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to be applied to salary and years of service might be increased for those who had
retirement ages of less than 60 years.
It was some time late in January or early
February, 1986 that I had a clear understanding of what the changes were likely
going to be in the retirement system rules.
It was during the same period of time
that I asked the Retirement Branch to give me information on what my retirement
benefits would be under some alternative cases such as; how long I would have to
work to be eligible to retire; what my benefits would be 1f I resigned with an
effective date after the proposed rules were in effect; and, etc. That information
1 was supplied to me and was used in my decision process about my future career.
The changes in the retirement system rules were approved by the TVA Board
in mid-February, 1986 with an effective date of April 1, 1986.
On March 13, 1986, I submitted my resignation letter to Mr. Willis.
letter offered my resignation with an effective date of April 4, 1986.
In his letter
to me dated March 18, 1986, Mr. Willis accepted my resignation as tendered.
Subscribed in my presence and sworn to before ne this 22 day of
OCTOBER 7, 1986 SUPPLEMENT TO THE
HERBERT S. SANGER, JR., ON
The TVA Board's initial refusal of my offer to resign and its sub
sequent request and actions forcing me to resign are connected by
many facts to its employment of Joseph C. Swidler (Swidler) at the
instance of Stone & Webster Engineering Corporation and Steven Afd
Swidler failed in his early attempt to get an agreement from the
Office of Government Ethics (OGE) that a Federal criminal conflict
of interest statute should be ignored because of the enormity of
the total shutdown status of TVA's nuclear plants.
He thus fail
ed to extricate the TVA Board from its even-then long-existing
defiance of OGE's condemnation of the Board's involvement in the
continuing violation of the Federal criminal conflict of interest statute or as the press attributes to Senators Sasser and Gore, "for acting indecisively in handling the conflict-of-interest issue surrounding the hiring of outside consultants". The Knox
ville News-Sentinel, October 5, 1986, p. l.
Indeed, Swidler exacerbated the TVA Board's defiance to such an
extent that OGE issued a letter concluding that Swidler's advice
was "adverse to that of the TVA Board" and had thereby deprived the TVA Board of access to me and members of my staff for legal.
The second and third reasons are contrivances on their faces.
highly respected Washington, D. C. law firm, McCarthy, Sweeney & Harkaway, P.C., has advised the Retirement Board that it has a
"duty" to reject Zigrossi's assertion of authority over the Retirement System. Ex. 3. Swidler's contrary opinion, Ex. 4,
is fully expected since it serves to support his August 18 spur
of-the-moment opinion that prior positions can always be "distin
quished" which he gave when confronted with his inconsistent prior
it also follows through on his previous bad judgment in
advising the TVA Board that I could be placed on leave because I
exercised my discretion as a Retirement System Board member in a
way that did not meet the wishes of the TVA Board.
The law is
clear that regardless of who appoints a director of a retirement board, the director is not subject to the will of the one who
made the appointment.
Swidler was just wrong in advising the Board otherwise.
right 38 years ago when, as a director of the Retirement System
and TVA's General Counsel, he advised TVA and took the position
with the General Accounting Office (GAO), that is the opposite
of that which he states in his September 24, 1986 opinion.
opinion incidentally was a replacement of his earlier opinion
issued the same day which he and TVA leaked to the press and
which was reported nationally.
(Their distribution of the earlier
opinion constituted one of their violations of the Federal Privacy Act in the effort to castigate me for Retirement System matters to cover up their reaction to the criminal conflict of interest advice
I gave them in acting as TVA's General Counsel and Designated
Agency Ethics Official.)
The Swidler memorandum, corrected to eliminate a further pri
vacy Act violation, is remarkable for--among other things--its failure to discuss or even quote the two documents most relevant to the nature of the TVA/Retirement System relationship--i.e., TVA Board Chairman Clapp's December 7, 1948 letter to the Comp
troller General an
Swidler's August 5, 1949 letter to the same
officer. As pointed out in the McCarthy, Sweeney & Harkaway, P. C., memorandum, these two letters represent contemporaneous construc
tions of the Retirement System Rules and Regulations by those in
volved in their original promulgation and as such are to all intents and purposes dispositive on the points they cover. Swidler's careful avoidance of them is especially remarkable since both of
them are Swidler's own products.
The Clapp letter was prepared
for him in what was then TVA's Division of Law headed by Swidler
as General Counsel, and Swidler himself approved it; it is thus as
much his letter as Clapp's.
The August 5, 1949 letter Swidler
of course signed as Chairman of the Retirement System Board.
by GAO to audit the Retirement System in 1948 on the basis that
it "involved the extension of authority by an outside agency,
not the rights, duties and responsibilities of TVA itself."
fact, the December 7, 1948 letter expressly equated GAO's and TVA's
own authority as regards the System, saying:
If TVA should now say that the Retirement funds consti-
The Swidler memorandum attempts a further "distinction"
by saying that the GAO was attempting "not merely to investigate
the Retirement System, but to assert control over its day-to
day transactions", while "TVA is not asserting the right to exer