B-236256, Dec 15, 1989

B-236256: Dec 15, 1989

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The Nuclear Regulatory Commission's (NRC's) use of federal funds to obtain evidence contained in tape recordings of conversations is authorized when the evidence sought is to be used in an investigation related to possible safety problems at a power plant licensee of the Commission. The expenditure directly facilitates a specifically authorized agency activity for which general appropriations are available. 3.The NRC may purchase and use evidence contained in lawfully recorded tapes. Is permissible under federal law. Regardless of whether the recording is made in violation of state law. Unless the recording is made for the purpose of committing a criminal or tortious act. 4. Contract between the NRC and a private party containing a provision that bars the private party from discussing with law enforcement official or members of Congress information concerning possible criminal violations involving failure of NRC officials to deal with dangers to public health and safety at a nuclear power plant is unenforceable as contrary to public policy.

B-236256, Dec 15, 1989

MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous substances - Evidence - Investigations - Funding DIGEST: 1. The Nuclear Regulatory Commission's (NRC's) use of federal funds to obtain evidence contained in tape recordings of conversations is authorized when the evidence sought is to be used in an investigation related to possible safety problems at a power plant licensee of the Commission. The expenditure directly facilitates a specifically authorized agency activity for which general appropriations are available. 3.The NRC may purchase and use evidence contained in lawfully recorded tapes, in an ongoing administrative proceeding. MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous substances - Evidence - Investigation - Telephone calls 2. Recording a conversation, with the consent of one of the parties to the conversation, is permissible under federal law, regardless of whether the recording is made in violation of state law, unless the recording is made for the purpose of committing a criminal or tortious act. 4. Contract between the NRC and a private party containing a provision that bars the private party from discussing with law enforcement official or members of Congress information concerning possible criminal violations involving failure of NRC officials to deal with dangers to public health and safety at a nuclear power plant is unenforceable as contrary to public policy.

Honorable Philip R. Sharp Chairman Subcommittee on Energy and Power Committee on Energy and Commerce House of Representatives:

This is in response to your letter, dated May 23, 1989, in which you requested that our Office respond to several questions related to an investigation by the Office of Inspector and Auditor (OIA) of the Nuclear Regulatory Commission (NRC). /1/ OIA's investigation concerned certain allegations regarding Roger Fortuna, Deputy Director of the Office of Inspection (OI). These allegations were related to, among other things, OI's handling of an investigation of alleged improprieties at the Nine Mile nuclear power plant. /2/ Your questions involve a contract OIA entered into with Douglas Ellison, a former employee of the plant, to obtain evidence which Mr. Ellison claimed was relevant to Mr. Fortuna's alleged improper conduct.

As agreed with your staff, we have conducted no independent investigative or audit work. We have confined ourselves to the legal questions you have asked, as clarified by your staff at a meeting on September 6, 1989. These are as follows:

I. Whether NRC's payments to Mr. Ellison of $8,122.58 under the contract were authorized.

II. If such payments were not authorized, whether the government may collect the improper payment from NRC officials, or from Mr. Ellison.

III. Whether making tape recordings of telephone conversations and direct meetings, in which the other party was unaware that the conversations were being recorded, violates federal law or the laws of the District of Columbia, New York, or Florida.

IV. Whether, in light of NRC guidelines or policies, as well as federal and state laws, it would be permissible or proper for NRC to:

A. Purchase the tapes as part of a contract with Mr. Ellison; and

B. Use the tapes as part of its administrative actions against Mr. Fortuna.

V. Whether a provision in the contract prohibiting Mr. Ellison from discussing the information furnished to NRC without NRC's written authorization may be enforced to prevent Mr. Ellison from providing information to law enforcement officials or members of Congress.

We have concluded as follows:

I. NRC' payments to Mr. Ellison were authorized under the circumstances of this case.

II. In view of our conclusion that the payments were authorized, the government may not recover those payments from Mr. Ellison.

III. Making tape recordings of telephone conversations and direct meetings, in which the other party was unaware that the conversations were being recorded, does not violate federal law or the laws of the District of Columbia or New York. However, it does violate the laws of Florida.

IV. NRC guidelines are inapplicable because the taping was not done on NRC telephones, nor was the person doing the taping employed or under contract with NRC at the time of the taping. Accordingly, the guidelines do not constitute a legal impediment to NRC's purchase or use of the tapes. Because the guidelines contain no statement of policy suggesting any broader restrictions on NRC than those specified, it would be, at best, speculative to infer that NRC's actions, to which the guidelines are plainly inapplicable, are nonetheless improper. Further, because NRC, as a federal agency, is subject to federal law, the agency may lawfully purchase and use the tapes.

V. The "no-discussion" provision of the contract may not be enforced so as to prevent Mr. Ellison from providing information to law enforcement officials or members of Congress.

We hope our comments are helpful to you. We have enclosed our more detailed analysis of these issues. Under our usual procedures, this opinion will be available to the public 30 days from its date, unless you release it sooner.

/1/ Under rules promulgated by the NRC, OIA's responsibilities include investigating the integrity of NRC programs and operations, and investigating allegations of NRC employee misconduct. 10 C.F.R. Sec. 1.21 (1988).

/2/ Under rules promulgated by the NRC, OI's responsibilities include conducting and supervising investigations within the scope of NRC authority, including investigations of licensees, but not those concerning NRC employees and contractors; and keeping the Commission and involved NRC offices informed regarding matters under investigation as they affect public health and safety. 10 C.F.R. Sec. 1.27 (1988).