DEAR MR. FREY:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00314R000600010024-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 9, 2016
• Document Release Date: July 26, 2000
• Sequence Number: 24
• Publication Date: June 21, 1977
• Content Type: LETTER

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i977
OTC 77- 2481~(~. 2 ) JUPd
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This is in response to your request for the views of the Central
Intelligence Agency on the Civil Service Commission's views letter on
H.R. 3793, a bill to provide Federal employees under investigation for
misconduct the right to representation during questioning regarding such
misconduct.
We concur with the Civil Service Commission's opposition to the bill.
There is adequate protection of Federal employees from arbitrary and
capricious action in already existing statutory law, and the imposition of
further procedural protections would merely hinder effective personnel
management.
We also agree with the Commission that the procedures proposed in
H.R. 3793 could introduce an adversary character into the circumstances
where otherwise there might be none.
Due to the unique character of the Agency, we have additional reasons
for opposing II.R. 3793, which we would like to express to the Committee.
We will submit a views letter for clearance in the near future..
Sincerely,
OGC HAS REVIEWED George L. Cary
Legislative Counsel
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Honorable Robert N.C. Nix
Chairman, Committee on Post
Office and Civil Service
United States Senate
Washington, D.G. 20510
Dear Mr. Chairman:
This is in response to your request for the Civil Service Commission's
views on H.R. 3793, a bill "To amend title 5, United States Code, to
provide Federal employees under investigation for misconduct the right
to representation during questioning regarding such misconduct."
H.R. 3793 would provide that Federal civilian employees who were under
investigation for misconduct which could lead to suspension, removal, or
reduction in rank or pay would not be required to answer questions relat-=
ing to the misconduct unless. they were first advised in writing that they
were under investigation for misconduct, the specific nature of the mis-
conduct, and of their right to have a repr.esentative'present during the
questioning. The employees would have to be given a reasonable amount of
time, not to exceed five working days, before questioning in order to ob-
tain a representative. H.R. 3793 would prohibit the use;of any employee
admissions in subsequent actions for suspension, removal; or reduction
in rank or pay unless the employees had been advised of their right to
representation. '
The second portion of the bill provides for an appeal to the Commission
by employees disciplined on the basis of their admissions when they were
not informed of the rights provided by the first portion of the bill.
The procedures provided in the bill are substantially the same as those
required of the police in criminal investigations. The Civil Service
Commission helicives that ample protections are presently provided by
statute, Executive order, and Commission regulations for employees for-
mally charged with serious misconduct. The provisions of the Veterans
Preference Act (now codified in section 7512 of title 5, United States
Code) require 30 days' advance written notice of proposed adverse action
against a Federal employee who is a veteran, with opportunity to respond
personally and in writing, to the charges. These protections were extend-
ed to all employees in the competitive service by Executive order 10988,
the predecessor of Executive Order 11491, which now governs the Federal
Labor Relations Program. In addition, The Commission's regulations (Part
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772 of title 5, Code of Federal Regulations) insure such employee
protections as advance written notice of adverse action, reasonable
time to reply, written decision by a higher-level agency official than
the proposing officer, appeal of the agency decision to the Commission,
full hearing by the Commission, and written decision.
The Commission is deeply concerned about the effect that passage of this
bill would have on personnel management in the Federal service. H.R. 3793
would provide protections to Federal employees similar to, but in some ways
more extensive than, those provided to private sector employees under the-
National Labor Relations Act as interpreted by the Supreme. Court in the de-
cision of N.L.R.B. v. Weingarten Inc., 43 U.S.L.W. 4275 (February 19, 1975).
In that decision, the Court recognized the right of an employee in private
industry.to have a representative present during investigatory interviews
when the employee reasonably believes that the interview might lead to dis-
ciplinary action and when the employee asserts his right to representation.
H.R. 3793 goes further in requiring that specific notice be given to the
employee of his right to representation. Extension of "Weingarten" type
protections to the Federal sector is inappropriate because Federal employees
already enjoy statutory and regulatory rights. and protections against ar-
bitrary and capricious disciplinary actions whereas private sector employees
do not have such rights and protections. The bill also ignores the Supreme
Court's suggestion in the Weingarten case that employees may find-positive
benefits in cooperative discussions with managers.
The bill does not define "under investigation" or establish any meaning-
ful criteria for determining the circumstances under which the procedural
protections of proposed section 7171 would apply. While we question
whether the bill is really intended to provide formal procedures for all
instances when employees are to be questioned on potentially disciplinary
matters (however minor), the general language of the bill could well lead
to this kind of interpretation and/or application. The Commission feels
strongly that informal counseling of employees by supervisors concerning
their work should never be subjected to adversary procedures. One of
the most effective management tools is appropriate and timely informal
counseling of employees concerning the less favorable aspects of their
work performance or conduct. (Counseling obviously assists the em-
ployee as well.) Part 735 of the Commission's regulations (title 5 of the
Code of Federal Regulations), issued pursuant to Executive Order 11222,
requires agencies to provide employee counseling concerning employee re-
sponsibilities and conduct. We believe that the broad provisions of this
bill could.make it difficult for superiors to counsel employees informally.
