LETTER TO LAWRENCE R. HOUSTON FROM CHARLES H. REICHARDT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100010006-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 16, 2016
• Document Release Date: February 7, 2005
• Sequence Number: 6
• Publication Date: December 18, 1967
• Content Type: LETTER

UNITED STATES
ATOMIC ENERGY COMMISSION
WASHINGTON 20545
December 18, 1967
LAWRENCE R. HOUSTON
GENERAL COUNSEL, CIA
I find that we not only wrote to Schultze,
but also to Ervin back in May.
Copies have been attached for your use.
Charles H. Reichardt
Director of Intelligence
Attachments:
1. Cy ltr, GM to Schultze dtd 5-2-67 (U)
2. Cy ltr, Chairman to Ervin dtd 5-16-67 (U)
dLC
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U NITED STATES
ATOMIC ENERGY COMMISSION
WASHINGTON. D.C. 205:5
"WSJ is (} ( jr
Honorable Charles L. Schultze
Director
Bureau of the Budget
This is in response to the memo route slip from your office, dated
April 25, 1967, asking for our comments on a proposed Civil Service
Commission report on S. 1035, a bill "[t]o protect the civilian
employees of the executive branch of the United States Government in
the enjoyment of their constitutional rights and to prevent unwarranted
governmental invasions of their privacy."
we have reviewed the proposed -report and find ourselves in general
agreement with the point of view expressed. We have a number of sureees-
tions to offer, and we also believe, with respect to subsection 1(a) of
the bill, that a modification should be incorporated not only in the
Civil Service Commission report but also in the draft report which we
transmitted to you by our letter of April 19, 1967.
Subsection 1(a) of the bill is considered on page 5 of the Civil Service
Commission draft commonts, and as item 111.1 of the appendix of our
draft report on the bill.. We had construed the prohibition on question-
ing with regard to "national origin" in that subsection to relate only
to questions concerning an individual's ethnic background. The Civil
Service Commission report appears to construe the prohibition more
since it takes the position that an inquiry to determine
broadly
citizenship would be allowed only under the proviso to that subsection.
Section 11-5 of the Atomic Energy Act requires, as a condition of A:C
employment, that the Commission receive a report on the "character,
associations, and loyalty" of an individual, so that it can determine
whether permitting him to have access to Restricted Data will endanger
the common defense and security. In making that determination toe
Commission has found it necessary to inquire as to the date and place
os birth and the citizenship of each employee. If subsection 1(a) is
construed to preclude this type of inquiry, we object to it. We note
that the proviso would be of no use to this agency since the citizenship
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Honorable Charles L. Schultze - 2 -
of a person is not a statutory condition of his obtaining; or retaining
employment with the Atomic , nerCZr Commission. We suggest that the
Civil Service Commission comments be revised to reflect these points.
L'e also submit for your consideration the additional paragraphs set
forth in the appendix to this letter, which modify the comments on
subsection l(a) as they appeared in the appendix to our draft report.
previously submitted to you.
The Civil Service Commission comments on subsection 1(f) of S. 3.035
(pages 7 and 8 of the draft report) reflect concern only from the stand-
:ooint of evaluating the suitability of an individual for employment. As
we pointed out in our draft report, security considerations must also be
taken into account in evaluating this subsection. Thus, questioning on
nutters such as reported paxticiDration in crim:Lnal activities, use of
certain drugs, sexual pervcr;ion, alcoholism, subversive activities or
associations, the residence of relatives in an iron-curtain country, and
other matters of security interest could be precluded by the subsection.
We believe that the Civil Service Commission report appropriately should
refer to the importance of inquiry along these lines in the conduct of a
security program. We also believe that the "mental illness" exception
is too narrow to be of significant value to an.agency with national
security responsibilities, and we suggest that the Civil Service Commis-
sion report also reflect this point of view.
?,Te believe that the Civil Service Commission comments on subsection 1(g)
(draft report, page 8), insofar as they relate to the use'of polygraphs
by agencies other than CSC, should be somewhat more guarded. We have
long believed that the use of a poly ra-pr with the consent of, or at
the request of, the subject, under carefully controlled conditions and
with the approval of a high level agency official, is a proper part of
a security program. Our own comments reflect this view, and we suggest
that the Civil Service report be modified so that it will not be con-
strued as inconsistent with this view.
