ML20236E419
| ML20236E419 | |
| Person / Time | |
|---|---|
| Issue date: | 04/24/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#289-8499 CLI-89-11, NUDOCS 8905020044 | |
| Download: ML20236E419 (11) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Lando W. Zech, Jr., Chaiman 1
Thomas M. Roberts SERVED APR Z l,1989 i
Kenneth M. Carr Kenneth C. Rogers James R. Curtiss SERVED JUL 2 5 1989
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In re OIA INVESTIGATION Docket No., 01A-89-02 ORDER
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Introduction.
This matter is before the Connission on the motion of Mr. Stephen B.
Comley to quash a subpoena duces tecum issued to him on March 24, 1989 during
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an internal NRC investigation. Mr. Comley alleges that (1) the NRC does not have statutory authority to issue the subpoena and that (2) the subpoena i
violates his First Amendment rights. We reject both arguments and reaffitin the subpoena as modified herein.
II. Factual Background.
In August of 1988, the NRC's Office of Inspector and Auditor ("01A")
received allegations of misconduct involving an employee in the NRC's Office 1
This order has been corrected to supply the phrase "of telephone conversations" inadvertently omitted from the initial order signed April 17, 1989. See slip op. at p.7.
In all other respects, this order is identical to the order signed April 17, 1989.
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of Investigations ("01").I OIA was the NRC office assigned to investigate allegations of employee misconduct and the Director of OIA reports directly to the Comission. See generally 10 C.F.R. 9 1.21 (1988).2 Subsequently, DIA began an investigation into these allegations.
In the late winter of 1988-89, the Commission removed the investigation from OIA and assigned it to a special investigator, Alan S. Rosenthal, an Administrative Judge and former Chairman of the NRC's Atomic Safety and Licensing Appeal Panel.
During the course of this investigation a tape recording of a January 14, 1987 telephone conversation between Mr. Comley and the NRC employee in question was received by the investigators. The recording contains information that at least raises the question of whether the NRC employee (1) provided information of a confidential nature to Mr. Comley and/or (2) received information from Mr. Comley that should have been, but was not, made available to other NRC officials.
If such actions in fact occurred, they would constitute a potential violation of several NRC regulations and a I
breach of certain duties of the employee in question under specific NRC Manual Chapters. See,e.g.,10C.F.R.90.735-49a(b),(c),(d),and(f);10 C.F.R. 5 0.735-30(c) and (x) (10 C.F.R. Part 0, Annex A.); 10 C.F.R. 50.735-3(a)(6).
IDuring the course of this Memorandum Opinion and Order, we will not refer to either the person making the allegations or the NRC employee by name because this investigation is a confidential matter which is still ongoing.
20n April 17, 1989, the functions of OIA were transferred to the newly created Office of Inspector General of the NRC.
See Inspector General Act Amendments of 1988, Pub. L. No. 100-504, 102 Stat. 2515, signed October 18, 1988.
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Other information obtained during the course of the investigation indicates that Mr. Comley recorded approximately 40 to 50 telephone conversations betweea himself and the NRC employee in question,. These tape l
J recordings are c'early relevant to ascertaining whether the NRC employee has engaged in the alleged misconduct, malfeasance, or neglect of duty which is the subject of this investigation. Accordingly, the Comission issued a subpoena to Mr. Comley seeking "any and all tape recordings or transcripts of tape recordings in your custody, control, or possession of any telephone conversations between yourself and any employee of the [NRC), including but not limited to" the NRC employee in question. Mr. Comley responded with the motion to quash which now lies before the Commission.
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III. The Comission's Statutory Authority To Issue Subpoenas.
l A. Subpoenas In Internal Investigations.
In his motion to quash the subpoena, Mr. Comley argues that "the Commission has not issued the instant subpoena in connection with any of its j
powers under the Atomic Energy Act." Motion to Quash at 3.
Mr. Comley argues that "[t]he Comission's authority to hire and, ultimately [to]
discipline agency employees does not derive from the Atomic Energy Act.
Rather, it derives from the Civil Service Reform Act of 1978...." Motion to l
Qussh at 5.
He argues further that "[n]o agency, including the NRC, is given subpoena authority under the provisions of 5 U.S.C. Chapter 75 in the context of administrative disciplinary proceedings." He asserts that subpoena authority in disciplinary cases "is granted only to the Merit System a
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Protection Board -- a quasi-judicial federal agency that has jurisdiction to j
l review actions [against certain employees.]" Id.
