DELEGATION OF AUTHORITY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00793R000100410003-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 15, 2016
• Document Release Date: November 17, 2003
• Sequence Number: 3
• Publication Date: January 9, 1973
• Content Type: MF

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7 3 ?'''
9 January 1973
MEMORANDUM FOR: Executive Officer to the Deputy Director
for Support
SUBJECT: Delegation of Authority
1. In 1971 at the request of the Deputy Director for Support,
Mr. Brooks undertook a lengthy and difficult project to research
the authorities delegated by the Director of Central Intelligence to
individuals within the Agency.. Mr. ? Brooks was to report on the
current status of these delegations and recommend corrective
action where required. In late 1971 Mr. Brooks sent us a rough
draft of his report for our comments. Because of his death and
the issues involved, we took it upon ourselves to try and finish this
report.
2. This Office has devoted many hours of research and
writing to the preparation of the attached memoranda. The first,
a memorandum for the record, contains a study of the authorities
delegated to the Director by Congress in legislation which specifi-
cally deals with the Agency and in legislation which generally
empowers all heads of Government agencies with certain adminis-
trative and managerial authority. The second memorandum sets
out the Director's 1 December 1950 (as amended on 18 January 1954)
delegation of administrative authorities to the Deputy Director for
Support (DDS)' and to the directors of certain offices subordinate to
the DDS. This memorandum shows that our current headquarters
regulations do not contain many of the 1950 delegations. Attached
as an annex to the second memorandum is a compilation of the
authorities of the Director which have not been delegated by him in
specific headquarters regulations. Some of these authorities, how-
ever, have been delegated by means of separate memoranda, but they
have not been incorporated into the appropriate regulation(s).
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3. The question these papers ask is how and where does
the Agency establish a chain of authority from the Director down
to those who are actually exercising authority in his behalf. If
the 1950 delegation is rescinded, the chain of authority will be
broken. We feel that the 1950 delegations should be included in
our headquarters regulations, but as the second memorandum and
annex indicate, our regulations are not clear in and of themselves.
As an interim solution, the Director might delegate an updated ver-
sion of the authorities in the 1950 memorandum directly to the DDS;
giving him the authority to redelegate and making the Director's
STATINTL delegation a part of th series. It would seem proper, how-
ever, that some consideration be given to a possible restructuring
or reorganization of certain of our regulations.
4. As you are aware, our headquarters regulations are
the guidelines by which the Agency operates and is managed. We
have statements of no less than. the United States Supreme Court
to the effect that regulations properly promulgated have the effect
of law, and that regulations prescribing procedures to be followed
are binding upon the administrators who issue them.* While we
feel work needs to be done on updating and revising our regula-
tions, this requires a policy decision as to whether it will be done
and, if so, how it will be done and who will do it.
5. As you can see this is an enormously complicated
matter. We would be happy to discuss it with you in greater detail
and assist in any way possible.
Atts
AEG:ks
Distribution:
Or igina,-
1 -
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JOHN S. WARNER
Deputy General Counsel
Addressee
DELEGATION OF AUTHORITY
AEG Signer
Chrono
*Service v. Dulles, 354 U.S. 363 (1957); United States ex rel.
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OGC 72-1532
18 October 1972
MEMORANDUM FOR THE RECORD
SUBJECT: The Authorities of the Director of Central Intelligence
1. This paper contains a study of the authorities delegated
to the Director of Central Intelligence (DCI) by Congress. These
authorities are found in legislation which specifically deals with
the Central Intelligence Agency (CIA) and in legislation which
generally empowers all heads of Government agencies with certain
administrative and managerial authority. This paper discusses
court decisions and principles of administrative law concerning the
delegation and subdelegation of authority and then enumerates the
authority delegated to the DCI in specific and general legislation.
I.
2. The best known and probably the most highly regarded
treatise on Administrative Law in the United States is by Professor
Kenneth C. Davis. This paper borrows liberally from this treatise
in sketching out the present state of the law on delegation of
authority.
