S. 1035

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100020009-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 29
• Document Creation Date: December 16, 2016
• Document Release Date: March 1, 2005
• Sequence Number: 9
• Publication Date: June 18, 1968
• Content Type: MFR

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18 June 1968
MEMORANDUM FOR THE RECORD
1. 1 attended a hearing of the House Subcommittee on Manpower
and Civil Service on S. 1035 at which Carl W. Clewlow, Deputy Assistant
Secretary of Defense, and Frank Bartimo, Assistant General Counsel for
Manpower, Office of Secretary of Defense, testified. Subcommittee
members present were: Representatives David N. Henderson (D., N.C.),
H. R. Gross (R., Iowa), James T. Broyhill (R., N.C.), and Lee H.
Hamilton (D., Ind.). I obtained a copy of Mr. Clewlow's prepared
testimony which he followed closely throughout his presentation.
2. Following the prepared testimony Chairman Henderson asked
to what extent psychological testing is used in the Department of Defense.
Mr. Bartimo stated that it was used only in cases involving sensitive
security matters and then only as an aid. The same question was asked
with regard to the polygraph and essentially the same answer was given.
3. Henderson also asked what is the present policy on financial
disclosure. Bartimo replied that this is required only where there is
a potential for conflict of interest.
4. Representative Gross also raised questions regarding financial
disclosure and indicated that he is still somewhat angry over the refusal
of the Department of Defense to provide information on the TFX contract.
Gross' attitude toward both S. 1035 and H. R. 17760 could not be judged
from the nature of his questions.
5. Representative Hamilton asked if the national security would
be seriously jeopardized if S. 1035 should become law, to which Bartimo
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Q
STATEMENT OF CARL W. CLEWLOW 41o7~~
DEPUTY ASSISTANT SECRETARY OF DEFENSE
(MANPOWER AND RESERVE AFFAIRS)
BEFORE THE SUBCOMMITTEE ON MANPOWER AND CIVIL
SERVICE OF THE COMMITTEE ON POST OFFICE
AND CIVIL SERVICE OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
ON
S. 1035, an Act "To 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."
H. R. 17760, a Bill "To recognize the rights and obliga-
tions of the civilian employees of the executive branch of
the Government of the United States, and for other purposes.
June 18, 1968
Mr. Chairman:
I am Carl W. Clewlow, Deputy Assistant Secretary of Defense
(Manpower and Reserve Affairs). I welcome the opportunity to appear
before this Committee to present for your consideration the views of
the Department of Defense on S. 1035 and H. R. 17760.
The Department's interest in these bills is based on their impact
on personnel administration and on the national security activities of
the Department. As the Civil Service Commission Chairman stated
the adverse effect S. 1035 would have on personnel administration,
I shall address the major portion of my remarks to matters of special
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concern to the Department of Defense. To summarize our position --
The Department opposes the enactment of S. 1035.
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 Department
which should be included in the exemptions extended to the FBI,
the CIA and the NSA.
(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 comments to the
Department as soon as possible. We could have specific comments
to you within a few days thereafter.
Defense Department's Position on S. 1035.
In the 90th Congress, the Department filed a report with the Senate
Subcommittee on Constitutional Rights in which it concurred in the
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opposition report of the Civil Service Commission. In addition, it
noted that the bill did not take into account national security considera-
tions 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 number of provisions
which would hamper the proper execution of executive responsibilities.
In order to be as brief as possible, I will summarize the principal
objections of the Department:
(1) The bills fails to distinguish between eligibility for
government employment in general, and the special respon-
sibilities of a national security nature entrusted to the Depart-
ment. The business of inhibiting espionage by careful,
selection of persons to be given access to sensitive informa-
tion is extremely difficult at best. Without adequate informa-
tion concerning the background, affiliations, personal
relationships, mores, and financial and general integrity
of persons considered for such access, it may well be
impossible. It is essential that, as the sensitivity of a
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position increases, the Department must be permitted to
broaden the scope of its inquiries.