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Under Section 161 (c) of the Atomic Energy Act ("AEA"), as amended, the j
i Comission is authorized to make such studies or investigations, obtain such infomation, and hold such meetings'as the Commission may deem necessary or proper-to assist it in exercising any authority provided in this Act, or in the administration or enforcement of this Act, or any regulations or orders issued thereunder. For such ourposes, the Commission is authorized... by subpoena to require any person to appear and testify or appear and produce documents, or both, at any designated place.
42U.S.C.92201(c).
In sum, Congress authorized the Comission to gather information "to assist it in exercising am authority provided in" the AEA and "[f]or such purposes... authorized" the Comission to issue any necessary subpoenas.
Section 161(d) of the AEA provides that the Comission is authorized to
" appoint and fix the compensation of such officers and employees as may be necessary to carry out the functions of the Comission." 42 U.S.C.
6 2201(d). Furthermore, Section 161(d) requires the Comission to "make adequate provision for administrative review of any determination to dismiss any employee." Id. Thus, the Comission's express authority to " appoint" or hire employees and to make
- determination [s] to dismiss" employees is found in the Atomic Energy Act, not the Civil Service Reform Act of 1978, as argued j
by Mr. Comley. True, the Commission's " employees shall be appointed in accordance with the civil-service laws,...." Id.(emphasisadded),
including the Civil Service Reform Act. See, e.g., 5 U.S.C. f 7541 et seq.
i However, that reference to the generic " civil-service laws" indicates that the appropriate civil service laws which are in effect at the time of appointmentordischarge(orbyimplicationsomelesserdisciplinaryaction)
5 supply the appropriate standards and procedures for. effecting and processing the Comission's personnel action decisions, not the actual authority to make such decisions in the first place. Thus, the Comission's authority to make appropriate personnel decisions is an authority provided in the AEA..
In this instance, the agency has received allegations that one of its senior officials is guilty of misconduct. Obviously, the agency cannot make a determination of the truth of the allegations or propose to take any action egainst the employee in cuestion without making an investigation. Moreover, the employee himself is entitled to a full and fair investigation.
Therefore, the agency is obligated to make an investigation to detemine whether the allegations have any substance. 42 U.S.C. 5 2201(c). When it is necessary for the Comission to conduct an investigation in order to obtain information to make a personnel decision, the Commission is authorized to issue subpoenas under Section 161(c).
l B. Subpoenas In Public Health And Safety Investigations.
I A separate and additional basis under the AEA also supports the Commission's subpoena. Mr. Comley concedes (as he must) that the Comission clearly has the authority to issue subpoenas in investigations affecting l
3 public health and safety. Motion to Quash at 3.
As we noted above, the NRC employee is an employee in the NRC's Office of Investigations ("01").. This office is responsible for investigating allegations of " wrongdoing" or deliberate violations of NRC regulations by holders of Comission licenses.
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As such, these ' investigations frequently have serious implications for public.
health and safetn: If an OI investigation uncovers information relating to violations of NRC rey 6t&Mm governing the technical aspects of licensee i
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i activity, 01 must refer those matters to the NRC's technical offices, such as 1
the Office of Nuclear Reactor Regulation ("NRR"). See, e.g., 10 C.F.R.
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6 1.27(f) (1988).
l In this case, the evidence developed during this investigation provides sufficient reason for the NRC to inquire further into the possibility that the NRC employee in question received infomation relating to potential violations of NRC regulations and did not pass that information to the appropriate officials of NRR. Thus, the allegations being investigated also raise questions involving public health and safety which, as Mr. Comley concedes, clearly fall within proper NRC subpoena jurisdiction.
3 IV. Petitioner's First Amendment Concerns.
In the pleading before us, Mr. Comley alleges that enforcement of the subpoena will somehow " chill" his rights of freedom of association under the First Amendment to the United States Constitution, citing United States v.
Garde, 673 F. Supp. 604 (D.D.C. 1987), appeal dismissed, 848 F.2d 1307 (D.C.
i Cir. 1988). We reject this argument as a basis for quashing this subpoena.
By this subpoena the Commission is simply trying.to obtain records of conversations that are relevant to a lawful investigation being conducted by the Comission. Nothing in the First Amendment immunizes such information from discovery.
If the case were otherwise, no party to any lawsuit or any investigator seeking to learn facts could discover the contents of any conversation.