3. Professor Davis begins the chapter on "Delegation of
Power" by stating that, "Congress may and does lawfully delegate
legislative power to administrative agencies." 1 Davis, Adminis-
trative Law ? 2. 01 at 75 (1958). Davis and other authorities in
this field point to the language of a 1940 United States Supreme
Court case as reflecting the present state of the law. The language
used by the Court in that 1940 case was, "Delegation by Congress
has long been recognized as necessary in order that the exertion of
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legislative power does not become a futility." Sunshine Anthracite
Coal Company v. Adkins, 310 U.S. 381, 398 (1940). Although there
were a few United States Supreme Court cases during the 1930's
wherein congressional delegations to public authorities were held
invalid, the nondelegation doctrine has never carried much weight
in federal law. Since 1940, federal courts have upheld congressional
delegations of authority based upon the vaguest statutory statements
of standards and have even gone so far as to uphold delegations
which did not contain any legislative standards. On a few occasions,
the United States Supreme Court has even released federal agencies
from the standards provided in the statutes. Professor Davis
suggests that Congress in its enabling legislation sometimes merely
tells a federal agency to do what is in public interest, which is the
practical equivalent of saying to it, "Here is the problem. Deal with
it." 1 Davis at 82.
4. An examination of the three major pieces of legislation
which specifically empower the Director shows that Congress has not
chosen to fetter the work of the CIA by imposing strict statutory
standards upon it. The three legislative enactments are: The National
Security Act of 1947, as amended, 50 U.S. C.A. 402(a), 403, 405; the
Central Intelligence Agency Act of 1949, as amended, 50 U. S. C. A.
403a-c, e-h and j; and the Central Intelligence Agency Retirement Act
of 1964 for Certain Employees, as amended, 50 U.S. C. A, 403 Note.
These laws delegate to the Director broad authority to accomplish the
duties assigned to the Agency without in all cases either explicitly stating
these duties or providing a statutory statement of standards to guide
the Director in formulating policies and issuing implementing regula-
tions. Nevertheless, these are valid delegations. As Davis demon-
strates, Congress is not required to legislate as far as it reasonably
can and delegations are valid without either standards or "intelligible
principles." 1 Davis at 88. The United States Supreme Court once
justified just such a delegation by saying, "Congress legislated on the
subject as far as was reasonably practicable." Butterfield v. Stran.a-
han, 192 U.S. 470, 496 (1940).
5. The National Security Act of 1947, as amended, estab-
lishes the National Security Council and, under it, the Central
Intelligence Agency with a Director of Central Intelligence as its
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head. One of the most important specific authorities given the
Director by this Act is the authority to, in his discretion, ter-
minate the employment of any Agency employee whenever "he shall
deem such termination necessary or advisable in the interests of
the United States..." 50 U.S. C.A. 403(c).* A determination of
the "interests of the United States" is left to the Director. The
Director also acquires certain authorities by virtue of his position
as head of an agency. These authorities are enumerated later in
this paper.
6. The National Security Act of 1947, as amended, also
provides for the position of a Deputy Director of Central Intelligence,
who is authorized to act for and exercise the power of the Director
in his absence or disability. 50 U. S. C. A. 403(a). This legislative
grant of authority has been interpreted by the Comptroller General
of the United States to mean that the Deputy Director may also assist
the Director in the performance of his duties, including those vested
by law in the Director. 41 Comp. Gen. 429. Therefore, it appears
from this that any authority the Director exercises may upon a valid
delegation from the Director be exercised by the Deputy Director even
when the Director is not absent or disabled.