(2) The bill fails to provide the Secretary of Defense
with authority to exempt from its provisions certain sensitive
activities of the Department, despite the fact that those
activities involve access to classified defense information
of equal or greater import to national security than positions
in the agencies cited in section 6. The exemption authority
granted to the CIA, NSA, and FBI is based on a recognition
of the sensitivity of their missions and, for the same reasons,
should be extended to the Department of Defense when the
Secretary determines the national security so requires.
(3) The provisions permitting civil actions to be filed
in the United States District Court without claiming damages
or exhausting administrative remedies are disruptive to the
Department's grievance procedures and to employee-management
relationships. To permit disregard of the jurisdictional pre-
requisites to judicial review would most certainly encourage the
filing of spurious suits and open the door to broad and possibly
organized harassment of executive actions.
(4) The provision authorizing the Board on Employees'
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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 E. 0. 10988 would be seriously
disrupted. Under section 4, an employee organization could join
in a court suit at the employee's request, even though the organiza-
tion 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 Lit 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 Committee, 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 Communist Party meetings and that
"outside parties or organizations" are instructing him on
how to sabotage government facilities. Under section 1(b)
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an investigator's questions in these areas would be unlawful.
They constitute "notice" of his attendance at a non-government
meeting on a subject other than the performance of 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 on the Federal service.
Under section 1(d) it cannot require the individual to make
a report, since his indebtedness does not relate to his assigned
official duties. It would also be barred under section 1(i)
since most employees, with certain limited exceptions, may
not be asked about their financial liabilities.
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 critically
sensitive duties involving information of considerable value
to foreign intelligence. Under section 1(i) the employee may
not be required, or even requested, to disclose the amount of
or sources of his income, property or other assets.
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In addition, I offer the Department's report on S. 1035 of June 18,
1968 -- the report includes a ten page sectional analysis, and
proposed amendatory language.
S. 1035 Discriminatory Against Military Supervisors.
The Department concurs in the concept that, if S. 1035 is
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 supervisors 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 discriminatory, if not constitutionally questionable.
Actually, an employee is not without remedy if he has cause to
believe that his military superior is commiting 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.
Sensitive Activities of the Defense Department Which Should be Exempted.
As noted in my earlier remarks, we believe that the same type
of exemptions should be extended to the other agencies of the Department
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concerned. with. intelligence and national security matters as are
ended to the FBI, CIA and NSA. For example, the Department
has a number of positions requiring access to nuclear weapons and
nuclear weapons systems, chemical and biological warfare data, and
operational war plans. In addition, it has a number of intelligence
elements which deal with intelligence sources which are as sensitive
as those in the CIA, FBI and NSA. Obviously, CIA, NSA and FBI
information must be disseminated to selected personnel throughout
the Department of Defense. Consequently, any added measure of
personnel security by these agencies is wasted unless it is matched
within the Defense Department. We are concerned that the Secretary
of Defense be in a position to assure consistency of Defense policy in
this overall area and to apply a like policy to all elements of the
Department of Defense engaged in similar activities.
It is my understanding that the Committee will receive testimony
from National Security Agency representatives in Executive Session
later today. At that time, classified activities 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 need to ensure the highest standards of trust-
worthiness and integrity for those who man such posts.
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Defense Department's Position on H. R. 17760.
Turning to H. R. 17760, 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 the Act
where it belongs, in the employing agency and the Civil 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 this respect may need
clarification in order to provide meaningful standards for both employer
and employee. For example, the bill declares that an employee has
"the right to be protected against any unwarranted invasion of personal
privacy." It also enjoins supervisors to respect employee rights
"consistent with law and with the responsibilities of employment in the
public service."
A provision that is not included among the enumerated "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.
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C onclu. lion.
As the biggest single employer within the Executive Branch,
the Department is mindful of its responsibilities to insure a proper
balance between individual rights and management objectives. The
basic objective of S. 1035 is laudable -- that respect for human dignity
must be an essential ingredient of the Federal Government's employment
policies -- that its employees do not surrender their rights to respect
from their employer. But S. 1035 has not fully considered the Govern-
ment's interest and has created a system of remedies which are
cumbersome, contrary to well accepted tenets of Government
administration, and in some instances prejudicial to the Department's
mis sion.
