reau of Finance that the Western Pacific had been a member of that association, that I had not been a direct employee of the Western Pacific, but I wanted to make sure that they knew that and they told me to take the case regardless.

Mr. LISHMAN. Who was the chief examiner that you discussed that with?

Mr. WILHITE. That was Mr. Lyle who is now deceased.

Mr. LISHMAN. Did he say that that did not create the appearance of a possible conflict of interest?

Mr. WILHITE. He said he did not think, or did not feel that it made any difference; no, sir.

Mr. LISHMAN. When you applied for employment with the Interstate Commerce Commission, you listed as your first reference Mr. James Cheseldine, the chief hearing examiner of the Commission. Is that correct?

Mr. WILHITE. He was No. 1 so far as hearing examiners: yes, sir. Mr. LISHMAN. What were the circumstances under which you knew Mr. Cheseldine? How long did you know him?

Mr. WILHITE. Well, I suppose it has been, oh, better than 20 years. I had had correspondence with him. I had talked to him on the phone. I had matters in which I asked for extension of time on pleadings, and things of that sort.

Mr. LISHMAN. Have you ever been assigned to any other case involving an organization with whom you were formerly associated? Mr. WILHITE. I had one other case for the Southern Pacific Co. which was a 15-mile trackage abandonment.

Mr. LISHMAN. Is it correct that from March 1965 until the fall of 1968 you were assigned 15 dockets in train-off matters involving a total of 30 trains?

Mr. WILHITE. That sounds about right.

Mr. LISHMAN. And is it correct, as the record shows, that discontinuance was granted in 12 of the 15 cases and continuance ordered in the other three?

I have here a list of these train-off cases which I will be glad to have you read and state whether or not it is correct.

Mr. WILHITE. That sounds right; yes, sir.

I think there was one which was a partial denial and partial continuance.

Mr. LISHMAN. What instructions or guidelines were furnished you by the Commission to assist you in handling these train-off hearing cases?

Mr. WILHITE. I am not certain just what you want, sir.

Mr. LISHMAN. Well, with respect to the burden of proof, did the Commission issue any instructions to you concerning who had the burden of proof?

Mr. WILHITE. No, sir.

Mr. LISHMAN. With respect to the quality of the proof, did anyone issue instructions to you that actual loss figures must be supplied where possible?

Mr. WILHITE. Well, no specific instructions. Before I had the first case, naturally I read back and current decisions on what the Commission expects and what they put in their reports, and I used those as guidelines, and I also consulted with other hearing examiners who had had cases before I did, many years before, and, using my judg

ment from some 36 years experience as a lawyer, I felt that I was fully qualified to conduct a hearing.

Mr. LISHMAN. When a train-off case is ordered to be investigated, and assigned to you, what steps do you take before starting out on the itinerary?

Mr. WILHITE. Well, when I am told that I am going to be assigned a case, even before I receive the order of the Commission assigning it to me, or giving the places and dates and so on, I immediately go to the file room to make sure that I get a copy of the railroad's notice and statement and attachments in that docket.

Sometimes they become scarce and no one should go out to hear one of those cases without thoroughly preparing himself in reading those documents and also making notes and footnoting for questions that were not clear, and things of that sort.

Mr. LISHMAN. Do these steps that you take include making an analysis of the financial data submitted by the railroad here?

Mr. WILHITE. No; it does not go that far. All I do, have done in the past, is make an extra check on some different items of income and expense which are not clear to me, and every railroad has different terms they use in their different statements.

Sometimes the term may be a new one and I make a check to make sure that at the hearing it is cleared up.

Mr. LISHMAN. Isn't it a fact that the Bureau of Accounts will analyze financial data for an examiner when requested?

Mr. WILHITE. Yes; they will.

Mr. LISHMAN. Have you ever requested the Bureau of Accounts for such analysis prior to going out on a hearing?

Mr. WILHITE. Not before going out on a hearing; no, sir.

Mr. LISHMAN. Have you requested such analysis after coming back from a hearing?

Mr. WILHITE. Well, yes, I have at times when I was when I felt I did not understand the explanations that were given and it is my understanding that most cases are checked by that bureau after the draft of the report has been submitted to the Commission.

Mr. LISHMAN. You are not an accountant, are you?