7. There must be some balance here, however. The Director
cannot appear to have simply abrogated all his duties. This Office has
taken the position that the Director should not delegate to the Deputy
Director at least: (1) the authority under the National Security Act of
1947 to terminate employees of the CIA when the DCI shall deem such
termination necessary or advisable in the interests of the United
States; and, (2) the authority under the Atomic Weapons Rewards Act
of 1955 for the DCI to serve on the Atomic Awards Board, empowered
to render awards for information concerning certain activities regarding
atomic energy. (There has been no use of this authority since its
*Some duties of the Agency are enumerated at Section 102(d)
of the Act. This Act also makes the DCI responsible for protecting
intelligence sources and methods from unauthorized disclosure. See
15 OGC 199 (1962).
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enactment.) Memo for DDCI ft General Counsel, Su.bj: Delegations
of Authority to Executive Director-Comptroller, OGC 64-3036, dtd
10 July 1964.
8. The language of the National Security Act spells out
some of the duties of the Agency in broad terms. The language
implies that whatever additional standards may be imposed upon
the Agency will be imposed by the National Security Council and
that whatever regulations the Agency will operate under will be
prescribed by the Director. For example, the Act states that
the Agency shall perform "services of common concern" for the
benefit of the intelligence community and "other functions and
duties... affecting the national security as the National Security
Council may from time to time direct." 50 U.S. C.A. 403(d)(4)
and (5). Under this broad mandate, the Agency has been assigned
duties and tasks by the National Security Council and has provided
for their implementation by internal Agency regulations, authenti-
cated by the DCI or the "executive of the Agency" (the Deputy
Director for Support), without the sanction or approval of Congress.
9. The next piece of legislation, and perhaps the most
important in terms of enumerating the specific authorities the
Director may exercise, is the Central Intelligence Agency Act of
1949, as amended. By the language of this Act the Agency is
authorized to exercise the authorities contained in section 2(c)(1),
(2), (3), (4), (5), (6), (10), (12), (15), (17) and sections 3, 4, 5, 6,
and 10 of the Armed Services Procurement Act of 1947, 62 Stat. 21,
P. L. 80-413, February 19, 1947. The authority of the Agency is
limited to the language of the sections as they read in 1947. Sub-
sequent amendments to these sections are not applicable to the
Agency. The Procurement Act of 1947 allows the "agency head" to
negotiate purchases and contracts for supplies and services, with-
out advertising, under certain specified conditions. Other sections
stipulate procedures with respect to advertising for bids, types of
contracts which may be negotiated, advance payments under nego-
tiated contracts, liquidated damages, procurement for other agencies,
joint procurement and the delegation of procurement responsibilities
by the agency head. "Agency head" is defined in the CIA Act to mean
the Director, the Deputy Director, or the Executive of the Agency
(the Deputy Director for Support), and the CIA Act emphasizes the
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authority of the "agency head" to delegate his powers under the
Procurement Act. The CIA Act, however, specifically provides
that the power of the "agency head" to make the determinations
specified in section 2(c)(12) and (15) and section 5(a) shall not be
delegable.** Therefore, only the Director, Deputy Director and
Deputy Director for Support can make these decisions.
10. Similar authority, with the exception of procurement
for other agencies and joint procurement, is provided for other
Government agencies by the Federal Property and Administrative
Services Act of 1949, as amended. Procurement authority avail-
able to the CIA includes this Act and all subsequent amendments
to it.