With respect to the CSC comments on subsections 1(j) and (k) we su gest,
as a technical change, that the words "con'flicts involvement is clear"
(draft report, page 9, paragraph 2, last two lines) be modified to read
"conflict of interest situations arising is great."
We note, that the proposed Civil Service Conmiission comments .take 'the
position that complaints of violation of an employee's or applicant's
rights under the Act should be resolved, where possible,' within the
agency concerned. We agree that internal resolution of complaints is
most desirable from the point of view both of the employee and of
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Honorable Charles L. Schultze
of the report of the Atamic Energy- Commission which deal withth0ao
Civil Sorvico commission's ,endorsing, or referring to, those portions
report deal primarily with additions to that report which we feel that
security considerations dictate. Tf the Civil Service Commission fools
that it is riot in a position to melee ' conL snts from the point of view
of national security considerations, we would have no objection to the'
.the appendix to this letter for language contained in that report.
Our suggestions with re:.pect'to the Civil Service Commission draft
PER
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management. Our proposod roport is intondod to endorse this position,
but for clarification tro suGgest substitution of languago appearing in
Enclosures,
Appendix
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APP ENTDIX
Subsection 1(a)_ Add a new item 1.1 to the appendix to the proposed
AEC report .on S. 1035 (with other items renumbered accordingly and
'item 111.1 comments on ? 1(a) deleted):
1. Subsection 1(a) would declare it, 'to be unlawful for any officer
of any executive department or agency, or any person acting
under his authority, to racjuire or request any employee or an
applicant for employment to disclose his race, religion or
national origin, or that of his forebears. An exception is set
forth for inquiry concerning the citizenship of any employee or
applicant "if his citizenship is a statutory condition of his
obtaining or retaining his employment."
This subsection appears to be designed to promote equal erapioy-
rnent opportunity by prohibiting questioning relating to an
employee's ethnic background, but it could be construed also to
preclude questioning concerning an employee's date and place of
birth and citizenship. For this reason, we object to the sub-
section. This latter type of information is an essential part
of the investigation and report to the Commission on the
."character, associations, and loyalty" of an individual which
is required by Section 115 of the Atomic Energy Act of 1954,
as ar;londed, to be undertaken as part of our security program.
The proviso would be of no use to this agency, since the citizen-
ship of a person is not a statutory condition of his obtaining or
retaining' employment with the Atomic Energy Commission. We
therefore recommend that this subsection at least be made inappli-
cable to national security matters.
B. Section 6.' Substitute the following subparagraph for subparagraph 2
of`the second paragraph appearing on page 6 of the appendix to the
proposed AEC report on S. 1035 (item Ii):
2. The employee or applicant should be required first to attempt to
seek adjustment of a complaint within his own agency. If such
attempted adjustment. is unsuccessful, the employee or applicant
should be limited in seeking redress of his grievance to one
method; or, in the alternative, should be required to choose
between Board review and review under agency grievance rroce-
dures (comparable to the procedures offered to adverse action
appellants by many agencies). A time limit within which actions
must be filed with.the Board should be spelled out in the Act,
either in terms of a, specified time limit or in terms of the
time limit provided under agency grievance procedures.
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ry..-
UNITED STATES
ATOMIC ENERGY CCOMMISSION
WASHINGTON, D.C. 20545
Dear Senator Ervin:
Thank you for your letter of March 16, 1967; requesting a report on
S. 1035, a bill "[tjo protect the civilian employees of the executive
branch of the United States Government in the enjoyment of their con-
stitutional rights and to prevent unwarranted governmental invasions
of their privacy", and enclosing a memorandum summarizing the differ-
ences between S..1035 and S. 3779 of the 89th Congress. Your letter
asks that we bring up.to date our earlier report on S. 3779 and, in
the light of the changes from S. 3779, submit any comments we may wish
to offer on S. 1035.