In closing, may I express appreciation to the Chairman for
his efforts to bring forth a bill that will give proper balance and
recognition to the rights and responsibilities of both management and
its employees.
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DEPARTMENT OF THE AIR FORCE
WASHINGTON 20330
June 5, 1967
Dear o Chairman:
Reference is made to your request to the Secretary of
Defense for the views of the Department of Defense with
respect to S. 1035, 90th Congress, a bill "To protect the
civilian employees of ze execuc e branch of the United
States Government in the enjoyment of their constitutional
rights and to prevent unwarranted governmental invasions of
their privacy.11 The Secretary of Defense has delegated to
the Department of the Air Force the responsibility for ex-
pressing the views of the Department of Defense.
The purpose of S. 1035 is to make it unlawful to require
a civilian employee, or person seeking employment in the
executive branch of the United States Government, to disclose
his race, religion, or national origin, or the race, religion,
or national origin of any of his forebears; attend meetings
or to participate in activities unrelated to the performance
of his official duties; report outside activities or employ-
ment unless there is reason to believe that these activities
conflict with his official duties; submit to questioning
about his religion, personal relationships or sexual attitudes
through interviews, psychological tests or polygraphs; support
political candidates, or attend political meetings; buy bongs
or other obligations issued by the United States; disclose
any items of his or his family's property or income other than
specific items tending to indicate a conflict of interest with
respect to the performance of any of his official duties; or
submit, when he is under investigation for misconduct, to
interrogation which could lead to disciplinary action without
tc.e presence of requested counsel.
Section 2 of the bill makes it unlawful for any officer
of the Civil Service Commission to violate or attempt to
violate any of the provisions of the Act.
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Section 3 of the bill makes it unlawful for any commis-
sioned officer of the armed forces to perform any of the
acts set forth in section 1 of the Act.
Section 4 of the bill provides a criminal penalty of a
$300 fine or 30 days imprisonment for violations of the Act.
Section 5 gives United States District Courts jurisdiction
to hear cases ?inder the Act and to provide injunctive relief.
Section 6 establishes a Board on Employees Rights to
receive and investigate complaints on behalf of persons
aggrieved by a violation or threat of violation of the Act.
Section 7 excludes the FBI from operation of the Act.
S. 1035 is a revised version of S. 3779, 89th Congress.
In its report of December 14, 1966, to the Chairman of the
Senate Committee on the Judiciary, the Department of Defense
not only concurred in the opposition report of the Civil Ser-
vice Commission on that bill, but also particularized certain
other objections to the proposed legislation from the stand-
point of national security.
The Department of the Air Force,-on behalf of the Depart-
ment of Defense, is opposed to the enactment of S. 1035 in
its present form, and endorses the Civil Service Commission
report of the proposed bill - particularly the proposal to
eliminate sections 4, 5, and 6 of the bill.
In addition, the Department of Defense is especially
troubled by those portions of subsection 1(a), 1(d), 1(f),
1(g), or 1(j), which are incompatible with the Department's
obligations to screen and investigate personnel employed in
or applying for sensitive and critical sensitive positions.
The enactment of these subsections and their applicability
to this Department would make it extremely difficult to obtain
the background information which must be considered before an
individual can be authorized to handle classified defense
information. More specifically:
(1) Section 1(a) would prohibit an officer from
requiring applicant or an employee to disclose the national
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origin of himself or of close relatives. Such data obviously
is relevant in determining the extent to which an applicant
or employee could be subject to coercion by a foreign country
seeking his cooperation.
(2) Sections 1(b) and 1(c) would prohibit the
Department from requiring employees to attend important security
lectures necessary to alert them to the dangers and techniques
of espionage or to the lapses leading to inadvertent, unauthor-
ized disclosure of classified information.
(3) Section 1(d) would prevent the Department from
requiring employees to report on contacts with foreign nationals
or other private activities of possible security significance.