11. Congress, in the CIA Act of 1949, as amended, also
empowered the Director with unique authority in the matter of pay-
ing travel, allowances and related expenses of Agency employees
assigned to duty stations outside the continental United States. For
reasons not pertinent to the discussion here, the Director, utilizing
the authority of sections 8(a)(2) and 8(b) of the CIA Act of 1949, as
*'',12(c) All purchases and contracts for supplies and services
shall be made by advertising? .. except that such purchases and con-
tracts may be negotiated by the agency head without advertising if
*
(12) for supplies or services as to which the agency
head determines that the character, ingredients, or com-
ponents thereof are such that the purchase or contract should
not be publicly disclosed;
(15) for supplies or services as to which the agency
head determines that the bid prices after advertising thereof
are not reasonable or have not been independently arrived at
in open competition. Provided, that.... (certain stipulations
and conditions be met)
5(a) The agency head may make advance payments under nego-
tiated contracts heretofore or hereafter executed in any amount not
exceeding the contract price upon such terms as the parties shall
agree: Provided, that.... (certain stipulations and conditions be met)
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amended, approved the principle that the Agency may adopt the
administrative authorities (except salary) of the Foreign Service
Act, as amended, or of any other laws when it is determined by
the Executive Director-Comptroller to be necessary for the proper
administration of all employees of the Agency. Memo dtd 23 Aug
67 for DCI fr OGC and OLC, Subject: Legislative and Adminis-
trative Authority for Payment of Travel Expenses, Allowances, and
Other Fringe Benefits to Agency Employees (OLC 67-0175). The
basic principle involved in this adoption is to insure that travel
expenses (and other benefits) provided to Agency employees are as
favorable as those enacted for other Government employees in similar
circumstances. Memo dtd 10 Oct 67 for DDS fr Executive Director-
Comptroller, same subject as above (OGC 67-1935). Therefore,
Agency foreign travel regulations are substantially similar to the
Department of State Foreign Service Travel Regulations. The
Director has subdelegated his authority to pay travel, allowances,
and related expenses. The authority to approve certain unusual ex-
penses, however, has been vested in the Deputy Directors and in
the Heads of the Independent Offices and not further subdelegated.
12. In the payment of travel allowances and related expenses
of Agency employees routinely assigned to duty stations within the
continental United States, the Agency derives its benefits from the
laws and regulations which apply to all other executive departments
and follows these regulations, absent an unusual operational need.
These regulations, issued by the Office of Management and Budget
(OMB), include the Standardized Government Travel Regulations
(A-7 /revised/ ), and the Regulations governing payment of travel
and transportation expenses of civilian officers and employees of
the United States (A-56 rrev1sed-7). With slight modifications,
these OMB regulations are part of Agency headquarters regulations.
13. The next subheading of the CIA Act of 1949, as amended,
is titled "General Authorities." The actions the Agency may take
in the performance of its functions are enumerated here. The
Director is mentioned as being the specific individual who authorizes
couriers and guards to carry firearms when transporting materials
affecting national defense and security, who authorizes rentals of
and alterations to rented premises without regard to the limitations
on such expenditures set by other legislation, who protects intelli-
gence sources and methods from unauthorized disclosure, and who
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(in conjunction with the Attorney General and the Commissioner
of Immigration) determines that the entry of a particular alien
into the United States for permanent residence is in the interest
of national security.
14. The final subpart of the 1949 Act, "Appropriations, It
specifically requires that the Director establish policies for the
transportation of employees and dependents in Government-owned
vehicles under certain circumstances (detailed in the Act), and for
the attendance of employees at Agency expense at professional
meetings. Agency funds may also be spent for supplies, equip-
ment, and personnel and contractual services otherwise authorized
by law and regulations, when approved by the Director. Finally,
Agency funds may be expended without regard to the provisions of
law and regulations relating to the expenditure of Government
funds, when such expenditures are for objects of a confidential,
extraordinary, or emergency nature. These expenditures are
accounted for solely on the certificate of the Director.
15. The authority to account for the expenditure of funds
as well as the authority to approve the entry of certain aliens into
the U.S. for permanent residence was first delegated by the
Director to the Deputy Director in about 1962.
Icontains the most recent and much broader delegation
of authority to the DDCI. This regulation, dated 1 November 1966,
reads as follows:
I hereby delegate to the Deputy Director of
Central Intelligence all authorities vested in me by
law or by virtue of my position as Director of
Central Intelligence and head of the Central Intelli-
gence Agency, including, but not limited to, the
certification authority set forth in section 8(b) of the
Central Intelligence Agency Act of 1949, as amended,
except for any authorities the delegation of which is in-
consistent with applicable law.
All other delegations of authority currently in
force remain valid to the extent they are not incon-
sistent with this delegation.
