ML20247N645
| ML20247N645 | |
| Person / Time | |
|---|---|
| Issue date: | 09/02/1986 |
| From: | Ragan I NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Hayes B NRC OFFICE OF INVESTIGATIONS (OI) |
| Shared Package | |
| ML20247N513 | List: |
| References | |
| NUDOCS 8906050412 | |
| Download: ML20247N645 (23) | |
Text
{{#Wiki_filter:- _ - - _ - _ _ - - _ - _ _ - - - _ _ _ _ _ O O l [ p.- h UNITE D STATES NUCLEAR REGULATORY COMMIS$10N l gnagnetesOf oof,0. c. 30ESS SEP t 9 86 L RE.MORANDUM FOR: Ben B. Hayes, Director Office of Investigations -FROM: Iludson B. Ragan Assistant General Counsel for Administration. Office of the General Counsel
SUBJECT:
EXPENSES OF CONFIDENTIAL SOURCES By memorandum of July 17, 1986, you requested our opinion as to whether the NucJest Regulatory Commission's (NRC) current appropriation law would provide the authority to support the payment of confidential sources for
- inforestion, travel, etc., and to reimburse investigators for appropriate related expenses".
For the current fiscal year Congress has enseted a lump-sum appropriation far the necessary. expenses of the NRC in carrying out the purposes of the Energy Reorganization Act of 1974, as smended, and the Atomic Energy Act cf 1954, as amended, under the broad category of ' salaries and expenses". See. Energy And Water Development Appropriations Puu!. L. No. 99-141, 99 Etat. 577-78 (1985). The language of NRc's appropriations act does not expressly provide for the payment of informers for information on their expenses.
- However, the well-settled "necessary expense" rule of appropriations law is that an appropriation made for a specific purpose is available for expenses necessarily incident to accomplishing that purpose unless prohibited by law or otherwise provided for by some other appropriation.
6 Comp. Gen. 619, 621 (1927); U.S. Geners) Accounting Office. Principles of Federal Appropriations law, at 312 (1982). Given the obsence of specific statutory authority in the appropriation act for such expenditures, the NRC's appropriations and other statutory authority must be analysed to determine whether the purpose is authorized. The NRC's appropriation " Salaries and Expenses" provides in pertinent part: For necessary expenses of the commission in carrying out the purposes of the Energy Reorganization Act, as amended, and the Atomic Energy Act, as amended * *
- Energy Aid water Development Appropriations. Pub. L. No. 99-741, 99 stat.
577-78 (1(r85). Under Section 206 of the Energy Reorganization Act of 1974 os an ended, the Commission is expressly "authorised to conduct such reasonable inspections and other enforcement activities as needed to insure 8906050412 890522 COMMS NRCC PDR CORRESPONDENCE PNU
w &-{, ~2-compliance with the provisions of (Section 206)' subjecting persons to a civD penalty for knowingly and consciously faUing to notify the Commission of any regulated facility, activity or basic component that (1) faus to comply with the Atomic Energy Act er (2) contains 's defect creating a substantial safety Reorganization Act < of 1974 42 U.S.C. 5 8847 (1974). Commission is authorized under the Section 161c of the hazard. Energy Atomic Energy Act of 1954 to *make such studies and investigations, obtain Furthermore, the as the Commission may deem necessary or proper to such information... in this set. or in the osaint it in exercising any authority provided' Atomic Energy Act of 1954, administration or enforcement of this Act * * **.There are several. provisions of the Atom 42 U.S.C. I 2201c. impose criminal penalties for the wUlfull or attempted violation of its See. Atomic Energy Act of 1954, 42 U.S.C. Il 2272-73; 2284. that Furthermore, there are provisions that-impose criminal penalties on those (1) provisions. who harm nuclear inspectors in performance of their duties or (2) who intentions!!y and wUlfully sabotage or attempt to sabotage nuclear faculties or f uel. See. Atomic Energy Act of 1954, 42 U.S.C. Il 2283-84. Thus, the Energy " Reorganization Act and the Atomic Energy Act authorize the Commission to conduct such investigations and obtain such information it Nevertheless, deems necessary to enforce certain civil and criminal laws. statutes a } both technique. In supporting its request for the FY 1986 lump-sum appropriation, the Commission submitted its budget estimate to the House appropriations committee explaining how the Commission proposed to use the following: The Office of Investigations is an independent offlee which conducts and supervises agency investigations of all allegations of wrongdoing by other than employees and contractors, including reactor licensees, fuel cycle lleensees, and materials safety and
- The Office of safeguards and fac0Mes licensees. Investigations maintr.Ms liason wit to ensure the timely exchange of inforestion of interest and enke appropriate referrals to the Department of Justice on criminst matters.
