TRANSCRIPT OF PROCEEDINGS COMMITTEE ON THE POST OFFICE AND CIVIL SERVICE SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE HEARING ON S. 1035 AND H.R. 17760

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79-00632A000100070001-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 43
• Document Creation Date: December 15, 2016
• Document Release Date: November 26, 2001
• Sequence Number: 1
• Publication Date: June 18, 1968
• Content Type: TRANS

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muse of ~Aepresentx#iaes
Transcript of Proceedings
COMMITTEE ON THE POST OFFICE AND CIVIL SERVICE
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE
Hearing on S. 1035 and H.R. 17760
Washington, D.C.
ACE - FEDERAL REPORTERS, INC.
Official Reporters
415 Second Street, N.E.
Washington, D. C. 20002
Telephone:
(Code 202) 547-6222
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O N T E N T S
IS I
Zia
Z*
STATEMENT OF:
Mr. Carl W. Clewlow,
Deputy Assistant Secretary of Defense
for 4ivilian Personnel Policy, Office
of Secretary of Defense;
aaccc anied by:
!Mr. Frank Bartimo, Assistant General
Counsel for ? Manpower, Office of
~Becretary of Defense.
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HEARING ON BILLS S. 1035 AND H:.R. 17760
Tuesday, June 18, 1968
House of Representatives ,
Come ittee on Post Office and
Civil Service,
Subcommittee on Manpower and
Civil Service,
Washington, D.C.
S
40 The Subconmdi.ttee reconvened at 10:10 o'clock a.m., in
11 Room B-?374, Rayburn Building, the Honorable David N. Henderson
12 presiding.
13 , Presents Representatives David N. Henderson (presiding),
Lee B. Hamilton, H. R. Gross,, and James T. Broyhill.
Mr. Henderson. The Subcommittee will come to order.
We began our public hearings relating to the protection
of rights and the invasion of privacy of civilian employees by
considering S. 1035 and S.R. 17760. Witnesses last weak were
Chairman Macy, Commissioner Andolsek and Commissioner Hampton
of the Civil Service Commission.
Today we will hear from officials in the Department of
Defense, the largest employer in the Federal Government with
about one-half of the Federal employment in the Government. We
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Agency the impact of B.R. 17760 and S. 1035 on that Agency.
Session to discuss with officials of the National Security
will be most interested today to learn of the impact of the
proposed legislation on manpower management operations in the
military departments.
We will complete the morning by holding an Executive
This session must be closed for the obvious reason of national
a security.
our first witness this morning will be Mr. Carl Clewlomr,
Deputy Assistant Secretary of Defense for Civilian Personnel.
Policy, accompanied by Mr. Frank A. Bartimo, Assistant General
Counsel for Manpower,, Office of the Secretary of Defense.
Gentlemen, we will be glad to you have, if you will take
13 1
94 your seats at the witness stand; and if you have anyone accom-
panying you that you would like to have sit with you, we
would be delighted to have them.
17 1 sae you have a prepared statement. You may proceed,
22
air.
STATEMENT OF MR. CARL W, CLBWIlN r DEPUTY ASSXSTMT SBC1W.-
TARP OF DEFENSE FOR CIVILIAN PERSOMNEL POLICY, OFFICE
OF SECRETARY OF DEFENSE; ACCOMPANIED BY MR. FRANK
BARTIMO, ASSISTANT RAL COUNSEL FOR MhNPOWER, OFFICE:
OF SECRETARY OF DEFUNSE.
We Clewlow, ,. Thank you very much, Mr. Chairman.
I haver as you mentioned, with as Mr. Prank Sartimo,
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9 fI Assistant General Counsel for Manpower for the Department of
I welcome the opportunity to appear before this Committee
to present for your oonsideration the views of the Department
Assistant Secretary of Defense, Manpower and Reserve Affairs
Defense.
For purposes of the record, I am Carl W. Clewlow, Deputy
II of Defense an 0, 1035 and H.R. 17760.
The Department's interest in these bills is based on their
impact on personnel administration and on the national
f94 v.4 'I 0--v*4 P4.&
se cur ! activities of the Departmen 'Ave th
e
Commission Chairman stated the adverse effect S. 1035 would ha
ci personnel administration, I shall address the major portion
D
art ev`.!.
Af u remark to m tters of s
ed al co cer" ' t
th
ep
p
o
e
11
our position, the Department opposes the enactment of 9. 10 35 .
This morning I would like to direct my remarks to four
basic areas:
(1) The Department's reasons why S. 1035. should not be
enacted in its present form.
(2) The Department's opposition to S. .1035 because of its
discriminatory provisions against military personnel performing
supervisory responsibilities.
(3) The additional sensitive activities of the Departs ant
which should be included in the esmnptions extended. to the
Federal Su2sau of Investigation, the Central intelligence age
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91
and the National Security Agency.
(4) The Department's initial reaction to H.R. 17760 is
favorable, but we would appreciate the opportunity to study it
closely. In fact, in anticipation of such a request, the
interested DOD components have been requested to submit com-
ments to the Department as soon as possible. We could have
specific comments to you within a few days thereafter.
With regard to the Defense Department's position on S. 103
in the 90th Congress, the Department filed a report with the
Senate Subcommittee on Constitutional Rights in which it con-
curred in the opposition report of the Civil Service Commission
In addition, it noted that the bill did not take into account
national security considerations and that it applied unfairly
to military supervisors. To assist the Committee, I offer for
insertion in the record at this time a copy of the Department's
report of June 5, 1967 to the Senate Subcommittee.