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16. This delegation continues in force regardless of
changes in the position of the Director and/or Deputy Director.***
Despite this delegation of authority, Agency headquarters regula-
tions continue to state that the Director is the certifying
authorit and the approving authority to effect entry
into the United States for certain aliens Since
headquarters regulations are the guideli es oy winchhe Agency
operates and is managed, it would seem appropriate that specific
regulations indicate the person or persons to whom authority has
been delegated.
17. It might be worth-while reiterating at this point that
the Agency is exempted from a number of laws applicable to other
Government agencies, such as the Classification Act. In the case
of terminations under section 102(c) of the National Security Act of
1947, the Director is not subject to the Veterans' Preference Act.
While subject in normal circumstances to such acts as the Federal
Property and Administrative Services Act and the Government
Employees' Training Act, both of these acts provide for exemptions
to meet Agency needs. Agency employees are also entitled to the
benefits of the Federal Employees' Compensation Act and the
Federal Employees' Government Life Insurance Act. With both
programs, however, the Agency has worked out special arrange-
ments to protect security. The Federal Employees' Health Bene-
fits Act permits the Agency, among others, to conduct its own
program. Finally, all reporting requirements on information per-
taining to the Agency are lifted by section 6 of the CIA Act of 1949,
as amended. 13 OGC 203 (1960).
18. The DCI's authorities under the Agency's Retirement Act
of 1964 for Certain Employees are clearly set forth in the Act, as
amended, which can be found in the statutes at large and as a note to
50 U.S. C.A. 403. The OGC-produced Guide to CIA Statutes and Law
(unclassified) also contains the Act, as amended, and with annotations.
implements this Act.
***This Office has suggested that delegations of authority in
effect on the date a new Director takes office continue in force even
in the absence of a new directive which says they do. 18 OGC 138
(1965).
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19. There are also other laws which affect the authority of
the DCI in his role as head of the Agency. These laws are not
unique to the CIA but empower all heads of government agencies
with certain administrative and managerial authority. A close
reading of the provisions of these laws shows an overlap between
many of them and specific provisions of Agency legislation. The
remainder of this paper discusses some of the most important of
these laws and the authorities granted to agency heads.
20. Much but not all of the same authority the Agency
exercises in the field of procurement can be found in the Federal
Property and Administrative Services Act of 1949, as amended. 4"::4
In passing this Act, Congress declared that its policy was to create
a:
... system for (a) procurement and supply of
personal property and non-personal services...
such as contracting, inspection, storage, issue,
specifications, property identification and
classification, transportation and traffic manage-
ment, establishment of pools of systems for
transportation of Government personnel and
property by motor vehicle within specific areas,
management of public utility services, repair-
ing and converting, establishment of inventory
levels, establishment of forms and procedures,
and representation before Federal and State
****Federal Property and Administrative Services Act of
1949, as amended.
Title 40, section(s) 471-75 (General Provisions), 481 (Procure-
ment, warehousing, etc.), 483 (Property utilization), 484-92 (Disposal
of surplus property and motor vehicle pools and transportation), 512
and 514 (Method for disposal of foreign excess property), 521-24 (Recon-
struction Finance Corporation Property), 531-35 (Urban land utilization),
751-59 (General Services Administration).
Title 41, section(s) 5 (Public contracts, advertisements and
purchases), 251-55 (Procurement), 257-60 (Administrative determina-
tions, delegations).
Title 44, chapters 21 (Archival administration), 25 (National
History Publications Commission), 27 (Federal Records Council), 29
(Records management by Administrator, GSA), 31 (Records manage-
ment by Federal agencies).
andPTAcTiMegP?MWWWANIEntkg.
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regulatory boards; (b) the utilization of available
property; (c) the disposal of surplus property; and
(d) records management. 40 U.S.C.A. 471.
Elsewhere in its general provisions, the Act states that, "Nothing
in this Act shall impair or affect any authority of--... (17) the
Central Intelligence Agency? . . . " 40 U. S. C. A. 474.