(4) The restrictions in section 1(f) on the use of
psychological tests and assessments would greatly hamper the
Department in determining the suitability of employees for
positions involving a high degree of personal responsibility
and often a high degree of psychological pressure or nervous
strain.
(5) Section 1(g) would prohibit the use of questions
in a polygraph interview which may have counterintelligence
significance in a particular instance.
(6) The restriction of section 1(j) on requiring
or requesting the disclosure of financial information would
also create a serious problem because of the relevance of
such information in evaluating an individual's personal
financial stability and susceptibility to bribes or other
financial pressure to force the revelation of classified
information.
Taken together these restrictions of section 1 would
make almost impassible a balanced evaluation of whether grant-
ing a security clearance to an individual is clearly consistent
with the national interest. Therefore, for national security
reasons this Department asks that the exemption extended to
the Federal Bureau of Investigation in section 7 be expanded
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to include all sensitive positions as defined in Cole v.
Young, 351 U.S. 354 (1956). If this is considered too broad
to be acceptable, an exemption from the restrictions of
section 1 should at least be extended to the National Security
Agency and to such other critical sensitive positions as may
be designated by the Secretary of Defense. At your request,
we will be happy to elaborate on the relevance of such infor-
mation to determining suitability for employment or security
clearance.
In addition to security considerations, section 1(i) pro-
hibits coercion in the sale of bonds or other obligations or
security issued by the United States or any of its agencies.
The Department of Defense shares the desire to eliminate any
practice which smacks of coercion, compulsion, or the threat
of reprisal to induce the participation of employees in the
promotion of bond sales. Nevertheless, we strongly oppose
the imposition of criminal penalties in the manner contemplated
in this bill. Good personnel administration would be better
served through traditional techniques of control rather than
through the threat of -r.iminal sanctions.
The Department of Defense concurs in the concept that,
if the bill is enacted, it should apply to military officers
who supervise civilians in the same measure that it applies
to civilian supervisors. However, unless sections 4, 5, and 6
are deleted, as recommended by the Civil Service Commission
and concurred in by this Department, a conflict would develop
between section 6(1) and section 4 with respect to punishment
of offending military supervisors. Section 6(1) compels
action against military supervisors under the Uniform Code of
Military Justice. Because of the principle of double jeopardy,
the court martial action would effectively preclude civil trial
pursuant to section 4. This resulting discrimination, whether
considered favorable or unfavorable to the military officer
does not appear to be in keeping with the. idea that military
and civilian supervisors should be treated alike. Additionally,
that portion of section 6(1) providing for reference to "any
person authorized to sign charges" is not meaningful since
the Uniform Code of Military Justice, Article 30 (10 U.S.C. 830),
grants this authority to all members of the armed forces.
Accordingly, it is recommended that this provision be deleted.
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This report has been coordinated within the Department
of Defense in accordance with procedures prescribed by the
Secretary of Defense.
The Bureau of the Budget advises that, from the stand-
point of?the Administration's program,.there is no objection
to the presentation of this report for the consideration of
the Committee.
Sincerely,
Honorable James 0. Eastland
Chairman, Committee on the
Judiciary
United States Senate
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GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
18 JUN 1968
Honorable Thaddeus :. Dulski
Chairman, Committee on Post Office
And Civil Service
House of Representatives
Washington, D. C. 20515
Dear Mr. Chairman
It is requested that the following views of the Department of Defense
be included in the Co nnittse's consideration of S. 1035, a bill "To
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 invasion of their privacy. "
The purpose of S. 1035 is to make it unlawful to require or request a
civilian employee, or person seeking employment in the executive
branch of the United States Oevernment, to disclose his race, religion,
or national origin, or the race. religion, or national origin of any of his
forebears; attend meetings or to participate in activities unrelated to
the performance of his official duties; report outside activities or
employment unless there is reason to believe that these activities
conflict with his official duties; submit to questioning about his religion.
personal relationships or sexual attitudes through interviews, psy-
chological tests or polygraphs. support political candidates, or attend
political meetings; buy bonds or other obligations issued by the United
States; disclose any items of his or his family's property or income
other than specific items tending to indicate a conflict of interest with
respect to the performance of any of his official duties; or submit, when
he is under investigation for misconduct, to interrogation which could
lead to disciplinary action without the presence of requested counsel.