While the bill, as passed by the Senate, meets certain
of the Department's objections, it continues to contain a num-
ber of provisions which would hamper the proper execution of
executive responsibilities. In order to be as brief as possibL
I will summarize the principal objections of the Department:
(1) The bills fail to distinguish between eligibility
for government employment in general, and the special responsi-
bilities of a national security nature entrusted to the Depart-
anent. The business of inhibiting espionage by careful selectman
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of persons to be given access to sensitive information is
extremely difficult at best. Without adequate information
concerning the background, affiliations, personal relationships
mores, and financial and general integrity of persons con-
sidered for such access, it may well be impossible. It is
essential that, as the sensitivity of a position increases,
14 and the Moral Bureau of Investigation is based on a recogniti n
17 of the sensitivity of their missions, and for the same reasons ti
7 the Department must be permitted to broaden the scope of its
inquiries.
(2) The bill fails to provide the Secretary of Defense
ge with authority to exempt from its provisions certain sensitive
11 activities of the Department, despite the fact that those
18 activities involve access to classified defense information of
is equal or greater import to national security than positions in
14 the agencies cited in section 6. The exemption authority gran
26 to the Central Intelligence Agency, National Security Agency
..f.
ar ~n+ of ffsfenae when the
A be extended to the De
~%
p
It
(3) The provisions permitting civil actions to be filed
in the U cited States District Court without claiming damages
' administrative remedies are Disru
or a v%nn&+in
tive p'er' }he
p
g
It
I
Z relationships, To permit disregard of the jurisdictional pre-
25 ? requisites to judicial review would most certainly encourage
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the filing of spurious suits and open the door to broad and
possibly organised harassment of executive actions.
(4) The provision authorizing the Board on Bnployees'
Rights to reprimand, suspend or remove civilian violators is
in derogation of the responsibilities of the employing agency
and of the Civil Service Commission.
(5) The effectiveness of the employee organization system
of representation established by B, 0. 10988 would be seriotely
disrupted. Under section 4, an employee organization could
join in a court suit at the employee's request, even though
the organization does not represent the employees of that
Defense activity. Under section 5, an employee organization
could intervene in proceedings before the Board on Employees'
Rights if "in any degree [it is] concerned with employment. of
the category in which any alleged violation of this act
occurred." In this instance, it could intervene without regard
to the wishes of the complaining employee.
To assist the Committse, I would like to identify a few,
examples of the types of operational problems the Department
would face should S. 1035 be enacted in its present form.
The Department receives information that an employee
has attended secret Coist party meetings and that
"outside parties or organisations" are instructing him on
how to spbotags government facilities. Under section 1(b)
an investigator's questions in these areas would be
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unlawful. They constitute ?notice" of his attendance
at a non-government meting on a subject other than the
performance, cif his assigned official duties.
The Personnel Office receives information that an
employee is heavily in debt and that his failure to pay
his just and honorable debts reflects an the Federal
service. Under section 1(c) it cannot require the indi..
Vidual to make a report, since his indebtedness does no+ll,
relate to his assigned official duties. it would also
to be barred under section 1(i) since most employees, with
certain limited exceptions, may not be asked about their
financial liabilities
.
i9 The Security Office receives information that an
employee has come into unexpected wealth and that there
is reason to believe that the employee may have received
money from a foreign embassy. The employee is assigned
to ti 1 iv ns i tive duties involvlm:er information of
24
considerable valets to foreign intrellligence. Under section
1(i) the exployee may not be required, or even requested,
to disclose the amount of or sources of his income,
property or 'other assets.
In addition, i offer the Departuent`s report on S. 1035
of June 3.8, D613 _- the report includes a ten-page sectional
analysis # and proposed auu' ndetory language.
The OepartweAt ' concurs in the concept that, if S. 1035 is
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enacted, it should apply to military officers who supervise
civilians in the same measure that it applies to civilian
supervisors. But under the terms of the bill, civilian super-
visors would not be subject to criminal charges, whereas the
Board on Employees' Rights could direct military authorities
to institute court martial action against a military supervisor
In our view, this distinction in treatment is patently dis-
criminatory, if not constitutionally questionable.
Actually, an employee is not without remedy if he has
cause to believe that his military superior is committing a
wrong constituting a crime under the uniform Code of Military
Justice. Under paragraph 29 of the Manual for Courts Martial
1951, any person having knowledge of the offense may present
a violation of the act to duly constituted military authorities
certain sensitive activities of the Defense Department
should be exempted, As noted in zr earlier remarks, we believe
that the *am type of exemptions should be extended to the
other agencies of the Department concerned with intelligence
and national security matters as are extended to the FBI, CIA
and USA. yor example, the Department has a number of positions
requiring access to nuclear weapons and nuclear weapons system
chemical and biological warfare data, and operational war
plow. In addition, it has a nu*ber of intelligence elements
which deal with intelligence sources which arm as sensitive
its those in the CIAs. FBI and NSA. Obviously, CIA, NSA 'and r :
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information must be disseminated to selected personnel throug]-
out the Department of Defense. Consequently, any added
measure of personnel security by these agencies is wasted unLas
it is matched within the Defense Department. We are concerned
that the Secretary of Defense be in a position to assure con-
7 a like policy to all elements of the Department of Defense
a siatenoy of Defense policy in this overall area and to apply
t
o esnsuxe t
e
nee
ighest standards of
5
$ integrity for those who man such posts .