21. For most of the Act, as amended, Congress has pro-
vided that the Administrator of the General Services Administration
(GSA) will prescribe the policies and methods of procurement and
supply or will procure and supply (for example, personal property
and non-personal services--40 U. S. C.A. 481(a)) or will prescribe
regulations under which certain work may be done (for example,
the installation, repair, and replacement of sidewalks around build-
ings--40 U. S.C. A. 490(i)). The Act also provides for the Adminis-
trator to delegate and to authorize successive redelegation of any
authority transferred to or vested in him by the Act (with certain
restrictions) to the head of any other Government agency or to desig-
nate and authorize any executive agency to perform such function(s)
for itself. 40 U.S. C.A. 486(d) and (e)(2).
22. Another part of this Act, as amended, is found at
Title 41, Chapter 4, "Procurement Procedures." The provisions
of this chapter are applicable to purchases and contracts made by
GSA or "any other executive agency in conformity with authority
to apply such provisions delegated by the Administrator in his dis-
cretion." 41 U.S. C. A. 252(a). The agency head is authorized to
redelegate the powers delegated to him by the Administrator, GSA
except as provided at 41 U. S. C. A. 257(b). 41 U. S. C. A. 257(a).
23. A third part of this 1949 Act which is of importance to
the CIA is found at Title 44, Chapter 31. This chapter provides
that the head of each federal agency "shall establish and maintain a
records management program and 'make and preserve' records of
his organization in order to 'protect the legal and financial rights of
the Government and of persons directly affected by the agency's
activities' . " 44 U. S. C . A. 3101 and 3102.
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24. With the probable exception of the provisions found
at Title 44, Chapter 31, the DCI can, in most cases, only
exercise the authority found in the Federal Property and Adminis-
trative Services Act, as amended, when the Administrator, GSA
has redelegated his authority either to all heads of agencies or
specifically to the Director of Central Intelligence.
25. The Administrative Expenses Act of 1946 was bench-
mark legislation for it relieved heads of Government departments
and agencies of the ordinary and routine day-to-day problems
associated with the management of personnel under them. This
Act represented the first attempt to provide a Government-wide
method of dealing with, for example, the expenses of travel of
employees, the transportation of dependents, the shipment of an
employee's personal and household effects, and the payment of
expenses for persons appointed for duty in overseas areas. This
Act also permitted the head of a department or agency to delegate
to his subordinates the authority to take final action on matters
pertaining to the payment of the above mentioned expenses which
fall under matters pertaining to the employment, direction and
general administration of personnel. The Act also allowed the
delegation to subordinates of the authority to publish certain
advertisements, notices or proposals in regard to employment or
contracts with the department or agency.
26. Subsequent amendments to the original Act broadened
the law by increasing the number and type of expenses paid on a
Government-wide scale and making final action on these expenses
likewise delegable. The Eighty-First Congress provided for the
payment of expenses associated with the evacuation of civilian
employees and/or their families from posts of duty in foreign
countries for military or other reasons, and also provided for the
protection of the Government in cases where it paid the expenses
of certain civilian employees to posts of duty abroad. Congress
also authorized departments and agencies to pay a mileage allow-
ance to civilian employees to cover the cost of transporting house
trailers from one official duty station to another in the continental
United States.
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27. The Eighty-Sixth Congress passed two key amendments
to the Administrative Expenses Act. The first broadened the
coverage of the existing law relating to the payment of travel and
transportation costs of certain new civilian employees and made
permanent a program for the payment of travel and moving ex-
penses of certain prospective employees (scientists and engineers)
for whom the Civil Service Commission determined that there was
a manpower shortage and that their skills were critical to the
national security effort. The second amendment, called the Over-
seas Differential and Allowances Act, established a uniform
system of allowances for federal employees in overseas posts,
regardless of the agency for which they worked. This legislation,
which amended the Foreign Service Act and the CIA Act, extended
the benefits then authorized only for foreign affairs agencies to the
government in general and established a limited number of new
benefits for all. Finally, this legislation established a "special
transfer allowance" for extraordinary, necessary and reasonable
expenses not otherwise compensated for. Congress later authorized
the departments and agencies to pay travel and transportation ex-
penses to student trainees when assigned to positions for which the
Civil Service Commission had determined that there was a manpower
shortage.