Hearings Before A Inergy And Water Development Appropriations For lif56: Subcom W9th Cong., 1st Sess. 613 (1985). Neither the Commission's budget Nritifiestion before Congress nor the related hearings informed Commisrion in the administration or enforcement of the Energy Moorga the payment Act or the Atomic Energy Act. availcble for carrying out these purposes of the Energy Reorganization Act and the Atomic Energy Act, the Commission is vested with the discretion te expenditures are necessary to assist in investigating and l determine which 1
gg ~ ~3- ~ However. Comptroller General decisions make clear that onforcing these Isws.in the absence of statutory authority expressly providing for the pa informers for the furnishing of information regarding violations os civil and criminal laws, the information must be ' essential or necessary* to the enforcement of the law as distinguished from cffective administration and 413 (1929): 9 Comp. being merely ' helpful or desirable" (See. 8 Comp. GenB-172259. AprU 29. TD U.S. General Accounting Office. Principals of Federal Gen. 309 (1930): 3975 (unpublished)t Appropriations Law, at 3-177 378 (1942). No.vertheless, the Comptroller General decisions have not reached uniform results on this issue. In addressing this issue in 8 Comp. Gen. 413. 814 (1929) for the Secretary of the Jntador, the Comptroller General Stated: An appropriation general in terms is available to do the things essential to the soooreplishment of the work authorised by the As to whether such an appropriation may appropriation to be done. properly be held avausble to pay a reward for the furnishing of information, not essential but probably helpful to the accomplishment of the authorized work, the deciatons of the The doubt arises accounting officers have not been uniform. generally because such rewards are not necessaruy in keeping with the value of the information furnished and possess elements of a gratuity or gift made in appreciation of helpful assistance rendered. e e e There being grave doubt as to the propriety of regarding an appropriation. general in terms available for the payment of such rewards, and the Congress having on many occasions accepted the matter as one for its consideration and expression, it appears the duty of this office to require those in administrative places who desire to offer rewards for information work, to submit their requirements to the Congress for specific legislative authority with respect to all appropriations hereafter to be made. Although the reward to informers in that decision was allowed. the Comptroller General stated, as noted. that specific legislative aut decision (!d. at 615). Subsequently, the Comptroller General applied the be required in holding itTeacSed in 8 Comp. Gen. 413 to a decision involving the Secretary 309 (1930). In 9 Comp. Gen 930 the of Commerce, 9 Comp. Gen. the general appropriation for the Lighthouse Comptro!!ar General held thatof Commerce was not available for use by the Service of the Department Secretary of Commerce to offer awards for information laading to the apprehensiten and conviction of persons committing acts of vandalism against 9 Comp. Gen. 309, alda to nsMgstion maintained by the Lighthouse Service.Furth all (1930). awards were not essential but merely helpful.of awards was a new feature bei 1.ighthouse Service regarding the enforcement of a law making it a that the affering
er i i h navigation siseseneanor and bsposing a fine for obstructing or interfering w t Id. at 311. As such. the sids maintained or estab!!shed by the Service. Comptroller General stated that the matter was appropriate for submission Congress for consideration of whether the enactment specific legislation fo that purpose is necessary or proper. idd On the other hand, the Comptroller General has rendered decielons perraitted the expenditure In 5-193922 absence of specific legislative authority for such expenditur iding for the internal Revenue Service's general appropriation statute prov "necessary expenses of the Internal Revenue Service for investigation and enforcement activities * * ** was sufficiently broad to support expenditures for the protection, support and maintenance of an info Crime Control Act of 1970. of Justice under the Organised The Comptroller General observed Department B-183922. August 5.1975 (unpublished). that the IRS appropriation statute neither contained specific authority nor furthe the legis!stive specific appropriation for such expenditures. history of th e appropriation statute was sDent as to the meaning of
- investigation and enforce:nent activities'.