Service Commission --- and it provides statutory protection to
Federal employees without prejudicing the proper performance
of Government operations. As to its specific provisions, the
enumerated 'employee rights" are cast in general terms, and in
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the Act where it belongs, in the employing agency and the Civil
engaged in similar activities.
it is mph understanding that the Committee will receive
testimony from National Security Agency representatives in
Executive Session later today. At that time, classified activi
ties will be discussed and a section-by-section analysis will
be made. Consequently, I will not elaborate further on the
critical nature of certain Departmental operations or on the
d t
h
h
trustworthiness and I
Let us turn now to the De fense Department s position on
H.R. 1776 0 . Haire the Department considers it preferable to
S. 1035. It presents a set of balanced standards of rights and
obligations -- it vests responsibility for administration of
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ingredient of the Federal Government's employment policies that its employees do not surrender their rights to respect fr
their employer. But 8. 1035 has not fully considered the
Government's interest and has created a system- of --resediss
which axe cumbersome, contrary to well accepted tenets of
Government administration, and in some, instances p icial to
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"employee rights" is one pertaining to the political activities
of Federal employees. This fundamental right would seem to
deserve inclusion in the bill. We are pleased to learn from
reading the testimony that efforts will be made to take up
the legislation recommended by the Commission on Political
activities of Government Personnel.
in conclusion, as. the biggest single employer within the
Executive Branch, the Department is mindful of its responsi-
bilities to insure a proper balance between individual rights
and management objectives. The basic objective of 8. 1035 is
laudable -- that respect for human dignity must be an- essential
this respect may need clarification in order to provide meaning
ful standards for both employer and employee. For example,
the bill declares that an employee has "the right to be pro-
tected against any unwarranted invasion of personal privacy."
it also enjoins supervisors to respect en loyea rights "can-
sistent with law and with the responsibilities of employment
in the public servi oe . "
A provision that is not included among the enumerated
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4 the Department's mission.
in closing, may I express appreciation to the Chairman for
a his efforts to bring forth a bill that will give proper balance
a and recognition to the rights and responsibilities of both
s management and its employees,
a Mr. Henderson. Thank you, Mr. Clewlow.
7 Without objection, the Department.of Defense report dated
e June 17, 1968, and the other material referred to, will be
9 included in the record at this point, immediately following the
9e Secretary's testimony.
(THE MATERIAL FOLLOWS : )
21
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to
1Z
Inc. Henderson. Mr. Secretary, with regard to the Defense
activities that you have recommended be excluded from the
legislation as are CIA and NSA and FBI8would you care to
enumerate those by agencies, departments or activities? Or is
it your recommendation that the Secretary of Defense be given.
the authority to exclude,, if he finds the national security is
involved?
Mr. Clewloa. I believe this would be a proper responsi-
bility of the Secretary to do that. I would prefer `to leave
it in that sense, sir.
Mr. Henderson. Could we gather from your testimony, where
you mentioned that matters involving the national security
doming to the Department of Defense from CIA or NSA and FBI
must be disseminated to selected personnel, that the Secretary
probably would exempt even certain personnel or officers udi r
that authority rather than to exempt an entire section or an
agency within the Department?
Mt. Clewlow. It was our thought that it would be on a
selected basis, depending upon the needs at the time, believing
that because the security provisions which govern the other
agencies do in fact protect this information, that the Secre.tar;
of Defense would want to have both the authority and the
responsibility to offer an equal protection.
Mr. Henderson. With regard to your state t concerning
the employee rights pertaining to political activities, do you
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statement in connection with the recommendations of the Com-
mission on Political Activities of Government Personnel?
Mr. Clewlow. Our thought is basically that a governing
11e
mean by this that the bill should specifically state that the
Hatch Act provisions would be effective? Or do you make this
F 11 this might give an opportunity to review that and determine the
extent to which it may need to be recast or restated.
Mr. Henderson. well, in the absence of the Subcommittee!
9
U
11
if
1
II
11
If
legislation or not.
Mr. Clewlow. This is correct.
tests are used in the Department of Defense?
Mr. Clswlow. I would like to ask our Assistant General
Counsel to address-himself to that remark, if x may.
Mr. Bartimo. Mr. Chairman, as you know, in a sensitive
agency, for exataple, the National Security Agency, psychologic
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testing is used. It is not used to that degree in other seg-
ments of Defense. In the very extreme, sensitive type operati
for example, DIA, it may be used.
But I should enphasise where it is used, it is only used
as an aid for an overall judgment. A specific finding is newer
muds on a purely psychological test. It is merely an aid tc)
the psychologists or the psychiatrists who are trying to make
a judgment about the suitability of that individual getting
access to extremely sensitive Defense informatipn.
Mr. Henderson. Is it a part of a medical exam that is
required in all instances?
Mr. Bartimo. If I may answer that specifically, it is not
in all instances. It is not in all instances. It is used with
great discretion* It is only used where, in the judgment of
the person responsible for the protection of that highly
sensitive compartmented type information, it is a necessary
vehicle, a necessary aid to make an overall judgment.
Mr. Rendsrsaa. To what extent is the polygraph used in
the Department of Defense?
)Ir. Bartim o. Again, Inc. Chairman , the polygraph is used
with v ty, very close discretion, except in an agency like
the National Security Agency, again for the very reasons that
I have given referring to the psychological tests. The poly-
graph is not used as a magic tool or a magic box. It is used
=der very stringent, carefully controlled criteria.
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an overall judgment. Never is a judgment made on a polygraph
test in and of itself.
Mr. Henderson. Now, to be sure the record is clear and
in my own mind, are you saying that both the psychological
tests and the polygraph are only used in those areas where
national security is involved?
And only -- and I want to emphasize "only". -- as an aid to
I would be glad to spell those out if the Committee desire
Mr. Bartimo. Only the most sensitive aspects of national
to security.
II Mr. Henderson. I believe, Per. Secretary, that it would
12 be helpful if you could explain a little more in detail to what
13 extent the present policy is requiring financial disclosures,
both of military and civilian personnel in the Department of
Defense.
Mr. Clawlow. I will ask Mr. aartimo to take this.
Mr. Bartiseo. As you knew, Mr. Chairman, the Department
of Defense has had in effect a Department of Defense regulation
that deals w4 4-1h the ass-cal leA co fl-i ct e %f interest
fader the
.
terms of that directive only certain personnel --- those politi-
cal appointees,, those high 'grade civilian personnel -- mustr
under this tarns of this directive, fill out a personal financia
statement. This statement in effect requires them to list
stoaka and bonds and other securities, but only for the purpose
to determine whether that person might possibly have a conflict
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of interest in the securities that he owns in relation to the
duties and responsibilities he fulfills for the United States
Govemnent.