28. The last really major addition to the Act occurred when
the Eighty-Ninth Congress provided for the reimbursement of federal
employees for certain moving and storage expenses incurred when
transferred from one official duty station to another in the interest
of the United States (within the United States).
29. The language of the Administrative Expenses Act which
allows the department or agency head to delegate routine personnel
administration to his subordinates is now found at 5 U.S. C.A. 302
and reads as follows:
In addition to authority to delegate conferred by
other law, the head of an agency may delegate to
subordinate officials the authority vested in him.
(1)
by law to take final action on matters per-
taining to the employment, direction and
general administration of personnel under his
agency
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(2) by (440 U.S. C. A. 324) to authorize
publication of advertisements, notices
or proposals. 5 U.S.C.A. 302.
30. Congress has also passed other legislation which
grants heads of agencies additional authorites to assist them in
their administrative and managerial duties. Most of these laws,
like much of the Administrative Expenses Act of 1946, have been
codified at Title 5. The following discussion touches on some
of the more important of the sections of Title 5.
31. An individual appointed to an office of honor or profit
in the civil service is required to take an oath of office.
5 U.S. C.A. 331. This oath, which is incident to entrance into
the executive branch, may be administered by an employee of an
executive agency designated in writing by the 'head of the agency
to administer this or any other oath required by law in connection
with this employment. 5 U.S. C.A. 2903(b). All persons accepting
employment with the United States Government must file an affidavit
stating that his or her employment will not violate 5 U. S. C.A. 7311,
which deals with loyalty to the United States Government and with
strikes against the Government.
32. Each agency is authorized to employ whatever number
of employees of the various classes recognized by chapter 51 of
Title 5 as Congress may appropriate for each year. Chapter 51
covers the classification of positions within an agency and although
the CIA has been specifically excluded from the Classification Act,
the CIA has indicated to the Civil Service Commission that it intended
to adhere to this system in substantially the same manner as provided
for other agencies. Letter from DCI to Chairman, Civil Service
Commission, dated 10 August 1949.
33. There are a number of restrictions on the types of
persons the head of an agency may employ. For example, a head
of an agency may not employ an attorney to conduct litigation in
which the United States or the agency is a party (5 U.S. C.A. 3106),
nor may an agency head use appropriated funds to pay the salary
of a publicity expert (unless the funds are approved for that purpose)
(5 U.S. C. A. 3107), nor may an agency head employ individuals
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employed by detective agencies (5 U. S.C. A. 3108). The head
of an agency is permitted to employ without pay a reading assist-
ant for a blind employee or to hire and pay clerical assistance
for a blind employee. 5 U.S. C.A. 3102(b) and (c). In addition,
only the head of the agency concerned may restore to duty an
employee suspended or removed in the interest of national security.
5 U. S. C. A. 3571 and 7532.
34. Congress has also provided that the head of each
agency "shall establish, operate and maintain" a program or pro-
grams for the training of employees by, in and through Govern-
ment or non-Government facilities. 5 U.S. C.A. 4103. The
President has excluded the CIA from certain of the provisions of
the Government Employees Training Act, codified at 5 U.S. C.A.
1308 and 4101,4118. Executive Order 10805, February 18, 1959.
The Training Act repealed section 4 of the CIA Act of 1949, which
authorized a CIA training program. The provisions of the Training
Act from which the CIA has been excluded are those which require
the CIA to follow the regulations prescribed by the Civil Service
Commission, those which impose limits upon the nature or type of
training, and those which require an agency to submit reports of
its training program(s).
35. Heads of agencies may also establish incentive awards
programs, including the payment of cash awards to employees.
Each agency head may pay a cash award not to exceed $5, 000 to
an employee for an extraordinary act or service or for an invention,
suggestion or accomplishment which results in the improvement of
Government operations. Awards may also be made to former employ-
ees whose act or service was made or performed while in the employ
of the Government. 5 U.S. C.A. 4502-03 and 4505.