Id. Thus, the Comptroller Geners! reasoned that the Commission of the TD was vested with a large of expenditure are necessary in aid to which However, the Comptroller General snessure of discretion as investigation and enforcement activities. noted that, as early as 1969. Congress was expressly advised of the Treasury For Department's extensive involvement in this area and did not object. these reasons, the Comptroller General determined that the IRS's 1975' appropriation statute was sufficiently broad to support the expenditu question., 53. B-183922 August S.1975 (unpublished). In an earlier decision involving the Forest Service, the Comptroller Gene held that the payment of compensation to informers for information conc violations (such as da!!berately set forest fires, thef t c( government timber. unauthorized occupancy. and vandalism) may be considered essential or as distinguished from helpful or desirable, in the effective administration and enforcement of a sistute making the Forest Service necessary, responsible for protecting the national forests against destructio degradation, and authorizing it B-172259. April preserve the forests from destruction (16 U.S.C. 6 551).The Corspiroller Service appropriations provided for expenses necessary for forest prote 29 1971 (unpublished). preventing utDisation and was specifically available for fighting andAfter l and damsgo to the national forests are caused by persons violating law forest fires. Id. use of the national service. the Forest General "since prevention is not always possible their law enforcement must rely on apprehension and prosecution. leads to identifying For some cooperation in providing information must be heavily relied on.
O O fG-4 ~ 1 essas. the necessary information la not spontaneously affered or is intentionally withheld for possible monetary gain. Finally, the Forest Service noted that there potential informants usually possess information which could prove invaluable to successful investigation, identification and prosecution of violators. J,d,., f Except for the 1971 decision (B-172259. April 29.1971 (unpublished). the Comptroller General has either strongly admonished agencies to seek specific kgialative authority (8 Comp. Gen $13 (1929): 9 Comp. Gen 309 (1930) or rolled on the fact that Congress had been informed by the agency of the cetivity and Congress did not object (B-183922 August 5 1975 (unpublished). Moreover. Congress - has considered the issue and has granted statutory cuthority. for rewards for_ the furnishing of information in several other cituations. See, for example: 16 U.S.C. I 668 (information on capturing, buying or selling bald eagles): 16 U.S.C. I 1540(d) (violations of Endangered Species): 18 U.S.C. I 1751(g) (information concerning Presidential assassinations or attempted assassinations): 18 U.S.C. 5 3056 (rewards by the Secret Service): 21 U.S.C. I 886 (information on violations of laws administered by the Drug Enforcement Administration); and 39 U.S.C 5 404(a)(B) (information on violations of postal laws). These enactments create the implication that such expenditures should not be incurred except by express authority or by expressly informing Congress that such czpenditures will be incurred. As.to whether other appropriations are availdble, we note that under the provisions of the Atomic Weapons and Special Nuclear Materials Rewards Act. the Attorney General is authorised to make a reward to persons who furnish original information to the United States concerning !!!egal introdvetion, manufacture. acquialtien or export of special nuclear material or atomic weapons or conspiracies relating thereto. See. 50 U.S.C. Il 47a. 47b (1974). 1974 U.S. Code Cong. & Ad. News 4050 "M2. It seems that appropriations, See. to administer that law have been made to the Department of Justice. Departments of Commerce. Justice. and State, the Judiciary and Relaied Agencies Appropriation Act,1986. Pub. L. No. 99-190. Title II,1985 U.S. Code Cong. & Ad. News (95 Stat 1141). Consequently, the payment of informants in the context of investigations involving violations of the Atomic Weapons and Special Nuclear Materials Rewards Act would not be authorised because it would be an expenditure that comes within the scope of some other appropriation
== Conclusion:== In the absence of specific legislative authority for paying informers for information concerning the violations of criminal or civil laws, there is no precise rule that can be formulated for when the NRC is authorized to pay informers. In each instance, the NRC's appropriations and other statutory authority must be examined to determine whether the purpose is authorised. Without clong with evaluating the administrative justification that is offered. I