You may recall that in our letter of February 15, 1967, on S. 3779,
we pointed out that we are in full accord with the desire to avoid
infringement of the constitutional rights of government employees, and
to prevent unwarranted governmental invasion of their privacy. We
found, however, that the broad criminal prohibitions of the bill would
compromise the ability of the Commission's officers to carry out our
programmatic mission, particularly with' respect to our security.pro-
gram and our statutory responsibilities for safeguarding classified
information. We therefore-wore unable to recommend passage of S. 3779.
We'regret that we are also unable to recommend the adoption of S. 1035
in its present form. We believe that?the bill is inconsistent with
the conduct of an effective security program and, in addition, with
the exercise of managerial efforts to create an environment which will
further not. only the programmatic needs of the Federal Government but
the best interests of employees.
Management in the Federal service is traditionally oriented to deal
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drawn. We believe that a punitive statute such as S. 1035 would inevi-
tably-be regarded as evidence that Congress mistrusts the integrity and
ability of management in the Federal service. The bill as written
would attack not only certain deviations from proper practice which have
been found to occur in relatively.few places in the Federal service, but
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MAY 16 1967
the entire personnel and management structure of the Federal Govern-
ment as well.: -- It would thus tend to make a career in the Federal
Government less attractive.
We are also opposed to the bill because it proscribes under criminal
penalties, sometimes in very general terms, actions which may be
undertaken in the best of faith for the protection or advancement of
the interests of the Government and without any collateral illicit or
sinister purpose. Moreover, it provides both judicial and quasi-
judicial remedies, in addition to existing remedies, to review charges
of unlawful actions which may be brought by employees and to determine
and administer sanctions, when such ends may be effectively achieved
by administrative action.
We believe that-an approach to the problems which may exist should be
a positive one of education and indoctrination to prevent alleged
abuses, rather than the imposition of a statutory list of unlawful
actions enforced by fear of criminal punishment. We would respond
favorably to Congressional action which would express concern about
supervisory actions which tend to-Invade Federal employees' privacy,
set certain goals, and required the President to establish regulations
to accomplish the stated goals.
If the Congress, however, should determine that a bill such as S...1035
is desirable, we recommend a number of substantial' changes in the bill
submitted for review. The attached Appendix refers to the differences
between S. 3779 and S. 1035, to the extent that they are significant
from the point of view of the Commission's program, and discusses the
changes we recommend..
The Appendix explains in greater detail why we believe that S. 1035 in
its present form would seriously compromise our ability to meet our
statutory obligations, and-the nation's needs, for safeguarding classi-
fied information and thereby the common defense and security. As we
pointed out in our letter on S. 3779, in carrying out our security pro-
gram the Commission has been particularly diligent in protecting the
right of an individual to a fair hearing in a security case, including
the right to counsel and, consistent.with necessary security limita-
tions, the right to confrontation and cross-examination of adverse wit-
nesses. The Commission must nevertheless be equipped.with the tools to
provide for an effective'security program, and the Appendix shows how'
S. 1035 is inconsistent with the piublic interest in that regard.
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t~oa?a proza~n..
Le:".,t also C~i;3C:At 16,110 Gca:tcutb dixf-,.Cult.cs
piccc.:tcnd ay the ad.;:i;1 yfiL`: Iva ~:e, ,; d Hwy san ctiorc l by S. 1035. Wo
.&av,a oifc:?~.od CR:::Q parL?3ncnt r:u;Scotionc wfaicII is y be uro u1.
r :c urcau of tho Dud,-,o; lies :clvrsed that thara Is no objcc":ion to
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APPENDIX
1. Provisions having potential effects on the Commission's security
and personnel programs.
1. Subsection 1(a) would declare it to be unlawful for any officer
of any executive department or agency, or any person acting
under his authority, to require: or request any employee or an
applicant for employment to disclose his race, religion or
national origin, or that of his forebears. An exception is set'
forth for inquiry concerning the citizenship of any employee or
applicant "if his citizenship is a statutory condition of his
obtaining or retaining his employment."