As you know, the Civil Service Commission has also issued
an overall Civil Service regulation which covers this same
field.
if you desire a specific figure as to the number of per-
sonnel that must submit these statements, I shall be glad to
submit it for the record. I don't have the figures with me.
Mr. Henderson. I think it would be helpful if you would
do that inasmuch as Mr, Macy gave those figures in his testimony
at the last session.
Mr. Gross. Mr. Chairmen, at that point,, would you yieldl
Mr. Henderson. Yet, sir.
Mr. Gross. When the Comptroller General, then Mr. Campbell
testified eider oath before the McClellan Committee in the Sena
with respect to the P-ill contract - taking another angle of
this disclosure business -+ he testified before the Senate
Committee that even when his team from the Comptroller's office
went to McNamara to ascertain the figures and the information
upon which he based the award of the control to General Dynamic
in port worth, Texas, the Secretary of Defense told his team the comptroller General's team -- that he was carrying the
figures in his bead= and they were unable to get the figures.
They were unable to get the background information.
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Now, how do you handle a situation of this kind, from
the standpoint of disclosure?
Mr. Bartimo. Mr. Gross, I an terribly sorry. I am not
too sure I, catch your question. Could you spell it out a littl.
more clearly for me? I will attempt to answer if I can.
Mr. Gross. Well, how do you got the information from the
Secretary of Defense when he is carrying it around in his head
and refuses to disclose it?
Mr. Bartimo. Mr. Gross # my remarks,, of course, were
addressed to the Chairman's question out conflict of interest: ! --
Mr. Gross. How would we know if it was a conflict of
12, if interest if we oouldn't get the information to determine if
there was a conflict of interest?
Mr. Bartimo. May I say, air, you are in an area in which
I am not an expert, nor am I ' familiar with the facts.
28 Mr. Gross. Well, at page 6 of your statement you say:
17 The Security Office receives information that an employee has
~ww 4v%4-n +~..as~r.+aa. +sA .o I44 mw kA 4.) 4. 462%-was 4- A.w
19 11 that the employee may have received money from a foreign embasa~
:m Well, what about a procurement officer who may be suspects
Mr. Henderson. I was going to ask, if the gentleman wool
yield, if you would t ae at an officer the same as an employee?
Is your word "employee" here broad enough to cover all officerej
imo lading procurement officers?
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of er source of income, property or other assets,, and this
would prevent you from doing that, or inhibit you from making
18 that investigation?
Mr. Clewlow. The way we interpret that Section 1(i) v we
tB may not require or request the employee to disclose the amount
9 the appropriate action, which might include a criminal prose-
10 cution.
ti Mr. Henderson. Are you saying that Section 1(i) of S. 1013
flict of interest,, you can be assured that we would institute
Mr. Bartimo. Yes,, sir, it does. It would be broad enough
If I may comment on the latter part, Mr. Gross, take the
2 hypothetical question you posed, that should a procurement
14 officer suddenly come into a great deal of wealth, and this
5 matter comes to our attention, there is no question at all that
we would immediately, under those circumstances, institute a
thorough investigation, and if we find any indication of con-
17 would mean. under S. 1035 --Mr. Bartimo may want to comment
is more on that.
is Mr. Henderson. what about the language "tending to indi--
oate a conflict of interest . . . to which be is or may be
ti assigned"?
Mr. Bartimo. I want to bade up and reiterate my response
to Mr. dross' a question. What I have said is the way, we would
react,, and this undoubtedly would come to my office if it
cam to that level. ' nd I can assure you,, as a personal matter
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I that I would react precisely the way I have stated.
2 Now addressing myself to your phase of the question, we,
3 are concerned -.. and I am not certain that it was Intended that
4 the language cons out the way it did -- but if we had a case
5 of an individual who, if I may use a hypothetical case, who
6 suddenly came into a great deal of money and it was not related
to the task that he was performing for the Federal Government,
e under this language --- and other lawyers other than nVself have
construed it this way -- they conclude that we would be pro--
10 hibited from questioning that individual. And the example that
It the Secretary gave here, of the individual who might have
92 gotten -- this isa far more dramatic exaaple', I believe -- m igh
1s have gotten it from a foreign er assy= and yet, because that,
141 individual was not charged with a similarity in function, t ua.t
8S is, his job did not relate to the type of activity he was en:
. 16 gaged in outside of his job, we could not question him.
17 And this, of course, we think is a very serious deficier.cy,
le and I dcai't think it takes much imagination -- or even to rei i
sons of the serious espionage cases we have hod in this eour:txy --
to indicate {'-'hat this would he a very serious i
n
2 It fulfilling the responsibilities that the Secretary has.
of the bill then? You feel that where a clear conflict of
4v%4-m.+vb d4- mvkj4% "n erw.e7A'1. . d11..,.a...-..i...i t--- att.
Mr. Henderson. I think I understand the point you are
making. May I ask this question with regard to that section
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officer or the purchasing officer, you would have authority
under the Ervin bill to go --
Mr. Bartimo. Yes, sir.
Mr. Henderson, But in the instance of where he might
cow into money allegedly received from a foreign embassy,
would you think an amendment to the bill that would provide, or
tending to indicate that he had received money from some
source -- I don't know how to phrase this. -- that would affect
his loyalty to the United States Government would cover the
to instance of money from the foreign embassy?
t Mr. B artimo. May I give a hypothetical case that is
12 actually based on a trine case? And when we get into executive
Ir session, we can go into more details. But for purposes of the
i?s record, let's tall this case.
Take a GS-'5 clerk who is working in a nonsensitive job,
but because he is in the position that he is in, he has a bette
facility to gat at classified information. Let's assume that
he is recruited by the Soviets with the idea that because he is
in that particular locals, he might be given access, or have
access, to this sensitive information. And they pay him a lar
sun of money - $10 ,000, for exargple -- with the purpose of
performing espionage*
Mow, under those eircuestanoes, as we read this statute,
there is no conflict of interest. This men doesn't even make
out a conflict of interest statement tinder our regulations and.