. Q jQ cn explanation of the speeffic circumstances under which a partteular payment is proposed, a sound determination that the payuent is authorised becomes difficult to make. Even were such an explanatkti to be provided, a dotarmination that such expenditures are authorised would not be on sound ~ legal ground given that the Atomic Energy Act, the Energy Reorganization and the current appropriations act along with its legislative hidory are all For sGent on the use of such an investigative technique by the Commission. the foregoing wasons. we are unable to conclude that auch expenditures would be authorised and would advise your office to either have the Commission seek specific legislative authority, perhaps through a minor revision to next years appropriation act. or inform Congress through our budget justification supporting the appropriation act that such an investigative technique wiD be employed in our investigations for enforcement of the Atomic Energy Act of 1954 and' the Energy Reorganization Act of 1974. However. abould a particular situation arise that you determine has a di*ect connection and la essential to carrying out an investigation on a violatfor of the Atomic Energy Act or Energy Reorganization Act, you abould promptly seek our advice. With respect to your reference to AEC Enual Chapter 1001. ' Expenditures of A Confidential Nature'. the NRC has no similar set of established procedures The AEC Enual Chapter 1001 is no longer governing such expenditures. . affective or nperative since it was not adopted by the NRC as part of its a l approved NRC Management Directives System. See. U.S. Nuclear Regulatory Commission NRC knual Transmittal Notice (July 15, 1986): U.S. Nuclasr Ccomission Announcement No. 4 (January 30, 1975). Regulatory Consequently, the AEC knual Chapter 1001 does not represent an expression of current Commission policy regarding such expenditures. l Hudson B. Ragan Assistant General Counsel for Administration Office of the General Counsel 1 cc: William C. Parler. OGC Guy H. Cunningham. 0GC James A. Fitzgerald. OGC James Murray. OGC 8 1
.o. 00ESTION 28. Prior to issuance of tne Ellison contract, did Mrs. Connelly and/or Mr. Stello provide the information requested by Mr. Parler. in his August 25 memorandem to Mrs. Connelly? l Prior to issuance of the Ellison contract, did Mrs. Connelly. and/or Mr. Stello seek OGC sdvice with regard to the contract? If so, what was the nature of the advice sought. by Mrs. Connelly and/or Mr. Stello and what was the nature of l the advice provided by OGC7 t i ANSWER. According to Mr. Parler's memorandum dated August 25, 1988, Mrs. Connelly asked Mr. Parler for a legal opinion on the establishment cf an informant's fund. That same day, Mr. Parler wrote a memorandum back to Mrs. Connelly l indicating that, until this issue is resolved generically, if a situation arises in which she determined that the availability of such funds has a direct. connection and is essential to carrying out an investigation that relates to the agency's public health and safety mission, she should promptly provide the facts and seek OGC advice on the specific matter. Subsequently, I. L Mrs. Connelly advised Mr. Stello that she believed the Ellison case did have safety implications and that she believed Mr. Ellison would not cooperate with the investigation unless he were compensated for his effort. She also advised him that she believed the investigation could not be successfully completed without Mr. Ellison's cooperation. Mr. Stello then requested a meeting with Mr. Parler to seek his advice on the legality of paying an individual for providing information and cooperating in an investigation, l L
-a h. j .g i o i QUESTION 28(Continued) l On August 25, 1988,- prior to the issuance of the General Counsel's memorandum l of the same date, Mr. Parler recalls that Mrs. Connelly informed him that there was an imediate need for access to information. Shortly after the General Counsel's' August 25, 1988 memorandum was issued, the first working day as he now recalls, he was asked to attend a meeting in Mr. Stello's office - I with Mrs. Connelly. At that meeting, the General Counsel, to the best of his recollection, was i informed by Mr. Stello that-the information could raise possible safety l t . issues. The General Counsel was advised at that meeting by Mrs. Connelly that the information could not be obtained voluntarily. At that meeting, l l the General Counsel informed Mrs. Connelly, and Mr. Stello of the agency's broad subpoena power under Section 161c. of the Atomic Energy Act of 1954, j i as amended.. Mrs. Connelly informed him that a subpoena would not work because I the information probably could be destroyed before the agency could get the l subpoena enforced, and that, in any event, the investigation needed the cooperation of the individual to help sort through the information. With this-background, the General Counsel advised Mrs. Connelly and Mr. Stello at that meeting that contractual authority could be used provided that the deter-mination was made in accordance with his August 25, 1988 memorandum, that ) funds were available for that purpose, and that the applicable procurement rules were satisfied. i i _ _ - - _ _ _ _ - _ _ _ _ - - - _ _ _ - _. _ _ _ - _ = _ - _ - _ - _. -
OUESTION 28 (Continued) I' i 1 l No one discussed the specific circumstances of the matter with the General Counsel or the specific details of the contract with him or with anyone in OGC. It is Mrs. Connelly's recollection that Mr. Parler indicated he did not need to know the details of the investigation nor the parties involved. Shortly after the contract was executed, Mrs. Connelly, at the Chairman's request, briefed Mr. Parler on the details of the investigation. Mr. Parler notes that this briefing occurred on September 2,1989. .___.____m__________ _a