This subsection appears to be designed to promote equal employ-
pent opportunity by prohibiting questioning relating to an
employee's ethnic background, but it could be construed also to
preclude questioning concerning.an employee's date and place of
birth and citizenship. For this reason, we object to the sub-
section. This latter type of information is an essential part
of the investigation and report to the Commission on the
"character, associations, and loyalty" of an individual which
is required by Section 145 of the Atomic Energy Act of 1954,
as amended, to be undertaken as part of our security program.
The proviso would be of no use to this agency, since the citizen-
ship-of a person is not a statutory,, condition of his obtaining or
retaining employment with the Atomic Energy Commission. We there-
fore recommend that this subsection at least be made inapplicable
to national security matters.
2. Subsection 1(b) would declare it to be unlawful for any officer
of an executive department or agency, or any person acting
under his authority, to state or intimate that notice will be
taken of an employee's "attendance or lack or (sic] attendance
at any assemblage, discussion, or lecture", held or called by
either a Government officer or by any outside parties or organi-
zations, to "advise, instruct, or indoctrinate" any employee in
anything other than the performance of assigned official duties
or the development of skills, knowledge or abilities which
qualify him for the performance of such duties. The subsection
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1
cable'to the entire bill. Alternatively, we suggest, as a
minimum for this'subsection, that an additional proviso be
added,, using language already appearing in subsection 1(d),
as follows: -
Thus it would apparently be a:misdemeanor to tell an employee,
or attempt to state or intimate to him, that his attendance at
a meeting of the Communist Party, or-the Mafia, would be noted.
We suggest an exemption for national security matters, appli--
attendance or lack of attendance at meetings, rather than hold-
ing such meetings. In addition, it appears to permit "taking
notice" of an employee's outside professional activities. In
these respects, the subsection alleviates certain deficiencies
of the previous bill which, as we pointed out, were likely to
operate to an employee's detriment. But by doing so the sub-
section, as well as subsections 1(c) and 1(d), would require a
supervisor, under threat of criminal penalty, to determine
whether or not a particular activity involves an employee's
official duties or the development of skills, knowledge, or
abilities which would qualify him for the performance of offi-
cial duties, a matter of opinion about which reasonable men
might differ widely in many cases. 'Moreover, this subsection
is still so broad that it prevents activities which may be
required in the interest of the co-- on defense and security.
explicitly sanctions taking notice of an employee's participa-
tion in the ac;ivities of any professional group or association.
This subsection, which is derived from subsections 1(b) and 1(c)
of S. 3779,'appears to condemn taking notice of an employee's. ,
a report concerning activities not related to the performance
9.3779, prohibits requiring or requesting an employee to make
"Provided further, ThIat nothing in this sub-
section shall be construed to prohibit taking notice
of the participation of a. civilian employee in activ-
ities which may be in conflict with his official
duties.".
3.. Subsection 1(d). This subsection, derived from 1 1(e) of
of official duties or the development of skills, knowledge, or
abilities which qualify him for the performance of such duties,
"unless there is reason to believe that the civilian employee ';;,`
is engaged in outside activities or employment in conflict with
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subversive organizations, or associated with such members, or
the common defense and security" (42 U.S.C. 2165). We reported
that the ABC has found that conduct comprehended-by any cate-
gory of derogatory information set forth in 10 CFTC Part 10 may
endanger the common defense and security, or may not be clearly
consistent with the national interest, and must be taken into
account in determining whether an individual shall be granted
access to classified information. We pointed out that the cate-
gories include, among others, cases in which the individual has
a mental illness, has been. convicted of certain crimes or has
been engaged in criminal activities, is a user of certain drugs,
has abused trust or been dishonest or engaged in infamous,
immoral or notoriously disgraceful conduct, is a sexual pervert
or homosexual, or is a user of alcohol habitually and to excess;
and cases where he or his spouso has held membership in certain
individual to have access to :tiestricted Data "will not endanger
exceptions, for polygraph examinations..
Both of these subsections are derived from subsection 1(g) of
S. 3779. Our letter of February 15, 1967 pointed out that this
subsection was inconsistent with our security regulations and
procedures, which have been adopted to implement the statutory
requirement that the Commission determine that permitting an
Subsection 1(g) includes a similar prohibition, but with no
"whether or not [an] individual is suffering from mental illness",
his official duties". This last clause was not present in
S. 3779. We construe it to allow an agency to require reports
of activities of employees which may be inconsistent with* the
common defense and security, as well as the appropriate per-
formance of official duties, and as so construed we believe
that it tends to meet the security objections to the subsection
which we voiced in our previous letter.'
