APPENDIX H INTERSTATE COMMERCE COMMISSION, Hon. HARLEY O. STAGGERS, Chairman, Special Subcommittee on Investigations, DEAR MR. CHAIRMAN: This is in further reply to the request for various information to be supplied for the record of hearings before your Subcommittee, June 18, 1970. I have attached information requested as to: (1) Professional background of our employees participating in the task force leading to the Report, Investigation of Intercity Rail Passenger Service, July 16, 1969. (2) Biographical outline of the professional background of each of our hearing examiners. (3) Outcome of the personnel investigation of one of our examiners, Wallace W. Wilhite, in F. D. 25230. No record vote was taken and no minute was recorded in this matter. However, the letter of Chairman Brown, dated January 10, 1969, in reply to Senator McGee's inquiry of October 17, 1968, reflected the unanimous view of the Commission. A copy of that letter is attached, and was previously submitted to you, as your acknowledgment also attached, indicates. The data attached, together with the study of actual savings experienced by the Frisco Railroad as a result of its passenger train discontinuances, sent July 9, 1970, should satisfy all requests made. I regret the length of time necessary to compile the information. Sincerely yours, GEORGE M. STAFFORD, Chairman. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Hon. VIRGINIA MAE BROWN, Chairman, Interstate Commerce Commission, DEAR CHAIRMAN BROWN: This will acknowledge your letter of January 10 and enclosure of copy of your letter of that date to Senator McGee in connection with certain allegations made regarding the conduct of your Hearing Examiner W. Wallace Wilhite in a recent train discontinuance proceeding involving the Burlington Railroad. I appreciate having this lengthy and thorough discussion of the Commission's examination into these allegations, and naturally am very pleased with your findings that there was absolutely no justification for them. Sincerely yours, HARLEY O. STAGGERS, Chairman. Hon. GALE MCGEE, Washington, D.C. DEAR SENATOR MCGEE: This is in further response to your letter of October 17, 1968, which referred to reports that, during the course of the hearings in the above proceeding, Hearing Examiner W. Wallace Wilhite travelled by automobile between hearing locations with railroad employees and was repeatedly entertained by them. You have inquired as to whether the Commission has rules or regulations covering such conduct and, if so, whether the governing regulations have been adhered to in all respects in the instant case. This Commission has issued standards of ethical conduct for its members and employees. Section 14(a) of the Commission's Canons of Conduct (49 C.F.R. 1000.735-14 (a)) prohibits the solicitation or acceptance, directly or indirectly, of "any gift, gratuity, entertainment, favor, loan, or any other thing of monetary value, which might reasonably be interpreted as being of such a nature that it could affect their impartiality, from any person ***" that has business relationships with, or conducts operations regulated by, the Commission. Excepted from this general prohibition are “obvious family or personal relationships when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors" and the "acceptance of food or refreshments of nominal value on infrequent occasions in the course of a luncheon, dinner, or other meeting Section 14 (b) further provides (49 C.F.R. 1000.735-14 (b)) that: "Members and employees shall avoid any action, whether or not specifically prohibited herein, which might result in or create the appearance of: *** (2) giving preferential treatment to any person; *** (4) losing complete independence or impartiality; * * * or (6) affecting adversely the confidence of the public in the integrity of the Commission." In determining whether there has been compliance with the canons the two essential questions which must be answered are whether the examiner's conduct did in fact result in a compromise of his independence and whether his conduct created the appearance of such compromise. We have made a thorough investigation of the entire matter and can assure you that there has been neither compromise in fact nor compromise in appearance. No other conclusions can be drawn by any fair-minded person acquainted with the facts. In our investigation, covering the examiner's conduct at the hearings and during off-duty hours, we obtained the views of numerous persons in a position to observe that conduct. These people include a number of the witnesses in the proceeding, counsel for the various parties, the court reporter, hotel and motel employees, a newspaper representative, an aide of a United States Senator, representatives of the attorneys general of three States, of State Commissions, of local communities, of labor groups, and others. The overwhelming reaction among the people is that the examiner provided a fair and impartial hearing and comported himself in such a way as to reflect credit upon himself and this Commission. Written responses to interrogatories were returned by 17 representatives. Of those, 13 were satisfied with the examiner's conduct, and 12 of those were laudatory. These observers include 12 protesting counsel-four representing States, two representing cities and a county, and six representing labor organizations. One was a Democratic nominee for Congress from Montana. Excerpts from their responses are appended hereto. As you well