QUESTION 29. Were documents, records, tapes, etc. pertaining to this matter destroyed? If so, who is conducting an inquiry into the propriety of destruction of documents and/or other materials i pertaining to the Ellison contract,-including: documents and/or tapes provided by Mr. Ellison; NRC administrative records; notes, memoranda, reports, analyses, or other documents, prepared by NRC officials and/or other NRC staff? l What such documents and/or materials have been destroyed? 'What was the purpose of any such destruction? Which NRC employees were responsible for any such destruction? Who authorized any such destruction? ANSWER. The Office of Inspector and Auditor did not destroy any documents, records, tapes, etc. pertaining to this matter. James L. Blaha was responsible for coordinating the administrative aspects of the Ellison contract.to include the information used in preparing the contract document. Prior to preparation of the contract, he wrote on a piece of note paper several pieces of information (i.e., Purchase Order number, appro-priation/ allotment number, FIN number, and B&R number) which were needed to complete the contract form. This piece of note paper was retained in a file folder until February 28, 1989, when Mr. Blaha on his own authority discarded it because he thought it was not needed. The information on the note paper was recorded on the final contract.
+ t OUESTION 29 (Continued) Edward L. Halman, Director, Division of Contracts and Property Management, is the NRC official who prepared and signed the Ellison contract. During the drafting of the contract Mr. Halman made hand-written notes on sheets of paper for the purpose of refining the contract language. These notes were not seen by anyone other than Mr. Halman and did not involve any matters other than what ultimately appeared in the contract document. Mr. Halman retained these notes until February 28, 1989, when he received a copy of the fully-executed contract. At that time, Mr. Halman felt that the notes were no longer needed and, acting upon his own authority, discarded ' them. The Office of Inspector General is initiating a review related to various aspects of OIA's investigation of Mr. Fortuna. The Inspector General (Acting) will be communicating with you by separate letter concerning this review. V
a n .= QUESTION 30. What was Mr. Blaha's role in the Ellison contract? Was it appropriate for an assistant to the EDO to participate, as did Mr. Blaha, in an investigation of NRC. staff conducted by the OIA, an entity that' reports directly to the Commission?. Who is conducting an inquiry into whether participation.by the Office of the EDO in the OIA investigation was proper? What is the result of any such investigation? ANSWER. Mr. Blaha's role in-the Ellison contract was to provide administrative assis-tance to OIA in preparing the contract. In addition he handled all adminis-trative matters for 01A during the interviews of Mr. Ellison in Washington,. including obtaining transcripts of tape recordings, making lodging arrange-ments, obtaining copies of documents and tapes, securing video and audio-recording equipment and supplies, and drafting documents for the OIA Director. He served as liaison with other NRC offices such as the Division of Contracts, the Office of the Centroller, and the Office of Administration and Resources Management. Mr. Stello also asked Mr. Blaha to ensure that any new or immediate safety concerns were brought to his attention. With respect to participation in the investigation itself, at all times, Mr. Blaha worked under the direction of Mrs. Connelly or Mr. Resner. All discussions between Mr. Blaha and Mr. Ellison regarding Mr. Ellison's allegations took place in the presence of one of the OIA staff. With the OIA Director's approval, Mr. Blaha prepared a summary of the safety issues identified by Mr. Ellison. He briefed Mr. Stello on the new allegations. The summary was reviewed by the
[ QUESTION 30(Continued).. two OIA staff members to ensure all allegations made by Mr. Ellison had been documented either in the report or in other documents obtained or prepared by OIA. At no time did Mr. Blaha have the opportunity to change, sway, or influence the outcome of the investigation and, in fact, after OIA obtained the information and documents provided by Mr. Ellison under the contract, Mr. Blaha played no further role in the investigation. There was nothing inappropriate about assigning Mr. Blaha to work with OIA. DIA has limited resources and has frequently requested assistance from the EDO in carrying out its investigative activities. Mr. Blaha was a logical choice in this instance because he was between assignments at the time ar.d he has an administrative background. Also, while he is not an engineer, he has worked in NRC technical areas and is knowledgeable of the types of safety issues that would be of concern to the NRC staff. However, the Office of Inspector General is initiating a review related to various aspects of 01A's investi-gation of Mr. Fortuna. The Inspector General (Acting) will be communicating with you by separate letter concerning this review.
