This report by the DOE IG says that Mr. Wellinghoff showed an excerpt from a video of a FERC Office of Enforcement (OE) interrogation... err...deposition of an "unnamed" electricity market trader to the audience at an industry conference in March.
The video was supposed to illustrate how not to behave in front of regulators. The IG says the video "was meant to demonstrate that the witness portrayed in the clip was being evasive and uncooperative, arguing over such things as the meaning of the words 'from' and 'to' in the context of email communications."
Except this video wasn't publicly available, until Mr. Wellinghoff shared it. Mr. Wellinghoff disagrees.
So, what's to be done about this? Shall we shut the barn door now that the horse has gotten out and crapped in the garden?
Apparently. The IG's report recommends:
- Determine if the former Chairman violated the Confidentiality of Investigations requirement and ascertain what, if any, sanctions are available to address the former Chairman's actions.
- Determine if the Commission currently has the necessary authorities it needs to prevent the disclosure or misuse of sensitive or nonpublic information; and, the authorities to impose sanctions on those who engage in such action, whether employed at FERC currently or in a postemployment status. If statutory or regulatory changes are needed in this regard, take appropriate action to expedite such changes.
- Expedite the current effort to update and strengthen the Commission's postemployment guidance and exit processes, including ensuring that departing Commission members and other employees are aware of what constitutes "nonpublic information" and their ethical duty to protect such information after they depart.
5 CFR § 2635.703
§2635.703 Use of nonpublic information.
(a) Prohibition. An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.
(b) Definition of nonpublic information. For purposes of this section, nonpublic information is information that the employee gains by reason of Federal employment and that he knows or reasonably should know has not been made available to the general public. It includes information that he knows or reasonably should know:
(1) Is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive order or regulation;
(2) Is designated as confidential by an agency; or
(3) Has not actually been disseminated to the general public and is not authorized to be made available to the public on request.
Example 5: An employee of the Army Corps of Engineers is actively involved in the activities of an organization whose goals relate to protection of the environment. The employee may not, other than as permitted by agency procedures, give the organization or a newspaper reporter nonpublic information about long-range plans to build a particular dam.
18 USC § 2071(b)
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
18 USC § 641
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted--
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
It simply can't happen again because Mr. Wellinghoff has lost his secret cache of FERC videos in a computer crash.
According to the memorandum, Mr. Wellinghoff stated that his computer "crashed" and all of his documents were permanently lost. A Commission attorney who participated in the March 20 telephone call told us that Mr. Wellinghoff had indicated his computer crashed in February 2015 and that all of his documents were lost. However, we were told that Mr. Wellinghoff used a personal computing device to show the video clip during the March 9 presentation, despite having told Commission attorneys that all of his documents were lost due to the computer crash. Thus, despite Mr. Wellinghoff's assertions about the loss of materials in February 2015, the events of March 2015 suggest that additional documents may remain on other personal computing devices. We were unable to reconcile this inconsistency. Despite multiple attempts on our part, Mr. Wellinghoff declined to speak with us regarding this matter.
What I want to know is did current Chairman and former OE Director Norman Bay give the video to Wellinghoff when the investigation that spawned it was active? Did this happen before Mr. Wellinghoff would have had to make a decision in the case (which never got that far because it settled)? Or was it shared afterwards, when Wellinghoff wouldn't have been influenced by it? How many hours of the video deposition do you suppose Wellinghoff watched to find that particularly entertaining scene? Or was the excerpt the only part he saw? Is that what passes for entertainment at FERC? Watching investigation targets squirm on video? I thought it was about protecting consumers?
Doesn't seem like Wellinghoff cares one bit. That hard-knock life stuff never happens to people like him.