4. Subsections 1 f and 1(g). Subsection 1(f) would declare it to
be unlawful to require?,or request an employee or an applicant
for employment to submit to any interrogation or to take any
psychological test to elicit information concerning "his per-
sonal relationship with any person connected with him by blood
or marriage, or concerning his religious beliefs or practices,
or concerning his attitude or conduct with respect to sexual
matters". An exception is made for questioning,"in individual
cases" in order to enable a "Psychiatrist" to determine
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may be inimical to the interests of. the United States (10 CPR
?? 10.11). We also described the role'of the interview,.in our
investigative process, and how it is used to protect the indi-
vidual as well as national security, since it provides a con-
venient forum for an employee or applicant to explain reported
information. Since, without an interview, formal hearing pro-
cedures would be necessary in every case, we concluded that the
provision-in S. 3779 prohibiting the specified types of inquiry.
was inconsistent both with protecting the employee or applicant
and with enabling us to make informed security decisions.
S. 1035 differs from S 3779 in this respect mainly by includ-
ing an exception for questioning by a psychiatrist in the case
,of "mental illness". That, of course, is one of the categories
..of derogatory information set forth in our regulations (see
10 CFR 10.11(a)(7)). But we think that the exception is too
narrow to be adequate from a security standpoint. We believe
that questioning with respect to mental illness can appropriately
be conducted not only by a psychiatrist but also by other pro-,
fessionals, such as clinical psychologists, who are qualified
and frequently used in order to determine whether an individual
,is suffering from mental illness. Moreover, the subsection
still would preclude questioning on such matters as reported
participation in criminal activities, use of certain drugs,
sexual perversion, alcoholism, subversive'activities or asso-
ciations, the residence of relatives in an iron-curtain country,
or many other categories of information covered by our security
regulations, except to the.limited extent that they might be
brought under the umbrella of "mental illness". If informa-
tion on these matters were received, and if mental illness were
not involved, we would be required by the terms of the proposed
statute to initiate board hearings in every single case where
such information was received; we could not even inquire of the
individual whether the reported information correctly related
to him.
For these reasons, we believe that S. 1035 would seriously
circumscribe the effective conduct of our security program.
We strongly recommend, as we have previously, that the bill
provide a general exemption for matters pertaining to national
security. Alternatively, we recommend that subsection 1(f)
provide an'exception for questioning which is required in the
interest of safeguarding the common defense and security.
This subsection could be construed (depending on the meaning
attributed to the words."has personal relationship") to make
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it unlawful for personnel officers and sclccting officials to
-~quire or recu'ect that applicants answer questions designed
to elicit i-e.i oliaatioa concerning, relatives who work for the
Gov=:lent. Without. this iiifor-oration, an agency could not
administer anti-nepotism policies, or the current policy that
children of Cover- ant eriployees' play not be employed in tom-
porary surer appointments in the agency in which their parents
serve. He recoa:nend in this ragard' that subsection 1(f) also
provide an e:.Ception for questions normally asked on employ-
ment applications as to the identification and residence of
certain close relatives.
The use of polygraphs would be prohibited by su~scction 1(3)..
's'ae EC does not use polyrra,ihs e:~ccpt with the: consent of
the individual who is to be the subject. Some persons have
requested polygraph examinations in connection with their
security clearances. Although we would have no-,objection to
subsection 1(g), we recommend that it be clarified to allow the
use of the polygraph with the consent of the subject.
II. !d.;_ntistrative provisions.
Scct,:on 6 of S. 1035 would establish a "Board on Employees' Rights"
with powers designed to or able it to'prevent violations of various
provisions of the Act. his Board had no counterpart in S. 3779,
and the remedies which it would' provide are in addition to the crimi-
al and civil judicial sanctions proposed in S. 3779 and repeated
without substantial change in S. 1035.
