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Mr. GOODMAN. Yes. Each one of those letters 1 described, I have copies here.
Mr. PowERS. Did these letters that you have gone through constitute all the communications between yourself, the Department of Justice and the Commission concerning your employment or termination thereof and requests as to whether or not this constitutes in their opinion a conflict of interest, or other documents involved that were submitted back and forth?
Mr. GOODMAN. Well, obviously it's not all the communications because several of them were by telephone.
Mr. POWERS. Is this all the written communications?
Mr. POWERS. There are no other written communications concerning this?
Mr. GOODMAN. There are none.
Mr. POWERS. Do you have a time schedule on when you're going to submit your proposed budget to the Commission so that they can definitize the contract?
Mr. GOODMAN. Well, Mr. Powers, I have been with the Senator all of the 3 days on a full time basis. I have no such time schedule at this point, no.
Mr. POWERS. Is it anticipated that it will be submitted before the end of the month?
Mr. GOODMAN. That is a very difficult question, and I really don't know how to respond to it.
Mr. POWERS. Well, let me close, then, by saying the letter contract provides there'll be a definitive contract entered on or before April 1, that Mr. Allott will proceed with all due haste to supply everything so it can be done. This has now been extended by 30 days by order entered on March 30, by the contracting officer, which provides that the definitive contract has to be executed on or before May 1.
And so I assume you have to submit it on that time schedule, don't you?
Mr. GOODMAN. Well, frankly, it was not my understanding that we had to submit a time schedule which would show when we would produce portions of our study prior to the signing of a definitive contract.
Mr. Powers. But this provides for a definitive contract to be signed by May 1st?
Mr. GOODMAN. Well, you see the difficulty is this; we're talking really about a chicken and egg situation. We are expected to go out and hire people without having a definitive contract, and I frankly don't see how it can be done. And we really cannot even approach people to determine their availability without that definitive contract.
So how are we to plan on some division as between consultants and full time people without even having a definitive contract to work with? : Mr. Powers. I can have great sympathy with the problem, but if you can't tell what you're to do, and the Commission can't tell what you are to do, and you cannot move forward; how can the committee understand what is to be done here?
Mr. GOODMAN. Well, we think it is most important to have a certain amount of flexibility. Now, I am sure that this committee appreciates that not only is this proceeding most complex, but the type of participation that the Senator has been retained by the Commission to give is really a first time thing for the Commission.
It involves representation on a record of the public interest, the making and developing of a record. And this is not something that you can plan overnight. We have over 100 parties in this case already who have submitted materials which have to be evaluated by us, and then we have a staff to employ, and then we have just the matter of the issues to develop before we can proceed to advise the Commisssion where we are going.
So we need this flexibility in order to proceed.
Mr. POWERS. So, would you anticipate you have to do all of these things before you can enter a definitive contract?
Mr. GOODMAN. No, of course not. We want that definitive contract as soon as possible so we can go out and start hiring people to see who we can obtain on a full time basis, in order to avoid consultants. Consultants are quite expensive as this committee knows.
Mr. DINGELL. We've been discussing that today.
Mr. POWERS. Well, when do you anticipate that you will enter a definitive contract?
Mr. GOODMAN. Again, it is my hope that we can enter into a definitive contract as soon as possible, much before the first of the month.
Mr. POWERS. Do you anticipate, then, that you will enter the definitive contract without providing the schedule under which you will be performing the studies?
Mr. GOODMAN. That's right.
Mr. POWERS. So it is your anticipation that there will be no schedule on these studies in the definitive contract?
Mr. GOODMAN. This, of course, is a matter for the Commission to decide, but it is my hope that there would be no such schedule.
Mr. DINGELL. Well wait just a minute. It's not going to be a matter for the Commission to decide, because if Mr. Allott is going to be special counsel, and he's going to be an independent agent, who would be in effect directing the study as I read it.
Mr. GOODMAN. Mr. Chairman, my recommendation to the Senator would be-as well as to the Commission-not to tie the Senator down to some sort of schedule which would simply mean broken hopes in the future.
Mr. DINGELL. He's got a 2-year contract. Now, the committee's come to the conclusion sadly, that this is not a 2-year contract.
Mr. GOODMAN. It's a 2-year contract due to the sum of money involved; if we hire people on a full time basis for 2 years, the sum of money that we have got will hire approximately, or would bring into our employ, approximately 15 people including the Senator and myself.
Mr. DINGELL. This talks about the whole $650,000?
Mr. GOODMAN. If we could find, Mr. Chairman, if we could find the requisite talent that we needed, it would exclude the economic studies; if we cannot find these people, we've got to go that route.
You are talking about very-I really must emphasize this-you're talking about a very complex proceeding. You are talking about rate relationships that are national, that involve many different geographic areas, many different interests, conflicting interests, and to determine where the prejudices, the discriminations are in such a rate structure, which has not been one in the past, or to determine where the problems lie itself is a very large task.
Mr. DINGELL. I am curious to know whether this task is within the capabilities of the budget that the ICC proposes to afford you. I'm of the opinion that it's not.
Mr. GOODMAN. It's in the capabilities of a 2-year period. Now, what we can accomplish in 2 years, we have yet to see, but we don't know.
Mr. DINGELL. Part of your 2-year period would be in an adversary or semiadversary proceeding?
Mr. GOODMAN. Yes, it is.
