliest opportunity. Those renons follow.
Most of the Aamodts' strictures are directed against Counsel for j
the " Numerous Employees" -- the fims of LeBoeuf, Lamb, Leiby & MacRae
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and Killian & Gephart, working jointly. They represent twenty-four j
present and former employees'at TMI-2 who may have. potential conflicting interests in this proceeding. We discuss these arrangements first. We turn then to the arrangements between two individual supervisory employees and the separate law firms representing them, Hunton &
Williams and Isham, Lincoln & Beale. As to them, the Aamodts' complaint is that they were initially selected by Met Ed or GPU, rather than by 4
the employees, and that they have other employment relationships with those related companies such that their independence would be compromised. Finally, we consider the Aamodts' attack on Counsel for GPUN which arises out of the TMl-1 Restart " cheating" controversy.
b.
Counsel for the Numerous Employees.
(1) The March 14, 1986 Motion.
The Aamodts' original motion includes several charges directed specifically against the LeBoeuf, Lamb and Killian & Gephart firms or against them and the other firms. The Aamodts begin with the claim that multiple representation of clients with potentially conflictinj liiterests is unacceptable per g, a i
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3-positionwehiveaIreadyre'jicted. Motion, p. 2.
Memorandum and Order of March. 26,' 1986, p. 16.
I The 'amodts next contend that the indemnification arrangements A
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existing between GPUN and Met Ed and the various firms are
" unacceptable". At a' subsequent prehearing conference, however, the Aamodts withdrew their objection to' indemnification. Tr. 201. As clarified at the conference, the Aamodts' objection.goes to the manner of selecting attorneys, not 'their cSmpensation'. According to the Aamodts, the employees should have been allowed to select their own attorneys, who should then have been indemnified by Met Ed. Tr. 201.
Instead, the Aamodts' complain that, Met Ed " enticed" the employees to accept.ounsel of the company's choice "by only agreeing to indemnification prior to the final disposition of the hearing" if the firms selectell 'by the company were used. The Aamodts then contend that these company-selected law fims would not represent the employees independently because of their " prior connections" with GPU companies or "cther nuclear accounts." We consider this complex allegation and its j
underpinnings one step at a time.
First', Attachment 2 to the Numerous Employees' filing of February 14, 1986 shows that in 1980 Met Ed sclected the LeBoeuf Lamb and Killian & Gephart fims ar,d offered their services to affected employees, subject to an advance indemnification arrangement. The employees accepted that offer individually in writing.
In and of itself, we me nothing wrong with this arrangement. While Met Ed might have simply told all the employees to find their own separate attorneys, l
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O offering separate indemnity to each, the course they chose in providing representation initially six years ago was, we believe, reasonable under the circumstances. As noted in Attachment 2, the two firms together represent substantial experience and expertise in nuclear and Pennsylvania law matters. The thrust of the Aamodts' complaint -- that the fi ms now appearing for the employees represent "other nuclear interests" -- presumably would bar representation by any finn specializing in nuclear regulation, thus depriving the employees of needed expertise. Beyond that, for us to bar nuclear law firms at this late stage, after years of representation by those firms, and to direct each employee to retain a general practitioner of his choice -- in the absence of the slightest indication that that is what the employees want
-- would be unwarranted and unfair to the employees. Furthermore, it would delay this belated proceeding for a further indefinite period.
An entirely different matter would be presented if these particular law firms were so aligned with GPUN - Met Ed interests by other employment relationships that they could not represent the employees independently. Which brings us to the second step in the Aamodts' argument. As to LeBoeuf, Lamb and Killian & Gephart, the Aamodts do not point to any specific relationship between those firms and the GPUN -
Met Ed companies. Rather, they state, incorrectly, that the firms "did not report any connections" and that their alleged " failure to provide an infomation, in view of the Board's interest, is tantamount to an admission of other financial conflicts."
(Emphasis in original.)
Motion, p. 4.
Contrary tu these assertions, Met Ed stated in its letter
of April 18, 1980 to the individual employees (Attachment 2 to the Numerous. Employees' Response of March 3, 1986) that --
Neither of these firms now represents, or to the best of our knowledge has ever represented, Met-Ed or its affiliates, nor will they be subject to Company direction. The LeBoeuf firm is outside counsel to the Edison Electric Institute and has represented the Institute (of which Met-Ed is a member) and electric utility groups including Met-Ed or its affiliates from time to time. We and they do not believe that this gives rise to any conflict or compromises in any way their
, independence in representing you and other Met-Ed past or
'present employees.that may be involved in the investigation, but you are, of course, free to make' other arrangements for your own representation if you desire.
