in which certain allegations of prejudice were received against the hearing examiner.

The decision of the Commission in this matter was that the allegations made against the examiner were totally unfounded. What are your views as to the propriety of the Commission personnel accepting transportation, accommodations or other gratuities from parties to a hearing before them?

Mr. TUGGLE. Would you read the first part of that question again? I did not get it.

Mr. LISHMAN. I say these hearings have covered some aspects of the discontinuance matter decided in January 1969, involving the Burlington where certain allegations of prejudice were received against the hearing examiner in that case.

Mr. TUGGLE. Yes, sir, now what is your question on that?

Mr. LISHMAN. What are your views as to the propriety of a Commission examiner accepting transportation, accommodations or other gratuities from a party to the hearings before him?

Mr. TUGGLE. Well, I don't think as a general practice it is appropriate at all. The case you mentioned, there were some special circumstances in regard to transportation.

As I recall, the route of the trains proposed to be discontinued was about 900 miles, and hearings were held in eight or nine different cities in different States over that route, and the only practical means of making connections was for those that were going from hearing to hearing to travel by automobile.

The examiner assigned to that case did ride with some of the lawyers for different parties in the law suit. The only other way he could have made the trip, I suppose, would be by renting a car and keeping it for that time.

There were still special circumstances.

Mr. LISHMAN. Wouldn't it appear from the canons of conduct of the Commission that any acceptance of this type by hearing examiners would be a direct violation of the provisions therein?

Mr. TUGGLE. It may be that a very literal interpretation of the canons would indicate that, but as I say, it was a very special situation. I am quite sure it has been done very few other times, if then at all. Mr. LISHMAN. Are you familiar with the Executive order of May 10, 1965, prescribing standards of ethical conduct for Government officers and employees?

Mr. TUGGLE. I have read it. I can't say that I am familiar with it

now.

Mr. LISHMAN. Are you familiar with the fact that its pertinent provisions are also reincorporated in the canons of conduct of the Commission?

Mr. TUGGLE. I am quite sure that is correct.

Mr. LISHMAN. I should like to read from section 101 of this Executive order prescribing standards of ethical conduct for Government officers and employees.

It was released May 10, 1965:

Section 101: Where government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government. Each individual officer, employee, or advisor of government must help to earn and must honor that trust by his own integrity and conduct in all official actions.

Part II:

Except in accordance with regulations issued pursuant to subsection (b) of this section, no employee shall solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value from any person, corporation, or group which *** conducts operations or activities regulated by his agency, or has interests which may be substantially affected by the performance or non-performance of his official duty.

The section goes on to state that "it is the intent of this section that employees avoid any action, whether or not specifically prohibited by subsection (a) which might result in, or create the appearance of", among other things, "giving preferential treatment to any organization or person, losing complete independence or impartiality of action, affecting adversely the confidence of the public in the integrity of the government."

Mr. Chairman, I would like at this point to have in the record the complete text of this Executive order prescribing standards of ethical conduct for government officers and employees, together with the Commission's canons of conduct which contain the same provisions.

(See Appendixes E and F, p. 475 and p. 480.)

Mr. LISHMAN. Apparently in the case of Examiner Wilhite you did not believe there should be a strict interpretation of those canons of conduct and these provisions in this Executive order.

Is that correct?

Mr. TUGGLE. Let me answer that by telling what we did in connection with this case, which will take a little while.

A complaint was made about the things you have mentioned, accepting transportation and accepting some meals. When that complaint was made, why we investigated the extent to which this had gone on, and we found that there was an agreement among the lawyers representing all sides, the railroad had its lawyers there, the labor organizations had their lawyers, the various States had somebody from the attorney general's office, and in some instances from their State and regulatory commissions.

There was an understanding that going from point to point where the hearings were to be conducted that somebody would furnish the examiner transportation and as I recall, the official hearing reporter was along on the road with him. It was the same situation and he rode with the examiner along this route.