To provide enforcement powers. the bill vests jurisdiction in the United
States District Courts to hear eases under the Act and to provide in-
junctive relief. It also provides for a board on Employees' Rights to
investigate and hear coUaplainte surging violation or threatened viola-
tion of the Act. Limited exceptions to certain of the bill's provisions
are extended to the Central Intelligence Agency (CIA). the National
Sscurity Agency (NSA). and the Federal bureau of investigation (Tan.
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The Department of Defense is opposed to the enactment of S. 1035 in
its present form. Set forth immediately below is a summary of the
principal objections.
1. The bill fails to distinguish between eligibility for
government employment as such, and the special responsibilities
of a national security nature entrusted to certain Departmental
personnel. The business of inhibiting espionage by careful
selection 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 considered
for such access, it may well be impossible. The exemption of
inquiries made for the purpose of determining eligibility for
sensitive positions (rather than simply for general employment)
would seem the minimum necessary to preserve the integrity
of the existing security programs.
2. The bill fails to provide the Secretary of Defense
with authority to exempt certain sensitive activities of the
Department from its provisions, despite the fact that those
activities involve access to classified defense information of
equal or greater import to national security than positions in
the agencies cited in section 6. The exemption authority granted
to the CIA.. NSA and FBI is based on a recognition of the sensi-
tivity of their missions and, for the same reasons, should be
extended to the Department of Defense when the Secretary
determines the national security so requires.
3. The provisions permitting civil actions to be filed
in the United States District Court without claiming damages
or exhausting administrative remedies are disruptive to the
Department's grievance procedures and to employee-management
relationships. To permit disregard of the jurisdictional pre-
requisites to judicial review would most certainly encourage the
filing of spurious suits and open the door to broad and possibly
organized harassment of executive actions.
4. The provision authorizing the Board on Employees'
Rights to reprimand, suspend or remove civilian violators
is in derogation of the responsibilities of the employing agency
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and of the Civil service Commission. Furthermore, the
Board's authority to initiate court martial proceedings
against offending military supervisors is discriminatory.
sine* penalties involving fiats or imprisonment may not
be imposed on civilian supervisors who violate the terms
of the Act.
5. The effectiveness of the employee organization
system of representation established by E. 0. 10988 would
be seriously disrupted. Under section 4. an employee
organization could join in a court suit at the employee's re-
quest, even though the organization does not represent the
employees of that Defense activity. Furthermore, under
section 5 an employee organization could intervene in pro-
ceedings 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.
A more complete exposition of these points is set forth in the attached
"Section by Section Analysis." The attachment includes recommended
language changes in the bill to meet the objections summarized above.
The Bureau of the budget advises that from the standpoint of the
Administration's program there is no objection to the presentation
of this report for the consideration of the Committee.
Since rely.
'Oigaed) IL
Liederlehner
L. Niederlehner
Acting General Counsel
Esslesure
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SECTION BY SECTION ANALYSIS
Section 1(a) would prohibit, with certain exceptions, inquiries about
an employee's race, religion or national origin or that of his fore-
bears. It is recommended that the second proviso beginning on page 2,
line 8 be amended to read, in part: "Provided further, That nothing
contained in this subsection shall be construed to prohibit inquiring
concerning the national origin of any employee or of any person seeking
employment, or the national origin of any person connected with either
by blood or marriage, when such inquiry is deemed necessary or
advisable***." .(emphasis added) The need for broadening the category
of persons exempted is especially important where an applicant or an
employee is to be entrusted with highly sensitive information, or is to
be assigned to overseas areas where coercion might be brought against
him or his close relatives.