know, a fair appraisal of the impression an act will have upon the people should be made, not primarily by examining the act, but rather by examining the impression made upon first-hand observers. This is not to say that the examiner's conduct itself need not be kept under surveillance by this agency; we are greatly concerned about that conduct and demand that it comport with the canons. However, the allegation we are dealing with at the moment is that an unfavorable public impression has been created. If such an impression does in fact exist-and we have no indication that it does-it is the work of three or four observers whose views are wholly out of balance with the rest of the evidence. One of the dissatisfied participants in the litigation sees an indication of partiality on the part of the examiner in what is described as curtness toward the attorneys representing the protestants and the public. He expresses the view that the examiner caused certain confusion at Newcastle that resulted in witnesses leaving the hearing prematurely. As you can see from the appended remarks of the vast majority of counsel present at the hearings, most of them representing protestants and the public, neither of these allegations has any foundation in fact. Another dissatisfied representative blames the examiner because a number of witnesses left the hearing room without being heard. This attorney put on 22 witnesses and stipulated the testimony of four others. While he contends that he had others interested in testifying, he admits that he did not know whether they had made any appearance at all at the hearing. The formal record contains noth ing to indicate that the examiner was responsible for the departure of any unheard witnesses. Our investigation of those present makes it clear that if there was any misunderstanding on the part of the witnesses, it was not the fault of the examiner. At that hearing site, as at every other, the examiner publicly invited all present to testify; and no hearing was closed until all who wanted to be heard were in fact heard. At one hearing site, when the question arose as to whether a number of witnesses could be stipulated and it became evident that some people wanted to be heard individually, the examiner announced that he would keep the hearing open to hear everyone even if it took until midnight. The third dissatisfied attorney has taken the position that, regardless of the merits of the carrier's case, this problem of the public impression can be resolved only by ordering the continuance of the trains in question. He cites not a single fact to support this proposition. It is obvious that these few differ dramatically from the vast majority of the first-hand observers. We interpret the statements of the three as largely selfserving collateral efforts by advocates which do not reflect an objective appraisal of the facts. It is important to note that the record contains neither challenge of the qualification of the examiner nor any charge of impartiality. Such challenges as were made to the examiner's rulings on procedural matters have been determined in the Commission's report. On the question of whether there has been, in fact, any compromise of independence, we have made a searching analysis of the record and have thoroughly weighed every contention and allegation therein and in the pleadings, and we are firmly convinced that a fair, impartial and complete hearing was provided. The report of this Commission dealing with the train discontinuance matter on its merits makes findings and conclusions with regard to every material issue. A copy of that report, issued January 13, is attached. The only participation of the examiner in this matter was in the compilation of the record of the hearings. He did not participate further in any of the Commission's internal work necessary to reach a decision in this proceeding. He made no recommendations and gave no consultation. As to the conduct of the examiner, it cannot in reason and fairness be judged without advertance to the individual circumstances of this case. First of all, under the train discontinuance statute, a train being investigated may be discontinued by the carrier four months after its notice date, unless, before then, the Commission renders a decision. In effect, therefore, the Commission has four months in which to conduct the hearings, analyze the record, and arrive at a decision. In this instance, hearings had to be conducted at many places along a line nearly 900 miles in length. A tight hearing schedule had been set up. Automobile travel was the only feasible means of transportation which would permit the examiner to close the hearings in one locality and be ready to open hearings the next morning at the next hearing site, in one instance 190 miles away. Counsel for various parties, including representatives of States and labor groups as well as the railroad, voluntarily agreed to coordinate in providing transportation for the examiner and he did in fact travel with several of the parties. The examiner's offduty conduct also involved social contacts with the representatives of the various parties, and in most instances someone representing the interests of protestants was present. And as indicated above, almost everyone who was aware of these facts saw nothing in them that would impeach the integrity of the examiner or this Commission. This Commission is fully aware of the highly sensitive nature of train discontinuance cases and of the public's deep interest therein, and you may be sure that we shall continue, as we have, to admonish our corps of hearing examiners to avoid any action which might undermine the confidence of the public in the process of its government. Sincerely, Name: David H. Allard. VIRGINIA MAE BROWN, Chairman. RÉSUMÉ Date of Birth: 1/10/29. Higher Education: Duke University, LL.B., 1956; Whitman College, B.A., 1951. Employment Prior to ICC: 9/56 to 10/57, Budget Coordinator, $4,500 per annum, Boeing Airplane Company, Seattle, Washington. 