Now, I say quite frankly that there was a technical violation, but the Commission looked into it and found out that there seemed to be no-nothing except that it was based more on convenience than anything else.

We wrote to all the counsel of record in that case and asked them their opinion of the examiner's conduct, and received some, I believe 17 responses, lawyers and representatives of some of the labor organizations.

Thirteen of these were satisfied with the examiner and 12 of these were laudatory.

Four represented States or State commissions, two represented cities and counties, and six represented labor groups. For example, in his response, the assistant attorney general of Nebraska, who attended 7 days of hearings in five places, said, and this is condensed, that every witness was given proper treatment.

"I do not recall any rulings which I made marked exception to. The hearings were conducted very fairly."

The representative of the Nebraska State railway commission said, "not at any time did I sense an impartial ruling."

Mr. LISHMAN. May I interrupt at that point?

Is it correct that these extracts were written at a time when a decision was still pending on this particular case?

Mr. TUGGLE. That may be true. I don't know.

Mr. LISHMAN. Do you think it would be normal for a person who was trying to curry decision from the Commission to make complaints?

Mr. TUGGLE. I don't think it would be normal for all these people to tell a lie about it.

Mr. LISHMAN. You may continue.

Mr. TUGGLE. All right. And the assistant attorney general of Wyoming expressed the opinion that any allegations of the railroad's efforts to influence the examiner were unfounded.

"The examiner acted directly and with decorum." With regard to improper limitation of testimony he said, "I will state categorically that nothing of this nature happened within the State of Wyoming. He has no reason to expect that the hearing examiner's conduct was other than honorable. He described at length the details of the Newcastle hearing and made it clear that if there was misunderstanding on the part of the witness it was not the examiner's fault.

A member of the Board of Railroad Commissioners of Montana said that the examiner acted in a courteous and forthright manner, and allowed witnesses to introduce as much testimony as they desired to admit.

The examiner ruled in favor of them letting the testimony in:

Neither by the rules or otherwise did he unjustly or improperly preclude me or anyone else from presenting the testimony. All witnesses were given the utmost latitude in introducing their testimony.

The counsel for the city of Edgemont and the county of Fall River, S. Dak., says that he offered him:

*** and all the parties I represented every opportunity to present our evidence. He was very considerate and extended every opportunity he should have, and on several occasions Mr. Wilhite, in addressing the spectators present, requested any of them to come forward and testify if they so desired.

When the hearing was closed it was because there was no one else who had anything to say.

The counsel of the city of Lincoln said that the examiner properly conducted the parties present, whether represented or unrepresented by counsel. The witnesses were accorded full opportunity to state their statements in opposition, and one of the labor men, on the Nebraska Legislative Committee said:

I was accorded full opportunity to make an appearance. I am not aware that anyone was not similarly favored nor favorably impressed by the examiner's conduct.

The representative of the Locomotive Firemen & Enginemen said there was no denial to hear anybody.

At Alliance, it was stated the examiner would hear all the witnesses if it took until midnight.

The representative of the AFL-CIO in Montana said that while he vigorously opposed the railroad's efforts to discontinue passenger

trains, as to Examiner Wilhite's conduct it was beyond reproach and they felt he was conducting himself to the credit of his fellow examiners and the Commission.

The representative of the Locomotive Engineers now in Nebraska said he was able to present evidence.

A representative of the Railroad Trainmen in Nebraska said:

I did not notice the examiner reject testimony of anyone that was direct and to the point. He did exclude some testimony that was far afield, and as far as I can see, Mr. Wilhite ran the hearings about the same as all other ICC hearings that I have attended.

He did note that the examiner indicated he intended to divide up his riding from one hearing to another among various parties in the hearing.

"I asked him to ride in my automobile on two occasions." Now the examiner did not make an unfavorable impression on the lawyers who were participating in this hearing.

Mr. LISHMAN. Mr. Tuggle, isn't it a fact that all these letters you have quoted extracts from relate to the examiner's conduct in the hearing room and not one of them mentions any undue fraternization with the parties outside the hearing room?