Apart from the quoted reference to the Edison Electric Institute, the Board is aware that LeBoeuf, Lamb has represented other nuclear utilities in NRC matters, but we regard those relationships as irrelevant from a conflict standpoint in this proceeding. We have no knowledge or reason to believe that Killian & Gephart is substantially engaged in nuclear practice. Therefore, with regard to other employment relationships, there is no basis to the Aamodts' claim of GPUN-Met Ed control of these law firms.
The March 14 Motion goes on to cite "other evidence... to show tha+ the attorneys are representing the company." Motion, p. 5.
Fi rst,
the Aamodts cite an apparently rhetorical statement by former United States Attorney Queen before the federal district court in the leak rate prosecution. That hearsay statement, coupled with the Aamodts' interpretation of what they believe Mr. Dueen must have meant by it, can scarcely serve as a basis for the drastic step of' excluding attorneys from this proceeding.
- The Aamodts next seek support for their motion in an unlikely place i
by the
-- the Memorandum of Judge Rambo rejecting a similar mot on The pertinent Justice Department in the leak rate criminal case.
language is as follows (Memorandum, p. 2):
Counsel from the firms representing the employees have stated unequivocally that, if an offer of imunity were made to one of their clients, that client would be advised to seekThere separate counsel.of interest in this multiple representation, but, unt potential ripens, judicial intervention would be premature.
The Aamodts infer from this a willingness by the attorneys to " aba their clients should,imunity be provided to some and not others, an such " abandonment" is then equated with a lack of dedication to th But this reasoning stands Judge Rambo's clients. Motion, p. 6.
In context, the Ju'dge was simply acknowledging statement on its head.
flict the fact that, upon a grant of imunity to some employees, a con After all, the might well arise between those employees and others.
usual purpose of granting imunity to some people is to obtain their Thus, the attorneys' statements with which testimony against others.
the Aamodts find fault merely reflect a comendable sensitivity to ethical constraints.
The Aamodts go on to state that Counsel for the Numerous Employe should be seeking the " clear remedy of imunity from prior testimo suggesting that their failure to do so indicates divided loyalties.
Suffice it to note that this Board does not have the Motion, p. 7.
power to grant imunity from adverse licensing action, let alone criminal prosecutions.
(2) The April 17, 1986 Supplen:ent.
This Supplement was filed in response to the following invitation from the Board:
Should the Aainodts wish to press this motion, they are to supplement it with an explanation of how, in their view, the present arrangements for counsel conflict with the Rules of Professional Conduct cited above (or other principles generally accepted by the courts), including specific reference to particulars of those arrangements. We would be particularly interested in any judicial decisions (we know of none) indicating that the counsel arrangements in this inquiry are not acceptable, or an opinion of counsel experienced in questions of this, nature.
The Aamodts' Supplement adds nothing of substance to their. original motion. The Response of the Numerous Employees effectively rebuts the Supplement and we substantially agree with it. Therefore, extensive restatement of these documents is unnecessary. We note the following salient points:
-- The particular facts and circumstances of judicial decisions or bar association rulings involving attorney disqualification are important in assessing their relevance to this case. The Aamodts' references to cases and rulings provide no facts and assertedly represent principles so general as to be of little assistance.
-- The Aamodts cite certain " ethical considerations", e.g., EC 5-15, 5-18.
Such considerations are merely hortatory; they are not binding on attorneys. Even assuming that some contravention of an
" ethical consideration" might have occurred here, that alone would not be a valid basis for dismissal of an attorney.
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-.Certain of the principles advanced by the Aamodts appear to undercut, more than support, their motion, e.g., " Dual representation.
.. " (bottom of p. 2); "The mere fact..." (bottom of p. 4).
(3) Conclusion. Although the parties have not discussed it, our consideration of this matter would be incomplete without some reference to our experience to date with counsel in this inquiry. From our perspective, LeBoeuf, Lamb and Killian & Gephart have been representing their clients vigorously, frequently taking positions different from GPUN. Although the inquiry is in an early stage, the nevertheless substantial track record to date contains no indication of the " company control" thesis advanced by the Aamodts.
In conclusion, this case involves multiple representation where potential conflicts exist among the Numerous Employees but no actual conflict has surfaced. Counsel for the Numerous Employees believe that they can represent their clients without conflict. We accept their judgment at this juncture. Counsel further state that --
If an actual conflict arises in this proceeding, we will discuss it with the affected Dnployees and either withdraw or secure their consent to our continued representation.
Although the ABA Model Code of Responsibility (DR S-105) appears to generally authorize " consent to continued representation" when an actual conflict arises, the ABA Model Rules (Rule 1.7) indicate that in some situations consent would not be effective. We will not prejudge a situation, which may not-arise at all, out of its context. However, we direct counsel for the Numerous Employees to advise the Board should an
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actua1 conflict arise and should they wish to continue repre the employee in question to enable the Board to consider on of such a situation in context.
With that caveat, the motion for dismissal is denied as to Counsel for the Numerous Employees C_ounsel for Mr. Miller and Mr. Herbein.
c.
Messrs. Miller and Herbein are represented by the law fi rms of Hunton & Williams and Isham, Lincoln & Beale, respectivel y.
As noted above, the Aamodts now concede that indemnification of the ms by Met Ed or GPUN for fees and expenses incurred in repres enting Miller and Herbein is proper.
The only remaining question is whether any other representation arrangements between those firms and those co mpanies might compromise the independence of the attorneys' repre whether all such arrangements have been fully disclosed on and by Miller and Herbein.
and consented to Counsel for Mr. Herbein states in his response that Isha m, Lincoln
& Beale "has never been involved with GPU in any matter other than the representation of Mr. Herbein."
Response, p. 2, footnote.
We read this to include not only GPU, but Met Ed and its affiliat d e
companies, as indicated by the letter of January 17, 1986 attached to the firm's Response.
Thus, there are no potentially conflicting relationship far as Counsel for Mr. Herbein is concerned.
s so Mr. Maupin, Counsel for Mr. Miller, made a detailed di sclosure of his and his firm's employment relationships with GPU Co rp. and affiliated companies in an affidavit accompanying his initi onse.
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He described an additional relationship on the record at the first prehearing conference. Tr. 11-12. None of these relationships have anything to do with this leak rate proceeding. Furthermore, these relationships have been disclosed to Mr. Miller and he has consented to them. Beyond that, the Board notes that these relationships, as described, do not appear to reflect major pieces of legal business such that their continuation might exert any influence on a firm's decision-making in this proceeding, at least in a large, diversified firm like Hunton & Williams.
Finally, as discussed above with respect to Counsel for the Numerous Employees, the track record of these firms in this proceeding reflects independent representation and no suggestion 8
of " company control."
The Aamodts' motion with respect to Counsel for Messrs. Miller and Herbein is denied.
d.
Counsel for GPUN.
The Aamodts' motion does not seek dismissal of Counsel for GPUN.
Nevertheless, the Aamodts have chosen to level certain charges against Counsel for GPUN in an effort to show their alleged propensity to
" coach" employee witnesses, including some represented by other counsel.
3 These charges should not have been raised in this proceeding.
The charges arise out of the TMI-1 Restart " cheating" proceeding, a separate proceeding unrelated to this inquiry. The basic facts are simple. Late in the hearing, which was being conducted under a sequestration order, it developed in testimony that counsel for GPUN, I
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Mr. Blake, had had a discussion during a hearing recess with two of the witnesses. An off-the-record discussion ensued among all parties and the Special Master, who subsequently concluded that Mr. Blake had acted in good faith and had not violated the literal terms of the Special Master's sequestration order. Tr. 26,797; Memorandum and Order of February 9,1982. The next day, the Aamodts moved for a stay of the proceeding pending a hearing on the " integrity of the process." Tr.
26,788. The Aamodts alleged that the integrity'of this proceeding has been defeated by inappropriate contacts between counsel for the licensee and witnesses in the proceeding, that they have been inappropriately coached.
The single specific instance of alleged evidence of coaching cited by the Aamodts or any party was Mr. Blake's contact, discussed above. Tr.
26,791-26,796. Mr. Aamodt, accompanied by Mrs. Aamodt, stated on the record that
[W]e viewed the incident yesterday as not in itself having the inferences of impropriety that we have attached to it here.
The concern was that it appeared to us to indicate that by some mechanism which we cannot
]ut our finger on, there has been coaching of witnesses and.1ere was an example, and therefore the question of preparing witnesses is one that we feel should be looked at very carefully (emphasis added).
Now, four and a half years later in an unrelated proceeding, the Aamodts claim to have "put their finger on" a " mechanism" for." coaching of witnesses" -- based on an alleged conversation "in the bathroom near the hearing room" between Mrs. Aamodt and Ms. Bonnie Gottlieb, Mr.
Blake's co-counsel, a few days before the Aamodts' motion to stay the proceeding. The pleading of Counsel for GPUN states that Ms. Gottlieb N
" denies the conversation described in Mrs. Aamodts' affidavit." We are not in a-position to explore and determine whether the " conversation described in Mrs. Aamodts' affidavit" or indeed any 1981 conversation occurred between Mrs. Aamodt and Ms. Gottlieb in a bathroom or elsewhere. The important point is that such a conversation, if it supported a claim of impermissible witness " coaching," could and should have been raised by the Aamodts before the Special Master at the time.
But it was not. The " coaching" allegation was' addressed before the Special Master and resolved by him against the Aamodts. Belated allegations about such a conversation have no place in this proceeding.
e.
The Aamodts' Errata Sheet.
On May 3, 1986, the Aamodts submitted an unauthorized pleading entitled " Errata, Aamodt Supplement, April 17, 1986."
In addition to transmitting certain transcript pages, the " Errata" contains further allegations of " coaching" at the cheating hearing and some extremely serious and totally unsubstantiated charges against Counsel for GPUN (page 1, lines 13-15) and Counsel for the Numerous Employees (page 2, lines 15-19).
In a letter dated May 6, 1986, Counsel for the Numerous Employees responded briefly, saying first that the " Errata" pleading "is clearly untimely and should be rejected for that reason alone." We agree. For the record, Counsel supplied certain facts bearing on their involvement in the matters alleged.
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Although, as support for the Aamodts' motion for dismissal we reject this pleading as untimely, we cannot ignore the fact that, once again, the Aamodts have engaged in groundless and intemperate attacks against counsel in this proceeding, despite our direction to refrain from such attacks in our Memorandum and Order of March 26, 1986, pp.
5-6, note. Yet another groundless and intemperate attack by the Aamodts had occurred in a later pleading, which we discuss below. This time, we wish to make it unmistakably clear that no fur'ther. such attacks will be tolerated. We are placing the Aamodts on notice that should they again violate our direction against such attacks, the Board will impose sanctions against them, including, for a serious violation, the sanction of permanent exclusion from this proceeding.
f f.
The Aamodts' Motion for Reconsideration.
On April 18, 1986, the Aamodts' filed a " Motion for Reconsideration" asking us, among other things, to withdraw our determination that they had engaged in an intemperate attack and used unnecessarily strident language against counsel. The Aamodts claim to have " combed through our filing of March 19, 1986 to determine what could have been thought to be an intemperate attack or strident language." Motion, p. 1.
No such combing was necessary.
In order to avoid any possibility of misunderstanding on that score, we cited the specific pages and lines of the Aamodts' pleading on which offending language was used. We
adhere to those determinations. The motion for reconsideration is frivolous and it is denied.
2.
Use of Prior Statements to Avoid Calling Witnesses.
In its pleading of May 9,1986, GPUN proposed that "past statements be used to avoid the unnecessary appearance of witnesses." GPUN outlined a specific proposal whereby 15 persons to whom our letter of December 31, 1985 had been s'ent would be exclu'ded from the proceeding now, based on prior statements indicating they have little aor nothing to contribute to the proceeding.
In our Memorandum and Order of May 22, 1986, we invited comments from the parties on this proposal.
Counsel for Messrs. Miller and Herbein stated that they had no objections to the GPUN proposal. Counsel for the Numerous Employees supported the GPUN proposal, except that they objected to admission of the prior statements of the 15 persons proposed for exclusion (an issue we ao not reach at this point).
In their filing of June 6,1986, the Aamodts oppose GPUN's proposal, basically on the ground of prematurity. They quote the Board's prior statement that "following Phase I, based on Board review of the record and suggestions of the parties, the Board will determine what, if any, additional witnesses are needed in order to resolve tiie issues." Memorandum and Order of May 22, 1986 at 5.
In addition, they take issue with GPUN's " assessment of the culpability" of 2 of the 15 employees proposed for exclusion.
l We agree with the Aamodts that the GPUN proposal is premature at this time. Our view is not based on any assessment that there are specific reascns to believe that the 15 named persons may have been involved in leak rate falsifications.