The Board would consist of three members appointed by the President,
~r t;
th
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e a
vice and consetf th S N
n oeenate.o mcrabe_? "shall be an
oyficea or employee of the United States Government"t it would
have Power to investigate complaints, hold hearings,card make deci-
sions with respect to violations of the Act. If it round that a
violation has occurred, it would be.,-required to issue a cease and
e s1st Order against the offending, officer or employee, and to
endeavor to e1im1nate an unlawful act or practice by'-informal methods
of conference, conciliation, and persuasion. The Board would also
be empowered, in its discretion, to issue an official reprimand, or
to order the suspension without pay or removal of an officer or
employee found by it to have violated- the Act. (Special provisions
are included for dealing; with Presidential appointees and officers
of the:Armed Forces.) The bill would provide for roview of a Board
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determination or order in the United States District Courts.
Our letter on S. 3779 strongly objected to the criminal enforce-
ment provisions of that bill. We find that the criminal pro-
visions of this bill are equally'objectionablc, despite the lesser
penalties. We continue to believe that criminal sanctions are
inappropriate for dealing with the type of activity covered by the
bill. Their only result can be the intimidation of officers and
employees of the Government in the conduct of their official duties,
without compensating benefit to the public interest.
organization) acting on his behalf, with appeal to
.the United States District Courts;
1. action before the Board, either by the employee
himself or by another.party (which may be an employee.
all of the following methods of redressing an alleged grievances
it would be established by S. 1035 it can only serve as a vehicle
for obstruction and delay, since it merely adds other means for
challenging agency action. If S. 1035 in its present form were
enacted, an employee could in many cases use any one,.several, or
The proposed Board is preferable as a means of enforcement, but as
review;
2. agency grievance procedures, with later judicial,
3. agency discrimination procedures, with review by
Civil Service Commission, when an action prohibited
also constitutes discrimination;
4. suit in-a United States District Court under
Section 5 of S. 1035, for injunctive relief (without
regard to whether administrative remedies have been
5. action in the District Court for an injunction,
brought by an employee organization with the consent
and on behalf of, but not as legal representative of
the aggrieved employee; and
6, complaint to a United States Attorney to'enforce
criminal penalties.
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the following recommendations:
to the commencement of a proceeding before the Board. We offer
either of the agencies or of employees with legitimate grievances.
S. 1035 does not even provide a statute of limitations with respect
1. The proposed criminal penalties-should be deleted.
2. The employee or applicant should be required first to
seek. adjustment of a complaint within his own agency. If
such attempted adjustment is unsuccessful, the employee.
or applicant should be limited in seeking redress of his
grievance to one method; or, in the alternative, should
be required to choose between Board review and review
under agency grievance procedures (comparable to the pro-
cedures offered to adverse action appellants by many
- agencies). A time limit within which actions must be
filed-with the Board should be spelled out in the Act,
.either in terms. of a specified time limit or in terms of
the time limit provided under agency grievance procedures.
3. Judicial review should be permitted only after final
Board or agency decision, under standards normally
accorded to review of such decisions. Section 5 of the
bill should therefore be deleted.
4. Participation by an employee organization in any
proceeding should be limited to appearance as repre
sentative of the aggrieved individual. An organiza-
tion should not be permitted to file a complaint on
behalf of an individual who does not feel strongly
enough about the matter to file one himself.
5. If a Board is set up, we also recommend that the
? remedies which it can provide be limited to a cease and
-desist order,. and methods of conference, conciliation,
and persuasion, as provided by 55 6(a)(1) and (2). The
disciplinary remedies provided by 5,6(a)(3) are appro-
priate for exercise only by an employing..agency. More-
over, the powers provided to. the Board may be
inconsistent with appeal rights which employees now have
under.terms.of the,Veterans' Preference Act-and other.
We believe that this situation would allow an employee or an
employee organization to use the Act or the Board as a tool for
obstructionism,,which we do not believe to be in the beat interests
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statutes and equivalent agency regulations. Thus, there is
no requirement concerning minimum notice afforded a person
accused--of violating the Act, or that the Board grant an oral
hearing. See Section 6(h). Me recommend that the Board be
empowered to require an.agency to take appropriate disci-
plinary action against an employee found by the Board to have
violated the Act, but that disciplinary powers against indi-
vidual employees be reserved to the agencies themselves and
not be granted to the Board..