Mr. WILHITE. I had 3 years of accounting in college; yes, sir.

Mr. LISHMAN. Wouldn't it have been helpful in advance of a hearing to be alerted to points that might be raised by the Bureau of Accounts in giving you a financial analysis of the data relied upon and furnished by the railroads?

Mr. WILHITE. Well, it might be helpful in some cases. HoweverMr. LISHMAN. Wouldn't it alert you what to accept into evidence and what to reject, what to question and what you should require for complete and accurate statistics?

Mr. WILHITE. I would not call upon the accounting department to report on what evidence to receive or what evidence to reject; no, sir. Mr. LISHMAN. Aren't the figures submitted by the railroads average system costs?

Mr. WILHITE. On most items; yes.

Mr. LISHMAN. And you don't believe the Bureau of Accounts could give you any help with the problems involved in that type of evidence. Mr. WILHITE. The point is when you get to the hearing, the railroad files new exhibits many times which are alterations of the original exhibits, and they furnish additional exhibits to bring it up to date.

So if you are going to have them checked by the Bureau of Accounts, the best time is when you get back, and you have the benefit of the transcript and the questions and answers from the witnesses.

Mr. LISHMAN. Do you make it a practice as a hearing examiner to have the Bureau of Accounts make such analysis when you get back? Mr. WILHITE. I have in the past; yes. Not always.

Mr. LISHMAN. In how many cases of the 30?

Mr. WILHITE. Oh, possibly three or four.

Mr. LISHMAN. Is it common to discuss a train-off case with a Commissioners do send the examiner's draft to that department for checking or rechecking.

Mr. LISHMAN. On returning from an itinerary, have you ever been instructed by anyone on the staff of the Commission as to the result that should be reached there in a report?

Mr. WILHITE. Never.

Mr. LISHMAN. Is it common to discuss train-off cases with a Commissioner to whom it is assigned before you prepare a report ?

Mr. WILHITE. My experience has been with six or seven or more different Commissioners, and each one of them seems to have a different practice.

Some of them will send you a memorandum when they have received a brief on the case, which is usually 30 or 40 days after the hearing, indicating to you that the case is on their docket, and when you are sufficiently prepared that you call and make an appointment to discuss the matter.

Mr. LISHMAN. What consideration do you give in reaching your recommended decision to letters of protest received from the public in train-off cases?

Mr. WILHITE. Well, letters that are received and put in thewhat they call the correspondence file-according to law and according to rules and regulations are not evidence.

The only testimony that I have ever considered on my own is that that is under oath at a hearing plus statements by public officials such as Senators and Congressmen of the United States.

Mr. LISHMAN. Do you review all these letters of protest before going out on the itinerary?

Mr. WILHITE. I guess we do.

Mr.LISHMAN. You read them all?

Mr. WILHITE. I don't read them word for word, but I do read them for the purpose of trying to estimate just how much time a hearing will take at any one place.

Mr. LISHMAN. What do you consider your role to be as hearing examiner in a train-off case?

Mr. WILHITE. I consider it my duty to conduct the hearing in a proper manner, to see that all parties on all sides are given a full opportunity to present their views pro and con, and to keep the hearing in order.

Mr. LISHMAN. Mr. Wilhite, from December 1965 through October 1968, your vouchers reflect that travel was performed at no expense to the Government in nine out of a total of 11 vouchers submitted.

I have them here, and you may look at them if you would like to, and I would like to ask your comment as to why in nine out of these 11 vouchers the travel was performed at no expense to the Govern

ment.

Mr. WILHITE. I have not verified it but I will take your word for it. Mr. LISHMAN. I want to be accurate on this, Mr. Wilhite. We can take the time for you to verify it.

Mr. WILHITE. Is your question that all travel

Mr. LISHMAN. No; I said that nine out of the 11 show no payment of travel expenses by the Government.

Mr. WILHITE. You don't mean that is between all points involved? Mr. LISHMAN. On the vouchers. We will expedite this by showing you a marked copy, where there is a check opposite the ones where there is no expense reflected to the Government.

Mr. VAN DEERLIN. Mr. Chairman, for the information of the committee, could we know what the documents are the witness is examining?

Mr. MACDONALD. They are in the portfolio.

But for the record, could you clear it up without my going to the portfolio? I have been conversing on another matter. What are you questioning the witness about?