51-728 71 pt, 28 9/54 to 6/56, Counterman (Dining Hall), for Board, Duke University, Durham, North Carolina. 2/51 to 2/53, Military Service, U.S. Army. Entered on Duty ICC: 1/20/58. Appointed Hearing Examiner: 10/22/67. Name: James Anton. Date of Birth: 3/22/14. Higher Education: University of Alabama, B.A., 1937; Georgetown Law School, LL.B., 1952. Employment Prior to ICC: 5/61 to 11/61, Private law practice, $1,000 per month, Washington, D.C. 1/56 to 5/61, Trial Attorney and Sup. Trial Atty., $11,610 to $15,030 per annum, CAB., Wash., D.C. 11/52 to 1/56, Special Counsel, $9,073 to $10,110 per annum, U.S. Senate, Armed Services Committee, Washington, D.C. 2/47 to 11/52, Clerk, $5,668 to $6,290 per annum, U.S. Senate, Washington, D.C. 12/45 to 2/47, Self employed. $3,800 per annum, Concord, New Hampshire. 11/42 to 12/45, U.S. Army. 5/42 to 8/42, Junior Registrar, $1,440 per annum, U.S.E.S., Claremont, New Hampshire. Entered on Duty ICC: 11/13/61. Appointed Hearing Examiner: Same Date. Name: Robert C. Bamford. Date of Birth: 3/4/20. Higher Education: Massachusetts Nautical School-Degree in Ocean Transportation, Navigation, and Seamanship, 3/37—3/39 Boston University Law School, LL. B., 1949. Employment Prior to ICC: 7/51 to 1/60, Attorney-Adviser and Trial Attorney, $3,825 to $10,130 per annum, Maritime Administration, Department of Commerce, New York, New York, New Orleans, La. and Washington, D.C. 9/49 to 7/51, Law Clerk, $2,000 to $2.700 per annum, Supreme Judicial Court, Commonwealth of Massachusetts, Boston, Mass. 3/42 to 3/46, Lieutenant, U.S. Navy. Entered on Duty ICC: 1/4/60. Appointed Hearing Examiner: Same Date. Name: Oren G. Barber. Date of Birth: 8/1/04. Higher Education: Northwestern University, B.S., 1929. George Washington University, J.D., 1943. Employment Prior to ICC: 6 years (no dates specified) Station Agent, no salary stated, Pennsylvania Railroad, Grand Rapids, Michigan. 11 years (no dates specified) Telegrapher, no salary stated, Postal Telegraph, Chicago, Illinois. Entered on Duty ICC: 8/7/39. Appointed Hearing Examiner : 6/11/47. Name: Louis E. Bartoo. Date of Birth: 9/18/13. Higher Education: National University Law School, LL.B., 1945. Employment Prior to ICC: 9/15/41 to 8/12/43, U.S. Army, (Sergeant). 1939 to 1940, Tariff Compiler-Clerical, no salary stated, Middle Atlantic States Motor Carrier Conference, Washington, D.C. Entered on Duty ICC: 8/16/40. Appointed Hearing Examiner: 2/22/59. Name: William J. Bateman. Date of Birth: 6/29/20. Higher Education: Ohio State University, A.B., 1943; Ohio State University, LL.B., 1946. Employment Prior to ICC: None. Appointed Hearing Examiner: 12/5/65. Name: J. Lee Benice. Date of Birth: 2/1/30. Higher Education: University of Buffalo, 3 years, 1950; University of Buffalo Law School, LL.B., 1953. Employment Prior to ICC: 11/55 to 3/60 *, Attorney, salary not stated, Self employed, Buffalo, New York. 12/55 to 4/59 *, Attorney. $4,200 to $5,400 per annum, Associates Discount Corporation, Buffalo, New York. 11/53 to 11/55, U.S. Army. Entered on Duty ICC: 3/15/60. Apopinted Hearing Examiner: 5/18/69. Name: Hyman J. Blond. Date of Birth: 12/25/11. Higher Education: George Washington University Junior College Jr. Certificate, 1936; George Washington University Law School, LL.B., 1940. Employment Prior to ICC: None. Entered on Duty ICC: 1/2/29. Appointed Hearing Examiner: 10/4/51. Name: Edward L. Boisseree. Date of Birth: 10/11/13. Higher Education: Creighton University, Ph.B., 1935; Creighton University School of Law, LL.B., 1937. Employment Prior to ICC: 2/42 to 1/46, U.S. Coast Guard Lieutenant. 1937 to 1942, Attorney Examiner & Director of Motor Transp., $2250 per annum, Nebraska State Railway Commission, Lincoln, Nebraska. Entered on Duty ICC: 1/3/46. Appointed Hearing Examiner: 6/11/47. Name: Robert N. Burchmore. Date of Birth: 8/19/12. Higher Education: Carleton College, B.A., 1933; Northwestern University Law School, J.D., 1936. Employment Prior to ICC: 9/36 to 6/62, Associate Attorney; Partner; $150.00 per month to $32.000 per year; formerly Walter, Burchmore & Belnap, now Burchmore, Good & Bobinette; Chicago, Illinois. 6/42 to 12/46, United States Naval Reserve, Lieutenant Commander. Entered on Duty ICC: 3/7/66. Appointed Hearing Examiner: Same date. Name: Thomas J. Callanan. Date of Birth: 6/10/12. Higher Education: Attended Crane Junior College, 1932 to 1939; Northwestern University, Loyola University; National University School of Law, Washington, D.C. Employment Prior to ICC: 5/53 to 9/62, Assistant to the Chairman, Member of the Neutral Rate Committee, Chairman, $12,000 to $16,000 per annum, Intercoastal Steam ship Freight Association, New York, New York. 9/30 to 9/41, Mail Clerk, Tariff Compiler Clerk, $1,000 to $1,848 per annum, Atchison, Topeka & Sante Fe Railroad Company, Chicago, Illinois. During the overlapping period shown Mr. Benice was practicing law in his spare time while on his job at Associates Discount Corporation. |