.III. Other matters.
1. Subsections 1(c), and l (l). Our comments on the comparable
.sections of S.. 3779 ($?.l(d), and 1(k), respectively) are
equally applicable to.S. 1035. ?For.the convenience of the
Committee,-we respectfully repeat them in the following para-
graphs, identifying the subsections as renumbered.
l(c). This subsection may be construed to apply to such
activities as charity campaigns', blood donor campaigns,
and bond drives. We note that it is not limited in scope,
as is subsection 1(i), to allow activities which doubtless
all would approve.. ..
? 1(1)-. Under the literal language of this subsection, it
.would.appear that the bill would operate to restrict a
supervisor's authority to inquire into the performance of
his subordinates, and thus significantly impede the conduct
of the business of agencies. Grievance and appeal proce-
dures are of course available to Federal employees. The
Commission's regulations provide that within the scope of
such proceedings an employee may be represented by counsel
or other representative, and we would have no objection to
appropriate amendment of the language of the bill to limit
its operation accordingly. We should point out that,
under the language of this subsection, the conduct of
legitimate informal investigations of the activities of
Government personnel, sometimes conducted under conditions
of confidence, might be impeded. We would have no objec
tion to a provision that an employee must be permitted,
at his request, to have legal counsel'of his own choice
present when he is questioned in such an investigation,
but we do not believe that laymen would be qualified to
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protect his rights adequately or that his representation
by laymen in. an informal investigation would be adequate
to protect the employee's interests. We believe that .
our position is consistent with even a very liberal inter-
pretation of the doctrine of Miranda v. Arizona, 384 U.S. 436
(1966).
2. Subsections 1(1) and l(lc). Subsection 1(j) makes it unlaw-
ful to require or request an employee to disclose his finan-
cial affairs (except for employees having authority to make
a final determination on tax or other liability to the United
States, or on claims which require expenditure of moneys of
the United States). Subsection 1(k) limits the disclosures
permitted by subsection 1(j) to "specific items tending to
indicate a conflict of interest in respect to the perform-
ance of . . . official duties . . . ." Subsection 1(j) is
substantially similar to subsection 1(j) of S. 3779,.whereas.
subsection 1(k) of S. 1035 is a new provision.
Subsection 1(j), by'its exception proviso, recognizes the
necessity or. desirability of requiring some employees to
disclose certain of their assets and liabilities, but the
proviso applies to no one other'than employees who have
authority to make a final determination on tax or other
liability to the United States or on claims which require
expenditure of moneys of the United States. While we agree
that the disclosure requirement calls for care in its appli-
cation, it is our opinion that the disclosure proviso in
subsection 1(j) is too inflexibly and narrowly drawn in that
it may not cover persons occupying positions of greater
sensitivity from a conflict-of-interest standpoint than those
-
encompassed by the proviso. We believe that a proper se4.ec
tion of employees required to file financial interest state-
ments requires a detailed knowledge of employee functions
and responsibilities and the relationship thereof to possible
conflicting private interests. For this reason, we urge that
any legislation on this subject should be sufficiently broad
to permit the exercise of some:agency discretion.
We believe that the prohibitions of subsection 1(j) may also
have implications for our-security program; we refer to our
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,comments on subsection 1(f) for a -discussion of this subject*
and responsibilities of the employees concerned..,
a conflict-of-interest standpoint in the light of the duties
items, an agency be permitted to require reporting of such
financial information as it determines to be relevant from
lotions. In line with our consents above, however, we sug-
gest that'instead of the quoted limitation on reportable
Subsection 1(k) limits the disclosures allowed under the sub=
section 1(j) proviso to those specific items "tending to indi-
cate a conflict of interest". The type of information which
would fall outside the proviso's scope is unclear to us.
Assuming that this provision is intended to exclude from the
reporting requirements such items as bank accounts, credit
union shares, and debts for current and ordinary household
and living expenses,,it is'consistent with our current regu-
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