Isn't that correct?

Mr. TUGGLE, Well, the extracts I have don't-there was no adverse comment.

Mr. LISHMAN. Would you say it is correct that those letters do not show what went on outside the hearing room

Mr. TUGGLE. No; I don't recall.

Mr. LISHMAN. You don't recall. Well, isn't it a fact that your general counsel's office and your director of personnel and your managing director all found that the fraternization by this examiner outside the hearing room warranted his censure?

Mr. TUGGLE. I don't recall about that. Let me say this, though. That after these complaints were made and the hearings were completed, of course, the examiner had nothing further to do with that case. It was assigned to another examiner, who was absolutely a stranger to it, and he prepared the draft report for consideration by division 3.

There was assigned to review this record a man from the general counsel's office, and some experienced examiners, and they found that all the rulings he had made, there was certainly nothing improper about any of them.

Mr. LISHMAN. Mr. Tuggle, I am asking about this gentleman's association outside the hearing room. You have already given us extracts in profusion from parties before the proceeding who said that there was no bias inside the hearing room.

Let's accept that. How about his conduct outside the hearing room? You say you don't know what happened there?

Mr. TUGGLE. That was criticized, as I recall, by three different people.

Mr. LISHMAN. Wasn't it also the basis for this recommendation by your own chief counsel, your own director of personnel, and your own managing director that the man be censured for what he had done? I will read to you from their———————

Mr. TUGGLE. Let me say I am not familiar with it.
Mr. LISHMAN. I would like to read you-

Mr. TUGGLE. I was not told what I was going to be asked about. I just don't recall.

Mr. LISHMAN. I will read you a memorandum. This is from the files of your Commission. It is dated December 19, 1968, and it is a memorandum addressed to the Commission on this very matter.

On pages 7 to 10 thereof, it deals with the topic, "Have the Canons of Conduct Been Violated?" and comes to the conclusion that they have been violated to such an extent that this hearing examiner should be censured.

Now I will just read you an extract from your own shop.

Mr. TUGGLE. Which page are you reading?

Mr. LISHMAN. I am now going to read from page 9.
Mr. SPRINGER. What is the date of that, Mr. Counsel?
Mr. LISHMAN. December 19, 1968.

Mr. SPRINGER. You are reading from page 9 now?
Mr. LISHMAN. Yes, sir; the last paragraph:

In conclusion, the record establishes without contradition that, during offhearing hours, Hearing Examiner Wilhite accepted from the railroads and others the loan of a top coat, food, refreshments and automobile travel between places of hearing.

There is a footnote which says:

Acceptance of transportation on Commission scheduled official business constitutes an unauthorized augmentation of the Commission's appropriations. If automobile travel is the only means of transportation, a car should have been rented by the examiner for his sole use or the use of himself and the reporter. Now continuing back from the footnote:

While his behavior might have been purely innocent and friendly in nature, Mr. Wilhite in my opinion, used bad judgment in not avoiding action as required by section 14-(a) and 14-(b) of the Canons, which might create the appearance of losing complete impartiality.

Accordingly it is recommended that he be censured and that a copy of said censure be placed in his personnel file. A draft of a letter of reprimand is attached as Exhibit A.

Now I take it that you interpret the canons quite differently than the general counsel's office and the director of personnel and the managing director of the Commission.

Mr. TUGGLE, No; I think your conclusion is mistaken about that. I agree with what they say here, that he used bad judgment. I agree with that. But this was submitted to the full Commission.

The full Commission considered this and I am quite sure we all thought he has used bad judgment, but they did not think he should be censured for it under the circumstances.

Mr. LISHMAN. At this point I would like to ask to have placed in the record a copy of this December 19, 1968, memorandum to the Commission from the general counsel's office, the personnel director and the managing director.

The CHAIRMAN. Without objection, the material will be put in the record.