Another Yucca conflict of interest alleged

Benjamin Grove

Friday, Dec. 6, 2002 | 11:06 a.m.

WASHINGTON -- Nevada lawmakers say the Energy Department has ensnared itself in another conflict-of-interest mess involving a law firm it hired to handle a Yucca Mountain matter.

The law firm hired to investigate a project manager who said he was trying to blow the whistle on the department's mishandling of project concerns, signed on to lobby Congress in favor of the project just weeks after completing a report that led to the man's firing.

Nevada lawmakers are calling for an investigation into conflict-of-interest issues with the law firm, Morgan Lewis, and the way the Energy Department has handled issues about the planned nuclear waste repository.

"It doesn't smell right," Sen. John Ensign, R-Nev., said. "With Yucca Mountain, it often doesn't."

The Energy Department previously ran into conflict-of-interest troubles after it was revealed that Winston & Strawn, the law firm it had hired to help produce the license application for the waste repository, lobbied on behalf of the project.

The latest claims come over the investigation into personnel disputes and allegations in the project's quality assurance program. In May 2001 the department hired international law firm Morgan Lewis to investigate.

A primary focus of the investigation was James Mattimoe, a Yucca quality assurance manager, who said he tried to blow the whistle on the department's mishandling of concerns raised by project workers.

He was fired after a Morgan Lewis report found he allegedly abused his power and retaliated against contractors. Mattimoe appealed to the Labor Department, which later found he was fired unjustly.

Eighteen days later, Morgan Lewis registered as a lobbyist for the Nuclear Energy Institute, the industry's top trade group, to lobby Congress in the successful effort to pass legislation naming Yucca Mountain the nation's high-level nuclear waste dump. NEI eventually paid Morgan Lewis $160,000 to lobby for Yucca Mountain.

Morgan Lewis has a history of working in and with the nuclear industry, ties that Nevada lawmakers say make it difficult for the firm to be fair.

"It's telling that a few weeks after their investigation (of Mattimoe) that Morgan Lewis goes out and gets a sweetheart deal with NEI," Sen. Harry Reid, D-Nev., said.

Nevada lawmakers now are calling for independent investigations of potential conflicts of interest in addition to their earlier request for a General Accounting Office probe of whether Mattimoe should have been fired.

Morgan Lewis officials, though, say they did everything by the book and say they had no conflict of interest.

The Morgan Lewis lawyer who led the Mattimoe investigation, Jay Gutierrez, has a long history of representing pro-Yucca nuclear utilities and has worked for at least 15 nuclear power plants, according to the company's website.

But Gutierrez said his investigation was fair and uncompromised by previous work for nuclear utilities.

"We have rules that govern conflict of interest and we satisfied those rules," Gutierrez said. "There is no conflict of interest with respect to our other representations and the Department of Energy."

Retired Yucca project chief Lake Barrett, who hired Morgan Lewis, declined to comment on how the firm was chosen when reached at his home in Rockville, Md.

But one Energy Department official who backed Gutierrez said he was well respected as an independent investigator and well-suited for the job. The official, who spoke on condition of anonymity, said the department needed a lawyer with nuclear waste expertise for the job.

Mattimoe said the law firm probe turned into a hostile, personal inquisition of him at a time when he was trying to blow the whistle on wrongdoing within the Yucca project.

The law firm's report led to Mattimoe's firing by the Energy Department contractor he worked for, Navarro Research and Engineering Inc.

Now Nevada officials are suspicious of Morgan Lewis' and Gutierrez's ties to the industry, and question why a nuclear industry lawyer was needed to sort out what amounted to a complex web of personnel disputes.

"It's pretty apparent that the DOE hired a law firm that has ties to the nuclear industry," Rep. Shelley Berkley, D-Nev., said. "The law firm selected an attorney that had done a lot of work for the industry, and he rendered a decision against the whistle blower.

"The audacity of the scenario almost slaps you in the face it's so apparent. This reiterates what we have said for a long time: that there is a pattern of conflict of interest and a pattern of impropriety."

Berkley said she would ask the District of Columbia Bar association and possibly the U.S. Office of Government Ethics to investigate.

Nevada lawmakers already have called on the General Accounting Office to investigate Mattimoe's firing, and Berkley said the probe should be expanded to include questions about Morgan Lewis and a possible conflict of interest.

Berkley and Reid also said they were mulling whether to request an Energy Department Inspector General's investigation.

"This is part of the a pattern the DOE has," Reid said. "This administration is tied so closely to the utilities, including the nuclear utilities, that it's almost hard to describe."

Nevada lawmakers are troubled by Morgan Lewis' lobbying record. Just 18 days after Mattimoe was fired, the law firm signed its 10-month lobbying deal with NEI. The lobbying lasted until the Senate voted in July to designate Yucca Mountain as the waste dump.

Two of the nation's leading legal ethics experts said Morgan Lewis had not clearly violated any ethical standards.

"It's plausible" that the firm was conflicted in its investigation by its work for the industry, said Robert Drinan, a priest and professor at the Georgetown University Law Center. But it would be very difficult to prove, he said. And Morgan Lewis has a near flawless reputation, Drinan said.

"I don't think we could presume that the law firm is wedded to the industry to do its bidding," Drinan said.

It doesn't appear that Morgan Lewis had a conflict of interest, but there may be a legitimate question as to whether the firm was in a position to be completely independent, said Seth Rosner, a 40-year veteran lawyer, former chairman of the American Bar Association's ethics committee and chairman of the Josephson Institute of Ethics.

"It does not sound like a violation of any legal ethical obligation," Rosner said. "(Morgan Lewis) may very well have come (to the Mattimoe investigation) with unfettered eyes."

The Energy Department first used its Office of Concerns Program to conduct an initial investigation of allegations against Mattimoe. The office faulted Mattimoe on several counts. The department then hired Morgan Lewis for more investigation.

Nevada lawmakers questioned why the department turned to a law firm at all for an internal personnel investigation.

"That the DOE needed to hire a high-priced, prominent law firm with strong ties to the nuclear industry seems like an unnecessary expense, with the end result being that the DOE got its desired opinion," Berkley said.

An Energy Department official declined to say how much the Morgan Lewis investigation cost.

For Energy Department officials to suggest that they needed lawyers who were nuclear industry experts is "an absolute falsehood," Reid said.

"This is an administrative issue," Reid said. "Why did they need to go outside the DOE?"

Susana Navarro, president of Navarro Research, said she dismissed Mattimoe based on the Morgan Lewis report. The report found Mattimoe's conduct on the job did not meet "the highest standards of behavior," she said. The report said Mattimoe had retaliated against two Yucca contractors and abused his authority, including, in one case, securing a personal loan from an employee he managed.

"Since Mr. Mattimoe was found by Morgan Lewis to have retaliated against other individuals, it is ironic that Mr. Mattimoe now raises the same kind of allegations that were raised against him and that Morgan Lewis substantiated," Navarro said in an e-mail response to Sun questions.

Gutierrez, the Morgan Lewis lawyer who conducted the investigation, said he conducted a thorough and professional review of allegations that had been made against Mattimoe, as well as other personnel conflicts within the project offices.

"We stand behind our report," he said.

Mattimoe denies retaliating against anyone, and acknowledged he had borrowed, as well as loaned, money to colleagues -- before he was their boss.

"I had a lot of concerns about Morgan Lewis," Mattimoe said. "I certainly never felt like they were being independent."

Mattimoe appealed his firing to the Labor Department based on whistle blower protection laws, and the department agreed Mattimoe had been unfairly terminated. The department ordered that Mattimoe be re-hired and compensated for losses.

Navarro appealed, and the appeal is pending a possible settlement. Meanwhile Mattimoe has taken work at the Los Alamos National Lab in New Mexico.

The Energy Department has faced conflict-of-interest allegations before with Chicago-based Winston & Strawn. The department hired the firm in 1999 to advise it on the application it is assembling for a Yucca Mountain construction license.

But the firm quit its $16.5 million contract in November 2001 amid controversy, after two years of work. After the Sun reported the firm was also working as a pro-Yucca Mountain lobbyist for NEI, a department inspector general investigated and ruled that Winston & Strawn had not disclosed its NEI ties before the department hired the firm. The firm denied any conflict of interest, but resigned saying the allegations were a distraction.

Nevada officials had said it was a conflict for the department to hire a pro-Yucca Mountain law firm before the department had officially approved the site. By law the department was supposed to be an independent manager of the project.

archive