Allegations of "fruit of the poisoned tree" would become commonplace. The
very existence of this legislation would have a "chilling" effect on the
willingness of supervisors to employ informal preventive measures which
primarily benefit the employee whose performance or conduct needs improve-
ment.
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It has been argued that because the provisions of this bill would give
an employee the opportunity to secure representation at a pre-disciplin-
ary stage, the employee would be able to avoid the stigma of a proposed
adverse action. We believe the
anfeathe rlierpstageomoreprather
relationship becomes an adversary one a
than fewer adverse actions are likely to be proposed. This is so because
agency officials might well decide to omit preliminary informal question-
ing (which in many cases results in an understanding which makes an
adverse action unnecessary) because the procedural requirements are sub-
stantially the same as those now required for a proposed adverse action.
H.R. 3793 would also provide that ay civilian employee of an executive
agency against whom an action is taken in violation of proposed section
7171, could appeal the violation to the Commission. We interpret the bill
as extending appeal rights to cover probationary employees in the competi-
tive service, all excepted service employees and temporary employees in.
both the competitive and excepted service. (The Commission currently has
appellate jurisdiction over suspensions, removals, or reductions in rank."
or pay for competitive service employees who have completed their pro-
bationary periods and preference eligible employees in the excepted serv-
ice with one year of continuous service.) Obviously,an extension of
appeal rights like the one contemplated by H.R. 3793 would impose a burden
on the Commission's appeals system which would seriously affect expedi
tious resolution of the cases that affect employees most adversely. More
importantly, H.R. 3793 would grant many employees who have been excluded
from past entensions of appeal rights what would amount to a right to
appeal adverse actions. This is so because failure of an agency to advise
employees of their right to obtain representation before questioning would
most likely result in reversal of any action to suspend, remove, or reduce
an employee in rank or pay whenever the employee exercised the appeal
right granted by the bill. The Commission believes that extension of
appeal rights to probationers, excepted service employees, and all tem-
porary employees must be carefully considered.
In summary, the bill is modeled on the Miranda rule which applies to
sharply adversary situations where police have in custody individuals who
.have become "accused" persons. Such a.process could well.be applied to
nonadversarial situations in which a manager who lacks sufficient information to decide whether it is worth charging-anyone, is precluded
from engaging in cooperative discussion to develop an informal judgment
and must instead freeze the situation into adversarial form at high
procedural cost and at the risk of being unable ever to solve what may
prove to be a simple matter which merits no charges. We also feel that
Federal employees already '.have ample protections against arbitrary and
capricious agency actions. Accordingly, the Commission believes tihatuthe
provisions of H.R. 3793 are extremely undesirable, unnecessary,
warranted, and strongly urges that the Committee not approve the bill."
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The Office of Management and Budget advises that enactment of 11.R. 3793
would not be in accord with the program of the, President.
By direction of the Commission:
Sincerely yours,
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 UNCLASS% Roved
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FROM:
Legislative Counsel
EXTENSION
NO.
6C19 HQ
6126
DATE
21 June 1977
TO: (Officer designation, room number, and
ildin
)
b
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
g
u
INITIALS
to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
1? OP
We have been asked by 0MB to
5E13 HQ
comment on the proposed report of
i
i
on on
ss
the Civil Service Comm
2.
H.R. 3793, the right to represen-
tation bill. Please review the
draft response and provide any
3.
comments you may have by Monday,
27 June. Thank you.
4.
STA
INTL
5.
Office Ot Legislative Counsel
6.
7. OLC
6C19 Hqs.
7. We do not have a copy of
therefore
subject Bill and cannot
_
,
,
8.
either cite specific problems or
determine the impact of the
but on basis
applicable provisions
,
9.
of the CSC letter, we strongly
concur with the OLC proposed
response to 0MB endorsing the CSC
10.
opposition to HR 3793. It would
appear to seriously hinder
ement and
ersonnel mana
effective
,
g
p
11
if, as indicated in the CSC letter,
the appeals system would be
extended to all employees
,
12
regardless of status, would appear
to jeopardize the Agency's new
three ear trial neriod policv
-
13.
STATI
TL
14.
F. W. M. Janney
Director of Personnel
15.
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FORM 610.E EDTIONSUS ^ SECRET E] CONFIDENTIAL ^ INTERNAL
3-62
ONLY UNCLASSIFIED
'"TERNAL CoUr''1ENTIAL ^ SECRET