Section 1(b), in protecting an employee against compulsory attendance
at meetings, forbids taking notice of an employee's participation in
subversive activities or with other groups whose interests might be
hostile to United States interests. Such a restriction is strongly
opposed by the Department, and is contrary to well accepted security
practices. Accordingly, it is recommended that a proviso be added to
section 1(b) reading as follows: "Provided further, That nothing in
this subsection shall be construed to prohibit taking notice of the
participation of an employee in the activities of organizations, groups,
and movements deemed relevant to the national security. " This section
is also objectionable because it appears to bar taking notice that an
employee failed to attend security indoctrination lectures. In some
instances, these counseling sessions would not relate specifically to
"the performance of his official duties. " For example, the sessions
may relate exclusively to an explanation of foreign intelligence opera-
tions, and how employees holding extremely sensitive positions may
become targets of foreign espionage. Obviously, efforts to secure
attendance at such sessions should not be prejudiced. Accordingly,
section 1(b)' should be further revised to meet this consideration.
Section 1(c) would prohibit requiring an employee to participate in
activities unrelated to his official duties or to the development of
work skills. It is assumed that the term "official duties" is to be
broadly construed and that it would not bar issuing instructions and
guidance to persons assigned to highly sensitive duties. For example,
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such employees may be required to report security violations attend
security indoctrination lectures, and report definite indications of
Mental instability and other unusual behavior on the part of other
similarly assigned employees. With the understanding that these pre-
cautionary measures to safeguard highly sensitive information are
part of the "official duties" of every such employee, the Department
of Defense interposes no objection to this section.
Section 1(d) would prohibit requiring or requesting an employee to
make any report concerning his activities or undertakings unless they
relate to the performance of his official duties, the development of his
work skills, or there is reason to believe that he is engaged in outside
activities or employment in conflict with his official duties. The
Department recognizes that this provision was designed to eliminate
certain improper reporting practices, and in this respect we support
the principle behind this provision. However, there are some instances
in which there is a good and sufficient cause for requiring such reports.
For example, it may be necessary to determine whether an employee
is engaged in political activities proscribed by the Hatch Act. Obviously,
the best way to ascertain the facts is to ask the employee for an expiana-
tione-It is also important that an employee assigned to sensitive duties
report any approach by known intelligence agents, his planned travel to
communist-controlled countries, or his attendance at such meetings
where representatives of such countries will be in attendance. To make
provisions for these special circumstances, it is recommended that a
proviso be added at the end of page 3, line 25. reading substantially
as follows: "Provided. however, That nothing contained in this sub-
section shall be construed to prohibit requesting a report when necessary
for law enforcement purposes or when the employee is assigned to
activities or undertakings related to the national security."
motion
Section I(e) would generally prohibit interrogation, examination
elicit
or psychological tests designed to
an individual's personal relationship with any relatives, his
religious beliefs or practices, or his attitude or conduct with
respect to sexual matters. When it comes to determining the
suitability of employees for sensitive positions involving a
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high degree of personal responsibility and often a high degree of
psychological pressure or nervous strain, the results of such
examinations and psychological tests may produce an important
insight. Examples of such positions are those requiring access to
nuclear weapons and nuclear weapon systems, chemical and biological
warfare information, and operational war plans data. Because of the
grave responsibilities, there is a need to evaluate fully the suitability
and dependability of each prospective employee to determine the
existence of any deep-seated emotional problems involving his family,
sex attitudes and conduct. While section 6 permits some limited
psychological testing, it applies only to a very limited number of
Department of Defense employees (those employed in the National
Security Agency) and then only under very restrictive circumstances.
Furthermore, even this exception is limited to polygraph examinations
and psychological tests, and does not permit an employee to be inter-
viewed about derogatory information that has come to the attention of
the Department. Oftentimes, these interviews would be less embarrassing
than the more formalized polygraph or psychological tests . Employees
occupying "critical-sensitive positions" mus t, of necessity, meet higher
standards, and consequently must be examined on matters which would
not be considered in determining eligibility for less sensitive positions
or non-sensitive pos itions . By "critical-sensitive" pos itions, we mean
any position the principle duties of which include: (a) access to TOP
SECRET information; (b) development or approval of war plans , plans
or particulars of future or major or special operations of war, or critical
and extremely important items of war; (c) development or approval of
plans, policies or programs which affect the overall operations of a
department or agency, i. e. , policy-making or policy determining
positions; (d) investigative duties, the issuance of personnel security
clearances, or duty on personnel security boards; or (e) fiduciary,
public contact, or other duties demanding the highest degree of public
trust. Accordingly, a proviso should be added that would permit the
Department to conduct such interrogations, examinations or psychological
testing where the position is designated "critical-sensitive. " While the
Department believes this authority is essential to effective security
operations, it would exercise it only where the circumstances warrant
it, and then only under properly administered controls.