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but nevertheless we have circulated this particular act throu**1
those of the Civil Service Commission. Under those circumstarnc
the lawyers feel that this language would preclude us from
calling that man in and asking him details about this sudden
large sum of money that came into his possession. And this is
a real concern.
I do not know whether the committee intended that result;,
out the Departa n t, and the NSA' lawyers and our own lawyers In
Defense tell us this is the construction that would be given
in the example that I have cited for you.
Mr. Henderson. Perhaps our problem is a problem that
I could see how it would arise av=q lawyers, you and I being
one. And I think that we tend to perhaps restrict conflict of
interest in respect to performance of any of his official dutLe
to which he is or may be assigned -- maybe we are being too rya-
strictive .
I think maybe what was intended here is that the term
?ccafliat of interest" be far broader than the type of conflict
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defense antractor?
about the procurement officer who deals with a contractor, with
of interest that we are normally familiar with; and perhaps
we can Clear this up by clarifying Language.
I will yield to the gentleadan?.
Mr. Gross. You seem to want to use the examples of thaos
who deal in security information with a foreign ecabasey, What
 IBB23
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mark and perform as you and I believe he should. Any informa-
tion that indicates that this man .might be in a conflict of
interest situation, that case is as important to us as the
case of possible espionage. We don't draw distinctions. All
these cases that oome to our attention that need corrective
action, we never hesitate. We move as fast as the facts and
127
intr. Bartimo. As I stated, Mr . Gross, we are as much
interested in the procurement officer that doesn't toe the
the circumstances warrant.
Mr. Henderson. I have one snore question, and then I am
going to yield to my colleagues.
Mr. Secretary, you referred to the effectiveness of the
employee representation sunder Executive order 10908 being
seriously disrupted. Do you believe that the legislation shoo]
be carefully designed not to disrupt? And if you could tell
us how you envision it might be # it would be helpful.
Mr. Clewlaw. There are prescribed procedures in support
of Executive Order 109 88 which have to do with employee reque15 and employee grievances. The provisions of senate Bill 1035
would permit the circumMntion, it you will, of admi.nistrativn
regulations, and permit taking some of these matters into the
courts, sometimes even without the express approval of the
employee involved. it would permit a3ployes organisations to
.
aat unilaterally, without the approval of the esplo ee hiaeif.
Mr. Benderscf. Would you recommend that where there are
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to
12,
employee and management agreements in effect providing for
grievance procedures , that those procedures have the effect oi!
law and control over and above provisions of this legislation?
Mr. clewlow. I think I would like to give it some con-
sideration. I would like to submit an answer for the record cai
that.
Mr. Henderson. It would seen to tae this would be one way
that perhaps we could solve this problem, and it is a problem
for me, in that we are trying to legislate here, perhaps, a
procedure where there would not be an agreement between the
employee organizations and manngement in effect. Some of them
are within the Post Office Department. And it would seem to
me that where you have had vigorous, strong employee organisa?-
tions that have over the years developed grievance procedures
that are satisfactory-to them, we might provide that in those
instances where they are in effect, reduced to writing, and
understood between all the employees that those procedures
would control rather than what we would write into this legis-
lation.
That is all I have. Mr. Hamilton?
Mr. Hamilton. Just a question or two, Hr. Chairs=, If
I may,
My understanding from your testimony so far is that you
feel that the national security would be very seriously jeopauIk-
dised by the passage of this bill.
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Mr. B artimo. Year sir.
Mr. Hamilton. As it ndw stands?
Mr. Bartimo. Year sir.
Mr. Hamilton. It would very seriously handicap the opera-
bill by the Civil Service Commission, in which they have gone
tions of the Defense Department, in curtailing and stopping
espionage activities?
Mr. Bartimo. Yes, sir.
Mr. Hamilton. Now we have before us an analysis of the
IA down the various prohibitions of Section 1 and considered them
one by one, and either rendered an objection or no objection;
it and in those instances where they have made an objection, they
have proposed an amendment.
4 Have you made that kind of an analysis of Section 1 of
is the bill?
ie Mr. Bartimo. Yes, sir. I believe there is attached to
the Secretary's statement such an analysis.
Mr. C]ewlow. About the final eight pages of the document,
I believe? air.
Mac. Hamilton. very good. That will be belpfut, I think.
Mr.-Henderson. in order that the record may be clear,
my unanimous consent request that the report be printed in the
record previously should include the section-by.section anal ei,
referred to.
Mr. Hamilton, is the bill so bad to you that it is beyond
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 NOB26
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Mr. Bartimo. As you noticed, Mr. Hamilton, the Secretary
as submitted a report on the bill as passed in the Senate,
amendment?
I speak, for example, on page. 4, where you say "the bill
fails to provide the Secretary of-Defense with authority to
exempt from its provisions certain sensitive activities of
the Department." And you make some other suggestions in your
statement. But basically I have, the impression that you think
the bill has so many defects in it that it is beyond amendment.
and that is attached also to this package, and this points out
some of the trouble, some areas that the Secretary of Defense
and all of us who must live with the bill are really -concerned
about. You will hear more of this in the executive session.
But to address myself specifically to your question,
"in the bill so bad that it can't be amended" -r- as a lawyer,
I would never say a bill could not be redrafted to meet what
we sincerely believe are defects.
I want to state from my own point of view as an attorney
that the cbjectiva of the bill is laudatory. We caerteinly be-
Bove that human dignity should be one of the keystones of
proper management of employees. On the other hand, as the
Secretary has pointed out, the vast responsibilities that fall
on the sensitive agencies like NSA and Defense, CIA, should
be considered. it is a balancing, as the Secretary has pointed
out, of these very crucial and important factors.
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 X82 7
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I hope I have answered your question.
Mr. Hamilton. I don't know that you have, but I get the
impression that you are saying to me in a very nice manner that
we ought to throw the whole bill out and start over.
Mr. Bartima. May we leave the record stand as it is, esir?
Mr. Gross. will the gentleman yield at that point?
Mr. Hamilton. I have one other point. If this bill were
passed as it is , you would want to exempt every Defense Depa rt-
ment employee from it, or just those that have a sensitive
the very heart of our national security arc to be the type of
individual that all of you an this cosuittee would want in
jetted him to, but his duties in office to be certain. that t
individuals chosen to have access to those matters which go to
have access to extremely delicate matters, and I think the
is Secretary of Defense has the responsibility for fulfilling his
officer both because of the laws which the Congress has sub--
t$ Chiefs of Staff, the Secretary's immediate office. These peopi
is classification?
11 Mr. Bartimo. No, we would not want to exempt every
12 employee of the Department of Defnese. As the Chairman stated,
13 we are the largest employer in the Executive Branch. But
14 within the Department of Defense we have. some extremely sensl-
to tine areas that you know about= for exmaple, DIA, the Joint
this job. This is a simple way of stating a very vast problem,
but I think it is accurate.
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 ADB2 8
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Mr. Henderson. in addition -- if the gentleman will
yield -- the way the bill treats the military officers is a con
cern to you, separate and apart from the sensitive areas, I
believe, from your testimony.
Do you believe that the bill discriminates against a
military officer who might be in a civilian capacity because
he, upon recommendation of the board created, could be charg3d
with court martial; whereas the civilian supervisor would
otherwise be punished by the agency that he works for?
Mr. Bartimo. That is correct.
Mr. Hamilton. That is all, Mr. Chairman.
Mr. Henderson. Mr. Gross?
Mr. Gross. Well, Mr. Bartimo, you have expressed your
dissatisfaction with S. 103S. at about H.R. 17760?
Mr. Bartimo. I agree with what the Secretary has stated; I
that we think it is a vast improvement. We think that the bill
is one vhivh certainly, with the proper legislative history --
which we hope we are building now - and with a more detailed
study and analysis, could become a very helpful tool for us in
the Executive Branch. As the Secretary stated, we haven't had
the opportunity to study this bill in depth the way we would
like to do on measures- of this iuportancee.
As the Secretary stated, we hwe asked all components withi
the Departme t of Defense to study it and give us their a ommeaa
1 ' as soon as possible. And when those comments are received, witIl
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 MBB29
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the permission of the Chairman, we would like to submit them,
in order to be helpful, with the possible suggestion aE some
clarifying language, or maybe some more detail in various
categories that are now broad.
B 11 We hope to be constructive and helpful. And I take it,
Mr. Chairman, that when these cov cents are ready, you would lid:
to receive them?
Mr. Henderson. Absolutely. And if the gentleman would
yield for a question in connection with this point --
Mr. Gross. Just one quick question, and then I will be
glad to yield.
if Mr. Clewlow, do you think there is need for either S. 10:35
3 or H. R. 17760?
ii
.A Mr. Clewlow. I would say that we don't feel there is any-
thing, that is necessary in S. 1035. if the Congress decides to
enact the statute, we think that the 17760 would be far better
then the other ones and we think it would provide the basis for
administering a fairly effective personnel program.
Mr. Gross. I will yield to the Chairman.
Mr. Henderson. I wanted to ask the counsel with regard
to the statement of the Secretary on page 9 , referring to H.R.
17760, "as!..to itst specific provisions, the enumerated 'employaa
ruts' axe cast in gee ral terms, and in this respect may need
clarification in order to provide meaningful standards for both
employer and employee. For example, the bill declares that an
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 MBB30 11 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2 134
that it was an area in which we began to get into some trouble..
Mr. Bartimo, it would seem to me that in the Senate bill,,
n an attempt to enumerate and to specify the employee rights,
invasion of personal privacy .'
employee has 'the right to be protected against any unwarranted
e 11 it also seems to me that the broad declaration of the House
bill obviously needs clarification. But would you prefer that
it be spelled out in the law? or would you prefer the general
9 declaration that the right to be protected against any unwarrEul
invasion of personal privacy' be further explained by the ad-
ministrative regulations that would be the responsibility of
the Civil Service Commission, or perhaps through delegation to
13 your Department in those instances where it could not,'-'I
14 spelled out by administrative regulation?
' Mr. Bartimo. Mr. Cheirman, I believe you have stated our
judgment very well indeed. We prefer the guidelines that ' the
Congrees would give to us,, the principles, and we hope to
inpLemmnt those principles in the spirit of the legislative
history that the Congress determines necessary. Then I think
it is better practice to have the Civil Service Comtaissioa,as
you have provided, implement those broad principles with regu-
lations, and in turn, as you might suggest, might even be dele-
gated to the Secretary of Defense for the issuance of regulat
which must be approved by the Civil Service Commission. And :1
thoroughly subscribe to that method of procedure in this very
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 M S31 1 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2 135'
delicate and very important area.
different to others. Because there was a lack of legislative
may mean something to you and myself, and it may mean something
wording, as you well know as an attorney, a word semantically
What we meant by this statement -- this was because we did
not have sufficient time to analyze the wording. The very
for these comments. We may come back with a suggestion of a
history, we wanted to be certain that we furnished you the
best judgment we had, and this is the reasao why we have asked
Sty word change or a new phrase.
It Mr. Henderson. As you review both the provisions of the
12 bill and your testimony, it would be very helpful to have any
19 specific comments that you feel would clarify. For example,
I might-take just a minute ---- if the gentleman would yield
ss further - to emphasize, or to ask you to look at the word
16 "unwarranted. " '"Unwarranted. invasion. " This gave me a prcb:Lom
17 I would be satisfied in a sense to say "the right to be pro-
Sa - tooted against any invasion of personal privacy," but by inc:Lud
ps ing the word "unwarranted," X think we recognize there are
present disclcwurs of stockholdings on the part of procurement
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some instances where it is warranted to invade the privacy of
a federal employee. Is that what you are saying?
Mr. Bartimo. You,, sir.
Mr. Rendergon. Mr. Gross, thank you.
Mr. Gross. Mr. Clewlaw, do you have any requixemnt for
 143832
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for sixteen mmtks, I had to file such a statement before comins
speak from personal experience. Having been with the government
Mr. Clewlow. I can't speak from the regulations. I can
this revised? How often do you require him to file a statement .2
Mr. Clewlow. At the tine the person is employed, sir,
when he is employed in certain of the high positions -- and
quite a number of those pertaining to procurement -- he has to
file a disclosure statement concerning his own stock ownership:
Mr. Gross. At the time of his employment? How often is
officials?
I might again come back to the possible holdings in the
General Dynamics case, or Boeing stock.
in. So I know in the fifteen months I have been here i have
had to file two such statements. So I recognize that is the
satin e kind of requirement which is imposed upon persons in
positions at this level.
Mr. Gross. Well, does this saw requirement apply to
military officers?
Mr. C1ew3vw. You,, it does.
Mr. Grose. Who are involved in procurement?
in, and I have had to file approximately one year after coming
Mr. C1ewlow. Yes, it applies to many more, not even in-
volved in procurement, as well.
Mr. Gross. How about the immediate families of civilians
as well as military officers?
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 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2 137
Mr. Clewlow. I would like to ask Mr. Bartimo. I don't
recall the regulations on that.
Mr. Bartimo. The regulations cover this area. with your
permission, sir, we would deem it a privilege if we might sub--
knit to you what we cot sider a detailed Department of Defense
regulation covering the areas of your very important question=s
this morning. We would like to submit that for the record,
and' if you have any questions after you read that, we would b43
glad to attempt to respond, sir.
so 11 Mr. Henderson. Without objection, it will be reoeivedj anti"
YA. }1 whether it is included in the record or not can be decided by I
sg 11 the Committee and the staff as to its application to the bills 1
Mr. Broyhill. Mr. Chairman, while we are talking about
qg submitting additional information for the record, the Departau>t
to of Defense witneeoes this morning are also basing their ob jec--
17 bons to this legislation on the fact that they have very
exhaustive adetnistrativs remedies, or a vary excellent grievau
is"
it procedure, as I understand it. I think we should have some
e3tplanation of this grievance' procedure as to tether it is a
21 if uniform procedure for the whole Department, or whether the
various agencies under the Department have different prooadura:su
Mr. Clewlow. . I would like to submit something for your
review sad have you determine the extent to which you want it
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 IB34
Ps
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Mr. Henderson. I think it might be well few you to make
con nts with regard to the new grievance procedures that the
Civil Service Conmission has promulgated.
Mr. Clewlow. Right.
Mr. Henderson. Mr. Broyhill?
Mr. Broyhill. That is all I have.
Mr. Hamilton. Mr. Chairman, I just want to clarify, if I
can, in w own mind put attitude towards H.R. 17760. I under-
stand you have not had an opportunity to go into it in great
detail; but in general, area we better off with it or without
it, this type of bill? Is it a piece of legislation you are
advocating?
Mr. Bartimo, If I may, let Be give you a complete raspcans'
As a lawyer sitting in the Office of the Secretary of Defense
where I describe Mr job as having a front seat on what goes on
in the world, t believe that hearings such as the Senate hearin
are very helpful. I believe that this hearing in very-helpful.
Our initial reaction -- and I went to try to to as rsspoi s
I think it is always helpful to have somebody take a look at h
we are operating under tho statutes.
as possible -- is that this bill, 17760, is a much more cos-
structive and wholesome tool, properly iaplemented, with the
proper legislative history? than is a. 1035. That is our
initial reaction. So that, as the Secretary has pointed out
and as we have testified this morning, we lock upon this vehic
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 We would like to caveat. that statement by saying, "let us
deliberate and very detailed consideration with the proper
19 will properly have the right tool. to work with.
it In other words, what we are saying, we think this is so
j important an area where you are dealing with human dignity,
73 11 the very soul of an individual, that we should give it very
also that the managers who have a responsibility to you, to gas,
s so that way down the line somebody is not getting the word, and
G this bills improving it so that not only the Congress will be
7 satisfied that we are upholding human dignity as we should,
S constructive observations, perhaps we can find ways of improvin
at it," which they are now doing. Once they come up with their
have the experts who have to live with such a law take a lock.
15
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as a favorable device.
impetus not only on the Executive Branch, but I am sure on your
ss part as well.
Mr. Gros
2 }
s. Mr. Chairman, I have one other question.
You have areas in the Department of Defense where you umst
have security, and you have areas where any rule or law or
regulation should not apply. in other words, you have security
like to think that we have secure arrangements for all of them,
areas and ncnsecurity areas, do you not?
Mr. Clewlow, We have varying levels of sensitivity. We
but some require varying degrees or varying priorities of
security.
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 NB S36 ifApproved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2 140
to
Mr. Gross. You say all areas, all divisions and areas in
the Department of Defense are subject to security; is this
correct? Security regulations and withholding of information
an that basis?
Mr. Clewlow. Not the withholding of information on that
basis. Let me try to answer it a little more specifically by
saying we have certain positions throughout the Department cf
Defense which we regard as sensitive positional and then we
have some of those which, in addition to being sensitive,, are
sensitive critical. That is what I mean by varying degrees
or varying priorities of security requirements. There may be
some kinds of activities which require no national security
which have no national security implications as we are discuss-
ing them now. There may be others which would have to be highl
restricted.