The First Amendment burdens at issue in the Garde case are clearly distinguishable from any that might be involved in the present case. The subpoena in Garde was directed at records and documents of an attorney
7 employed by an organization whose primary purpose, indeed whose very existence, was asserted to depend upon protecting the confidentiality and identity of individuals who filed complaints regarding safety in the nuclear industry. The allegations in that case suggested that these individuals had requested confidentiality and had spoken to the individual involved solely because of an understanding 1[ hat their identities would be protected. Here, Mr. Comley has not made similar assertions regarding the organization he calls "We The People" or claNed a dependence on confidentiality and nondisclosure of the identity of persons who have spoken to him. Such assertions would in any case not appear plausible.
As we understand Mr. Comley's argument, he believes that if he is required to surrender his tape recordings NRC employees will be afraid to communicate with him, reducing the effectiveness of his political activities.
Mr. Comley also appears to suggest that the Comission is engaged in a " witch hunt" to discover the names of presently unknown Commission employees who may
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have been in contact with him. Th% is emphatically not the purpose of the subpoena. All the subpoena seeks is information relevant to the ongoiy investigation described above. To remove all question about this point, the Commission by this order hereby modifies and narrows the subpoena to seek only " tape recordings or transcripts of tape recordings of telephone conversations between [Mr. Comley] and" the NRC employee in question. Thus, there can be no concern that compliance with the subpoena will disclose previously unknown identities of persons in contact with Mr. Comley.
Finally, we note that even were some Garde First Amendment interests implic ded by this case, the Garde Court expressly acknowledged that the Commistt n can obtain information necessary to conduct its investigations, even if obtaining that infomation would burden a First Amendment right. As
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the Garde Court explicitly noted "it is clear that under the appropriate circumstances [the asserted) First Amendment rights would give way to the compellir.g government interest in nuclear safety " 673 F. Supp. at 606, if the Comission has demonstrated a '"ack of alternative means" to avoid an unnecessary infringement on any First Amendment associational rights.
673 F. Supp. at 607.
The Garde Court declined to enforce the Commission's subpoena because in the Court's view the Comission had not considered other ways, perhaps less j
burdensome, to obtain the information it sought. However, in the present 1
case, the information of interest to the Commission is the precise content of certain conversations. It is evident that by issuing a subpoena for the tape l
recordings of the conversations at issue the Commission is pursuing the least j
burdensome, indeed, the only possible means to obtain this relevant information. Simply put, the Commission has no other means to retrieve this material which is relevaat and material evidence regarding the questions at issue.
i The motion to quash is denied. The sabpoena is modified as set forth herein. The new return date is 1:'00 E.D.T., April 24, 1989, at the Office of the United States Attorney for the District of Massachusetts.
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It is so ORDERED.3
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For the Commission 0
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') Secretary of th) Comission 1
SAMUEL J:xCHILK Dated at Rockville, Maryland d-this W day of April, 1989..
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1 3In his Motion to Quash Mr. Comley "neither confims or denies that any taperecordings [ sic] or transcripts exist at the current time, or ever existed." Motion to Quash at 1. n.1.
The Comission has drafted this order under the assumption that Mr. Comley wnuld not waste our time and effort and the taxpayers' resources unless he possessed material he wished to shield.
Otherwise, a simple response that he possessed no such items would have j
sufficed to conclude this matter.
4Commissioner Curtiss was unavailable to participate in this decision.
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l UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION i
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In re OIA INVESTIGATION
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Docket No. OIA-89-02
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1 Certificate of Service I
i I hereby certify that a copy of the foregoing Commission Order i
(with correction) has been served upon the following person by first class mail, postage prepaid and in accordance with the I
requirements of 10 CFR Sec. 2.712.
Ernest C. Hadley, Esquire Counsel for Stephen B. Conley 175 Main Street Wareham, Massachusetts- 02571 Dated at Rockville, Maryland this 24 day of April 1989 l2 L
Office.of t p ecretary of the Commission t
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In re OIA INVESTIGATION
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Docket No. DIA-89-02
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Enctifiento nf Aprvien l
I hereby certify that a copy of the foregoing Commission Order has been served upon the following person by first class mail.
postage prepaid and in accordance with the requirement of 10 CFR Sec. 2.712.
Ernest C.
Hadley. Esquire Counsel for Stephen B.
Comley 175 Main Street Wareham. Massachusetts 02571 Dated at Rockville. Maryl.nnd this 25 day of July, 1989
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aqJw Office 0of the Secretary of the Commission l
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