Indeed, we have not attempted to review their prior statements in detail. Moreover, we agree with GPUN that something more than mere suspicion of involvement should be present as a predicate for Calling a person as a witness. Nevertheless, the hearing in this case has not' yet taken place.
In the course of the hearing, significant new evidence of leak rate falsification may surface and persons not now implicated may become so. We therefore believe that the GPUN proposal, while sound in principle, should await the completion of Phase I of the hearing.
We agree with GPUN that "this proceeding does and should have as one of its objectives to exculpate individuals whose names have arisen in connection with the subject matter of falsified leak rate testing at TMI-2."
Comments, p. 3.
We stress in that connection, however, that our letter of December 31, 1986, was not intended to accuse or cast suspicion of wrongful conduct on any of its recipients. Those 120 recipients ccmprised a ccmprehensive list of all persons who, by virtue of their positions, might at least have had pertinent knowledge of leak rate matters. Nevertheless, after Phase I of the bearing is complete, we think it would be appropriate to make individual determinations of exoneration as warranted by the record.
GPUN's proposal and the Aamodts' Response have led to a verbal battle between them. The fault lies with the Aamodts. The pertinent
pleadings are the GPUN Comments of June 16, 1986 and the Aamodts' Response of July 3,1986.
In our comments that follow, we will assume knowledge of these pleadings and their context, including the Aamodts' growing record of reckless and abusive language in this case. See pp.
12-13, above. As we read these June 16 and July 3,1986 pleadings in context, the following points emerge:
a.
The Aamodts take umbrage at the GPUN phrase " reckless and derogatory assertions" as applied to the Aamodts' statements cbout 2 of the 15 persons proposed by GPUN for exclusion from the proceeding.
We agree that GPUN's quoted phrase reflects an overreaction to those particular Aamodt statements, but only when viewed in isolation.
b.
Counsel for GPUN go on to request that we admonish the parties (and particularly the Aamodts based on their performance to date) not to misperceive their obligation to argue their positions in this proceeding as a license to abuse the rights of individuals or assault their character absent a sound basis in fact. Comments, p. 4.
As we made clear in our earlier discussion (pp.12-13 above), that is exactly what the Aamodts have been doing in this case. Despite a clear Board warning, they continue to engage in groundless personal attacks in their July 3,1986 pleading. See p. 3, line 4.
c.
The Aamodts decry "GPUN's attack on us" as " vicious and unwarranted." Response, p. 3.
Viewed in the full context of the Aamodts' repeated transgressions, GPUN's comments in its June 16, 1986 pleading were fully justified.
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3.
Additional Witnesses.
The Board notes that two individuals, Martin V. Cooper and Dennis
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I. Olson, were, in the opinion of the 01 and NRR investigators, involved in leak rate test manipulation at TMI-2 in 1978-79. The investigators' analyses are summarized at pp. 18-20 and 22-25 of the OI Report and pp.
5, 20 of Enclosure 2 of the NRR Report. Other pertinent materials accompany these Reports.
Our letter of December 31, 1985 inviting participation in this proceeding was sent to Messrs. Cooper and Olson, but neither chose to petition to intervene. We made it clear to each recipient of that letter, however, that "should you decide not to participate as a party, you may nevertheless be subpoenaed as a witness." In the present circumstances, the Board finds reasonable cause to issue subpoenas to Messrs. Cooper and Olson to appear and testify concerning their participation in leak rate testing at TMI-2. Subpoenas will issue shortly.
The Board's decision to subpoena Messrs. Cooper and Olson does not imply that no further subpoenas will issue based upon the various reports and materials now in the record.
4.
Telephone Conference Call.
The Board is scheduling a telephone conference call with all parties for Thursday morning, July 31, 1986 at 10 a.m.
The principal purpose of the call will be to discuss the status of matters leading to the evidentiary hearing and particularly whether a prehearing i
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conference, tentatively scheduled for August 21, 1986, is necessary or desirable. The call will be on the record. This is the only notice of this call you will receive.
THE PRESIDING BOARD Q:
-u JaysL.Kelley,Chairmaft ADMINISTRATIVE JUDGE AL~J. 82 lJ Glenn 0. Bright y
ADMINISTRATIVE JUDGE
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/JerryR.#llin~e*
RDMINISTRATIVE JUDGE Bethesda, Maryland 9
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