For example, in the Department of Defense, probably 500 ,00
or more of the positions are what we term sensitive positions.
our Departmental employment of 1,300,000, this would mean the
Within that 500,000 there are probably something in the nature
are 800,000 not ix the sensitive area about which you ask.
of 36,000 to 40,000 that are sensitive critical, a criticality
above that first level which would require even more sensitive
means of administration. This is the thing I ate trying to say,
sir,
Z6 11 Mr. Gross. What I am trying to got at, as you may surest,
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 148837 11 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2 141
to I
ZO- 11
is that if it were possible to do so, it would be good to hatre
a list of sensitive areas in the Department of Defense, and to
list of the nonsensitive; that is, people on a sort of before-
the-fact basis.
Now? I have had my troubles, and I an sure other Members
of Congress have, too, in getting information. I had it with
respect to this Z`FX Fll1 deal. In the early stages of this,
a cloak of security was wrapped around it, and I couldn't get
certain information with respect to this deal. I ran into it
in NASA -- you are not concerned with this -- with respect to
the Apollo disaster in the early stages of it. Newspaper
people can well testify that it was hard to get any information
in the early stages of the Apollo disaster. Why, I don't kncw.
But if we could have certain areas listed as being non-national
security areas, it would be most helpful.. It would be to me,
so that I wouldn't be confronted with this security lid when
I wont after information in those areas, and other Members of
Congress, or other citizens.
Mr. Clewlow. I should like to suggest that we explore wits
your staff --
Mr. Gross. I am trying to say you hide behind this cloak
of secrecy and security at every opportunity, not only in the
Department of Defense, but in other areas of government, and I
say when it is not justified.
But excuse me for interrupting.
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 MBB38
"Employee Service Record Card (previously known as WD Form
80 or OF43 card) is used by the supervisor to record important
!ffi information about his employees. it shows such information as
1,4 position ti tie, grade, pay, promotions, length of servi rse ,
ga. tenure status, physical handicaps., age, skills, training,
education, and performance appraisals. These are things a
supervisor has to know to propexly evaluate the progress of
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142
Mr. Henderson. Mr. Secretary, you were going to suggest --
and I think it would be well -- that you might work with our
staff to see if you could furnish us this information; and I
think it could be helpful to us.
Mr. Secretary, and Mr. Bartimo, now I arm referring to a
for a greater response if it becomes necessary. But this i
notice from the Department of the Army, Sacramento Army Depot,
Civilian Personnel Information 68-4, dated 17 May 1968, to
All Suployees. And I will make a copy of this available to you
go I pertaining to the use of the Employee Service Record Card.
r
r.
r+~e.
f
..
wake deci
dividuals and t
i
i
ns
ti
o
o p
ope
cou
o
n
s
o
ac
on.
11
in easily aoce ssib ]e to the supervisor is a at.
? (b) . The supervisor may also enter records of incidents
22 11 such as tardiness, errors, outstanding jobs done, verbal warn-
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employee, and evaluation of habit patterns. No one can be
ingot at cetera. These are necessary for the supervisor to
review in annual performance appraisals, discussions with the
 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2
an official disciplinary action, an award or a pranotion."
card, in any event, cannot be used in itself to support either
may ask the employee to review the card and initial entries.
However, this is at the supervisor's discretion. Likewise,
whether the employee initials or not is at his discretion. The
a period' of time.
lie). S in ae the service record card is the supervisor's
record, employees are not entitled to look at it, Supervisors
143
expected to remember everything that happens with a group over
This is the first section, and I won't go into the second
ji section, which refers to sick leave and other items.
is What is your feeling about supervisors making these record
is and it being within the discretion of the supervisor as to
whether it goes to the employee? We are talking about an
8 employee'a right of privacy. noes the supervisor have this
right of privacy to make notes, in your opinion, about the
performance of his employees, and have the discretion whether
ea he would reveal that to the omployee?
and of that,. I believe that the supervisor has a responsibility
Mr. Clewlow. I an not familiar with that form to which
you refer.
With regard to the guastion which you have asked at the
fact would administer his 5ab of supervisor.
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to make periodic apprais als f whether he keeps them in his own
mind or whether he records them would be a matter of how he in
 NS840
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If he provides long written aomm?nts which might, in
improper circumstances, be judged inimical to the interests of
the esployyes, this may be another matter which would have to
who are supervising civilian workers should be included in the
legislation? And you have already said not to the extent of
S. 1035. but if they are in supervieor capacities, do you think
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be examined. I don't know.
Mr. Henderson. From time to time the Committee and the
staff have had suggestions from employee organizations that
anything that is written down about the employee ought to be
revealed to the employees, and here is just an illustration.
This seems to me to be a fairly reasonable type of system; but
I thought it was interesting in that it shows the other side
of a picture; that you have
got a supervisor's reoosd, and his
right to keep such notations as he makes about his employees
confidential if he wants to.
I will ask the staff to make a full copy of this and presen
'it to you.
Mr. Clewit w. We would like to examinee it.
Mr. Henderson. It may be well for the Department to give
as your oossaents with regard to this, and how the Legislatioxa
before us might affect supervisors in the performaave of tbt:bs
typo of responsibility.
Now, lastly, as gar as I am concerned, do you think that
the military supervisors -- these axe enlisted men or officers
 I B41 Lnnrriwnrl I-r%r Qnlnncn 9nn9If19/f1R ? (1 A_Pr1D7Q_fl 9Annni nn7nnni-7 145
that the legislation ought to apply to theme Should they be
exempted? Or are you haying that they ought not to have greats.
responsibility or greater punishment than would fall on an
ordinary civilian supervisor?
Mr. Clewlow. We would like to get more specific responses
from our components so we know the extent covered. We would
like to be able to respond to that in our comments to you.
Mr. Henderson. If there are no other questions,, then the
Subcommittee will go into Executive Session to hear from he
National Security Administration witnesses who are here; and
I think it would be helpful to the Subcommittee if you gentlemer
in the Department of Defense would remain for that session..
(Whereupon, at 11:15 o'clock p.m., the Subcommittee
proceeded in Executive Session.)
Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2
 Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2
Approved For Release 2002/01/08 : CIA-RDP79-00632A000100070001-2