Section 1(f) would prohibit requiring or requesting an applicant or an
employee to take a polygraph test regarding his personal relationships
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with his relatives, his religious beliefs, or his attitude or conduct
with respect to sexual matters. The National Security Agency would
be exempted, but only under the restrictive conditions imposed by
section 6. Under Department of Defense Directive 5210.48, July 13,
1965, polygraph examinations may be conducted only with the prior
written consent of the individual, and if he refuses, no adverse action
may be taken by the Department. It is believed that this policy should
be continued, and that polygraph tests should be permitted in specific
security cases which cannot otherwise be resolved, provided the
individual voluntarily consents. Accordingly, it is recommended that
a clause be added beginning on line 10, page 5, reading as follows:
"unless the employee voluntarily consents to such a test in order to
resolve specific questions not otherwise resolvable relating to his
suitability for employment or suitability for assignment to activities
or undertakings related to the national security. "
Section 1(g) would prohibit coercion of any employee to contribute
to the nomination or election of a person or groups of persons to
public office. While the Department supports the objectives of this
section, it is noted that the Commission on Political Activities of
Government Personnel has submitted sweeping recommendations for
revision of the Hatch Act. The Committee may wish to defer considera-
tion of this provision in favor of the broader study.
Section 1(h) would bar coercion in bond drives and fund-raising
campaigns, and in that sense reflects the firmly established policy of
the Executive Branch and of the Department of Defense. When allega-
tions of coercion have come to the Department's attention -- and they
have been relatively few -- generally they could not be substantiated. In
the few instances in which the allegations were verified, it was due for
the most part, to errors of judgment, excessive zeal or misunderstood
communications, rather than any criminal intent to compel or coerce
others. Nevertheless, section 1(h), when taken in conjunction with
sections 3, 4 and 5(1) would make such acts unlawful, and in the case
of a military offender, a basis for court martial action. The Depart-
ment of Defense does not consider criminal, sanctions in the case of
military personnel, or the judicial sanctions contemplated in the bill
for civilian personnel, as either enlightened, effective, or appropriate
measures for dealing with such conduct. Administrative personnel
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action is eminently more suitable. We are convinced that creating a
specific new crime or establishing specific new judicial sanctions in
the context of demonstrably worthy programs -- the encouragement
of bond purchases and the support of charities -- is neither necessary
nor desirable. Furthermore, should a military officer deliberately
disregard administrative instructions, ample authority already exists
to charge him for failure "to obey any lawful general order or regula-
tion" under Article 92 of the Uniform Code of Military Justice
(10 U.S.C. 892). Consequently, the Department of Defense believes
that it already has sufficient authority to deal with this kind of
coercion complaint.
Section 1(i), by placing restrictions on requiring or requesting an
employee to disclose financial information, seriously handicaps the
Department's ability to evaluate an individual's personal financial
stability and susceptibility to bribes or other financial pressures.
This is especially important in cases in which the Department re-
ceives information that an employee holding an extremely sensitive
position is reported to be in serious financial straits. A number of
individuals have become involved in espionage against the United States
or have attempted to do so, solely because they were deeply in debt
and hoped to make a fast recovery by selling information to foreign
powers. Oftentimes sufficient financial information cannot be obtained
simply by checking credit agencies, creditors or other financial
institutions. In many instances, the employee must be interviewed
and a frank discussion held in order to find the basis for his financial
irresponsibility or unexplained affluence. Should the right to make
informal inquiries be denied, the Department may be required to initiate
disciplinary or removal actions on the basis of information which does
not include the employee's denial or explanation. