Following the engineering disaster at TVA's Kingston Station in December 2008, Joe Carson, PE, a nuclear safety engineer and prevailing whistleblower in Department of Energy, began a study of how the "broken covenant" of the Civil Service Reform Act (CSRA) of 1978 contributed to that billion-dollar disaster and other dysfunction and/or corruption in TVA.
The results of his several years-long efforts?
In summary, he contends the TVA CEO and Board are now willfully failing or refusing to comply with their sworn duty, by 5 U.S.C. section 2301(c)(2), to "take any action....necessary" to ensure they know and comply with their duty to ensure rank and file TVA employees can do their sworn duties to advance and protect the public health, safety, and welfare, per the "merit system principles," because they are adequately protected from reprisal and other types of prohibited personnel practices (PPPs).
The TVA Board seems intimidated by the TVA General Counsel Ralph Rodgers, who claims TVA is exempt from the CSRA, specifically chapter 23 of Title 5 of the U.S. Code, "Merit System Prinipcles." This is despite the clear wording of the law, other case law and contrary determinations of the U.S. Merit Systems Protection Board (MSPB) in a 1989 "special study" of TVA. TVA General Counsel Ralph Rodgers "doubled down" on this claim recently. A Yale Law School graduate, Loring Justice, has independently analyzed the law, the case law, and the legislatitive history and notified the TVA Board Chairman, Bill Sansom, that he finds Mr. Rodger's claims incorrect.
What to do?
The TVA Board should stop letting Mr. Rodgers unconditionally speak for it and should ensure, by rule of law, that it is complying with its sworn duty to "take any action...neccessary" to ensure TVA employees are adequately protected from PPPs. To do so, it should request the Office of Legal Counsel of the Department of Justice resolve the issue.
The stakes are high, because Mr. Rodgers has put TVA in a vulnerable position. If the Office of Legal Counsel determines that Mr. Rodger's position is wrong, then TVA has been in the wrong for 34 years, in significant ways impacting public health and safety. This could be an important, perhaps decisive, factor in the ongoing litigation about the Kingston disaster. It would almost certainly result in Mr. Rodgers being fired for cause and perhaps being subject to disciplinary action by the Tennessee State Bar.
Regardless, the law is clear, the TVA CEO and Board, not Mr. Rodgers, have the sworn duty to "take any action...necessary" to determine what their duty is by 5 U.S.C. section 2301(c)(2) and then to comply with it.
- TVA General Counsel Ralph Rodgers' letter to Joe Carson of November 5, 2010
- TVA General Counsel Ralph Rodgers' letter to Joe Carson of May 22, 2012
- Attorney Loring Justice's letter to TVA Board Chairman Bill Sansom of July 31, 2012
- TVA General Counsel Ralph Rodgers' letter to Loring Justice of August 6, 2012 that does not disagree, in substance, with Mr. Justice's analysis - instead, it basically blows him off.
- video of Mr. Carson's public comments to the TVA Board on August 16, 2012 (Mr. Carson's comments are 3 minutes long and begin at 1:44:45 of the "listening session" video).
Mr. Carson can be contacted at [email protected]