Mr. LISHMAN. This is on the charge of undue fraternizationMr. MACDONALD. Would you repeat that?

Mr. LISHMAN. This is with respect to charges made of this examiner that he unduly fraternized with the regulated industry.

Mr. MACDONALD. That is fair. Would you reply on the question, sir? Mr. WILHITE. On those occasions where there was no transportation expense to the Government, on those occasions, I was transported by automobile by different parties to the proceedings, including, principally, I would say, three-fourths of the time, by a court reporter, which incidentally, was at my expense, not the expense of the Gov

ernment.

There are other cases when I was in the company of a railroad official, and some other occasions when I was in the company of an attorney general of the State, and other times when I was with attorneys for the public service commission of the State, and other occasions when I was in company with railroad brotherhood union officials, and on all occasions such travel was with the knowledge and at the recommendation of all parties involved.

It was a matter of convenience.

Mr. LISHMAN. Mr. Wilhite, did you not accept transportation from Omaha, Nebr., to Newcastle, Wyo., with officials from the Burlington Railroad?

Mr. WILHITE. That is true.

Mr. LISHMAN. And from Newcastle to Sheridan, Wyo., and from Sheridan to Billings, Mont., with an attorney from the Wyoming Public Utilities Commission?

Mr. WILHITE. That is correct, sir.

Mr. LISHMAN. As well as accept a number of meals and/or drinks purchased for you by the parties involved?

Mr. WILHITE. I participated on occasion at dinners, and on most occasions, or practically all occasions there was some one present who represented protestants or one of the State commissions or the attorney general.

In fact in one instance, there was an aide to Senator Hansen of Wyoming. There were also occasions when I paid the dinner check for all parties, as many as 10 at a time, including a union brotherhood offi

cial and his wife. I can assure you that I came back from that trip in the hole financially.

Mr. LISHMAN. Was any other method of transportation available to you between the points I have just mentioned, sir?

Mr. WILHITE. The only other transportation would have been for me to rent an automobile.

Mr. LISHMAN. Well, before you made out an itinerary, didn't you make arrangements to have authority to rent an automobile?

Mr. WILHITE. I was authorized to rent a car, and intended to rent a car, even though I dread traveling hundreds of miles alone across that part of the country, but the first or the second day of the hearing, starting in Omaha, State officials, union officials, railroad officials called me aside at a recess and asked me to share rides with them all and not to burden me with driving a car in a strange country over hundreds of miles and late at night.

Mr. LISHMAN. With regard to this itinerary who made the reservations for accomodations along the route of the hearing?

Mr. WILHITE. They were made by some railroad official.

Mr. LISHMAN. Do you know a Mr. John C. Street?

Mr. WILHITE. Yes, sir; I do.

Mr. LISHMAN. Who is he?

Mr. WILHITE. He is one of the attorneys for the Burlington Railroad.

Mr. LISHMAN. Which was a party to the proceedings?

Mr. WILHITE. Yes, sir.

Mr. LISHMAN. Didn't you-didn't he in fact make the offer and actually make the reservations for your itinerary?

Mr. WILHITE. Yes; he did make that offer, and he said he was making reservations for everybody. There were several small towns involved, which made it difficult trying to get reservations from Washington, D.C.

Mr. LISHMAN. Did you pay for all your accommodations on this itinerary?

Mr. WILHITE. I did, sir.

Mr. LISHMAN. Were complaints against you made the subject of an investigation by the Commission?

Mr. WILHITE. The Interstate Commerce Commission; yes, sir.

Mr. LISHMAN. Were you requested to submit a detailed account of your activities while on this itinerary?

Mr. WILHITE. I got back on Saturday. On Monday, I was called into the office of the chief hearing examiner and he requested that I, to the best of my ability, give him my departures and arrivals at all points and the names of the parties that I ate with and the parties that I rode with.

I gave him that report.

Mr. LISHIMAN. I have a copy of that report here, Mr. Wilhite. I would like you to identify it and I request that it be included in the record.

Mr. MACDONALD. Without objection, so ordered, after it is identified. Do you identify this as correct, sir?

Mr. WILHITE. Yes, sir; this is a copy.

Mr. SPRINGER. Is that October 24, 1968, for the purposes of identification?