36. Chapter 53 of Title 5 covers pay rates and pay systems.
The salaries of the Director and Deputy Director of Central Intelli-
gence are provided for at sections 5313 and 5314, respectively.
The CIA need not adhere to the pay rates set forth in the general
schedule (5 U.S.C. A. 5331-38) since this schedule applies only to
those employees covered by chapter 51 (classification of positions)
and the CIA has been specifically excluded from the provisions of the
Classification Act. Here again, however, the CIA has usually
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adhered to the pay rates set forth in the general schedule for its
staff employees.
37. One of the lengthiest chapters in Title 5 is Chapter 55,
dealing with the administration of employees' pay. Subchapters
here cover such administrative problems as withholding pay,
advancements, allotments and assignments of pay, dual pay and
dual employment, premium pay, payment for accumulated and
accrued leave, payments to missing employees, settlement of
accounts and severance and back pay. There appears to be no
specific exclusion from these provisions for the CIA. In several
places, however, such as at section 5504(c), the law states that
the Civil Service Commission may prescribe regulations necessary
for the administration of the subchapter. Generally, the CIA is
not required to adhere to the Commission's regulations where they
would interfere with or impose undue burdens upon the peculiar
operational needs of the Agency.
38. Although the provisions of the Federal Employees' Pay
Act of 1945, as amended, apply to all federal employees except
those specifically listed in the legislation as exempted, Civil
Service Commission regulations have exempted the CIA from the
application of the Commission's regulations pertaining to overtime.
Federal Personnel Manual, Supp. 990-1, Book III, Sec. 550.101(b)(7).
Moreover, under section 8 of the CIA Act of 1949, as amended, the
Director of Central Intelligence has the independent authority to pay
for personal services without regard to any other law.*****
39. A few additional sections in Chapter 55 are also note-
worthy. These sections call for the head of an agency either to make
determinations concerning the indebtedness of or an overpayment to
an employee or to prescribe regulations to carry out a particular
section or sections of Chapter 55. Examples of these authorities
can be found at sections 5514 (installment deduction for indebtedness
because of erroneous payment), 5522-27 (advances, allotments and
assignment of pay), 5543 (compensation time off), 5545 (night, Sunday,
standby, irregular and hazardous duty differential), and 5563-67 (pay-
ments to missing employees).
*Contra, Opinion of the Office of General Counsel, CIA, dtd
Jan. 6, 1955 'by Mr. Feehan; See, Byrnes v. United States, 330 F. 2c1 986
(163 Ct. Cl. 167) (1963).
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40. The twelve chapters of Title 5 which follow Chapter 55
are concerned with employees' attendance, leave, suitability,
conduct, insurance and retirement. Sprinkled through these chapters
are numerous references to the authorities of an agency head to
establish, develop, or support programs which provide services to
or protection for employees. Examples of programs which come
within these authorities are the health services and safety programs
(sections 7901-02), the Workmen's Compensation Plan, the Civil
Service Retirement Program, and the various health insurance
programs.
41. The last law to be discussed in this paper concerns the
authority of the head of an agency to settle certain employees'
claims. In 1964, Congress extended to the heads of other agencies
the authority then possessed by the heads of the military departments
to settle employees' claims for loss of or damage to personal property
when the loss or damage is incident to Government service. This
legislation, the Military Personnel and Civilian Employees' Claims
Act of 1964, as amended, has been codified at 31 U.S. C.A. 240-243.
(This Act repealed 10 U.S. C. A. 2732 and 14 U. S. C. A. 490 and
amended 10 U.S. C.A. 2735.) Under section 241(b)(1), subject to
such policies as the President may prescribe and such regulations
as the head of an agency may prescribe, the agency head or his
designee may settle and pay a claim for not more than S6,500 for
loss of or damage to property incident to an employee's Government
service. The employee's property may also be replaced in kind. STATINTL
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