Mr. DINGELL. Which is immensely time consuming, as you're well aware of.
Mr. GOODMAN. But let's understand this then, Mr. Chairman, it may not be necessary for special counsel to develop all of this evidence himself.
Mr. DINGELL. Who would develop it?
Mr. GOODMAN. At special counsel's request perhaps some of the parties could develop it, perhaps the railroads could develop it.
Mr. DINGELL. The ICC?
Mr. GOODMAN. Perhaps the ICC could develop it. But for the first time the Commission will have retained someone to coordinate all of this effort.
Mr. DINGELL. Isn't that something for which the ICC under the law has the responsibility? We never passed a statute setting up the Office of Special Counsel to the ICC. We have passed the Interstate Commerce Commission Act, which charges the ICC with this whole broad responsibility.
Mr. GOODMAN. Well, it is not entirely clear in the law that the ICC has the responsibility to develop the record. Of course, the ICC has the decisional responsibility.
Mr. DINGELL. Well, the courts have long held that they can't arrive at a decision and constitutionally carry out their function in the area of rates affecting the parties, without having a record made. You're aware of that.
Mr. GOODMAN. Mr. Chairman, I am aware of what the cases have held. Some cases have said in effect that the agency should get in there and develop a record when it has not been developed. Other cases have simply said that the agency has a decisional responsibility.
Mr. DINGELL. In an adversary proceeding?
Mr. GOODMAN. And it has no burden of proof in a proceeding. Now, if this is an adversary proceeding, there's no assurance that those adversaries will represent the public interest, that our record would develop on which a decision can be made by the agency in the public interest. This is the purpose of special counsel.
Mr. DINGELL. Well, I seem to be mixed up. I think this is a function of the ICC.
Mr. GOODMAN. It's a function of the ICC at minimum to make the decision after the record has been developed. It is the responsibility of special counsel to make that record.
Mr. DINGELL. The statute says the-I don't see where the statute says the ICC has to have a special counsel, or where they have to charge you with any particular responsibility. Maybe they've delegated that responsibility.
Mr. GOODMAN. There's something in the statute about the ICC doing its job.
Mr. DINGELL. Well, now, wait just a minute.
Now, I have been in this business a few years myself, and I am keenly aware of the fact that the ICC has imposed upon it the duty to serve the public interest, and to regulate the industry in the public interest; and that duty imposes on the ICC all duties that are necessary to accomplish that end.
Now, I don't have any problem with the philosophical concept of their hiring special counsel; I don't have any problem. I don't have any problem with the fact that they should pay a just compensation, I think the problem is they're paying him paying him the same as a cabinet official, and I don't have any objections to him having a staff,
But I do have objections to having them hiring a contractor who's going to tell them what to do, and I object greatly to Members of Congress being told that they are looking forward to a long study, that they don't know when it is going to terminate, and that they don't know how much they're going to pay or anything else.
But I recognize you can't see these things.
Mr. GOODMAN. Well, let's approach it from this standpoint. Let's assume the Commission had gone the route of doing this in-house. Let's assume they hired sufficient staff to accomplish the task.
The Commission would not have sat down and told that Commission staff how to proceed.
Mr. DINGELL. I agree. They should not have. But here they're signing a contract.
Mr. GOODMAN. Well, why should it differ now?
Mr. DINGELL. Because you're dealing with somebody who's not a Government employee. This is the taxpayer's money that you're spending
Mr. GOODMAN. But wasn't this part of the problem in selecting special counsel? Wasn't this part of the problem that has been solved with the current special counsel, that you have a man of integrity?
Mr. DINGELL. Well, let us reason together here. I've listened to that all afternoon, but I'm keenly aware of the fact that I as a Member of Congress have got to look after one of our errant children here, the ICC, which everybody agrees has not been doing the job.
And things are so bad with regard to ICC that many folks around here have introduced legislation to abolish it. Now, I think this is the only ICC that we've got now.
Mr. GOODMAN. Now, Mr. Chairman, I would like to, at that point, really, submit for the record an article I wrote in the Michigan Law Review, where I respectfully disagree with your estimate of what the Commission has accomplished.
I suggested in this review article that over the past decade, the Commission, particularly in the rates area, has accomplished much which has been overlooked.
Mr. DINGELL. Well, this is something in which honest men differ; I'm sure you understand that. But my problem is that as the proceedings commence, I intend to scrutinize them as they go forward. And I suspect you're going to be before one or more of my subcommittees from time to time as things go forward.
Mr. GOODMAN. I welcome your scrutiny.
Mr. DINGELL. But I want you to understand that the concern I have, and I'll be true with you—and my old daddy told me, "Son, trust everybody, but cut the cards,” and that's what I'm doing today, cutting the cards.
Mr. DINGELL. Well, Mr. Goodman, if you have some more additional submissions that you would like to make, we'd be more than pleased to have them and we thank you for your patience and for your testimony in the gracious way in which you spoke.
Mr. GOODMAN. Thank you. This article may be of some interest, and I would like to submit it.
Mr. DINGELL. We would be pleased to receive it, and if nobody else around here would like to read it, I think maybe I would.
Mr. GOODMAN. Thank you very much.
Mr. DINGELL. The committee will stand adjourned subject to the call of the Chair.
[Whereupon, the above-entitled hearing was adjourned at 5:13 p.m. April 14, 1973.)
1 The article has been retained in the committee files.