.~i-00ESTION 31. Why did Mr. Herr and Mr. Resner, in affidavits submitted to the r U.S. District Court, fail to state that the inquiry involving Fortuna was being conducted in August and September 19887 Why .did they state instead that the inquiry was being conducted in October and November 1988, thereby leaving the impression that it was not underway in August and September 19887 How many OIA staff-hours were expended on the OIA inquiry into the Fortuna matter.in each of the following months: August 1988, September - l 1988, October 1988'and November 1988? . ANSWER. The phrase "In October-November 1988" in Mr. Herr's and Mr. Resner's affida-L vits was simply an attempt to establish for the court a general timeframe in which events in question occurred. The statement was not intended to indicate when the' inquiry began or how long it was ongoing. There was no attempt by Mr. Herr or Mr. Resner to create a misimpression regarding when the OIA
- inquiry was opened, and 01A's records clearly indicate the case was opened on August 12, 1988.
The following are employees' best estimates of time expended during August, September, October and November: August 85 hours September 173 hours j October 48 hours November 90 hours j i i
l -QUESTION 31 (Continued)' These are very rough estimates based on their recollections of events which. took place four to eight months ago, and some employees.did not have a high level of. confidence in their estimates. __.-__.____..__.---------------------------.--____-----s
i QUESTION 32. In stating that information leading to Fortuna becoming the subject of the OIA inquiry was obtained after November 4, 1988, what information did Mr. Herr and'Mr. Resner have in mind? What is being done to determine the nature of such information? Has Judge Rosenthal asked Mr. Herr and Mr. Resner to provide such information to Judge Rosenthal? ANSWER. Mr. Herr's and Mr. Resner's affidavits do not say information obtained after November 4, 1988 led to Fortuna becoming the subject of the investigation. Rather, the affidavits state: Plaintiff Fortuna was interviewed...on or about November 4,1988, at which time he provided some general background information to 01A. Subsequent investigation and information obtained by OIA led 01A to conclude another interview (of Fortuna) would be necessary. Because the questions 01A planned to ask Plaintiff Fortuna at this subsequent interview would focus on the manner Fortuna performed his official duties, 0IA concluded that Fortuna was now a " subject" of the investigation. Judge Rosenthal was given to understand that any information acquired by OIA officials bearing upon any then pending investigation involving Mr. Fortuna
QUESTION 32 (Continued) -2 was contained in the investigative files turned over to Judge Rosenthal on or shortly after February 28. 1989. In light of that understanding, Judge Rosenthal saw no necessity to inquire of Messrs. Herr and Resner whether, in breach of their clear obligation in the matter, they had none-theless withheld relevant information at the time of the transfer of the files. l ) 4 l 1 l l
,L -o I OUESTION 33. What inquiry is being conducted to determine the nature of Mr. Thompson's state of knowledge of the Fortuna matter-on February 9, 1989 when Mr. Thompson directed Mr. Fortuna to appear before OIA in the manner specified by OIA? On February 13, 1989, when Mr. Thompson reiterated his directive . Mr. Fortuna? On February 17, 1989, when, according to'Mr. Hayes, Mr. Thompson suggested to Mr. Hayes. that if Mr. Fortuna wished to resign that it would be r better to do so that day rather than after NRC had taken an action against Mr. Fortuna? On February 22, 1989, the day on which Mr. Fortuna was given a notice of intent to terminate him? ANSWER. I ' The Office of Inspector General is initiating a review related to various aspects of= 0!A's investigation of Mr. Fortuna. The Inspector General j (Acting) will be communicating with you by separate letter concerning this review. i 4 ________________________.____w
!~ I 2 CUESTION 34 What instructions did Mr.. Thompson receive from his superiors with respect to actions he should take with regard to Mr. Fortuna? What such instructions were issued prior to February 10, 19897 On February 10 thru February 13? On February 14 thru February 17? On February 18 thru February 207 On February 217 Subsequent to February 21? ANSWER. Mr. Thompson received no specific instructions from his superiors with respect to any action he should take with regard to Mr. Fortuna, e Mr. Thompson was advised to coordinate fully on any actions he was considering or planning to take with the Office of General Counsel and the Office of Personnel during the period identified. Mr. Thompson was also advised to meet with OIA to listen to some selected tapes prior to proposing the disciplinary action.- This advice was given during the period February 14, 1989 thru February 17, 1989, and the meeting to hear the tapes was held on February 17, 1989. Subsequent to February 21, Mr. Thompson was urged to consider allowing Mr. Fortuna to return to duty status after he had testified before Judge Rosenthal. l l l w
l = l l OVESTION 35. What is the nature and substance of the discussion concerning the Fortuna matter that took place at the NRC SES meeting that was convened during the week of February 14, 19897 ANSWER. During the five day NRC SES meeting there were a number of informal discussions that took place concerning the Fortuna matter. The discussions were primarily between senior members of the ED0's office, senior members of OIA, and involved OGC attorneys. The discussions centered on the following issues or information concerning Mr. Fortuna's response to Mr. Thompson's directives: (A) Mr. Fortuna's initial refusal to comply with Mr. Thompson's February 9th directive to appear on February 15th for the OIA interview as well as issues raised by Mr. Greenspun in his letter of February 13, 1989, and 01A's wish to continue the interview as scheduled on February 15. This resulted in Mr. Thompson's decision to return to NRC headquarters on February 14th and to meet with Mr. Fortuna to fully ensure that Mr. Fortuna understood Mr. Thompson's directive. Mr. Thompson held the meeting with Mr. Fortuna on the afternoon of February 14th, at which time the February 14 memorandum was given to Mr. Fortuna. (B) The content of Mr. Thompson's February 14th memorandum and Mr. Fortuna's initial response.
QUESTION 35'(Continued) (C) Mr. Fortunas subsequent agreement to appear for the OIA interview on February 15. (D) Mr. Fortuna's refusal to respond to 01A's questions during the OIA attempted interview on february 15, 1989. .(E) Mr. Thompson's plans to return to headquarters to meet with OIA, OP, and OGC' representatives to hear some tapes selected by 01A. Mr. Thompson returned to NRC headquarters on Thursday afternoon, February 16, 1989. The selected. tapes were heard on February 17, 1989, and OIA briefed Mr. Thompson and OGC's representatives on 01A's investigation to date. (F) The existence of an additional allegation of misconduct involving l l Mr. Fortuna on a totally separate matter was disclosed by OIA. l. l l l 1 l
p. QUESTION 36. Did Mr. Thompson discuss the Fortuna matter with Mr. Stello on Tuesday, February 21, 19897 What was the nature and substance of this conversation? ANSWER. Yes, the issue was discussed twice. At the morning staff meeting, the EDO was informed that a meeting was scheduled at 9:00 a.m. that morning with Ben Hayes, an 0GC representative and an Office of Personnel representative.. Mr. 'Stello 4 was informed.that the purpose of the meeting was to obtain the' advice of OGC and-Personnel.on whether Mr. Hayes should be designated as the recommending official for any action as a result of Mr. Fortuna's refusal to carry out Mr. Thompson's directive. Mr. Stello requested that he be kept informed if i there were any problems. 4 'Later that morning, Mr. Thompson left the meeting with Mr. Hayes to brief Mr.- Stello on the strong recommendation by OGC and OP that Mr. Thompson be the recommending official despite the wishes of Mr. Hayes that he be designated the recommending official. i j m
-1, OVESTION 37. What legal memoranda did Mr. Thompson.h' ave available to him ~ concerning.his actions vis-a-vis Mr. Fortuna at the. time he: signed his various memoranda affecting Mr. Fortuna? ' ANSWER.
- None, I
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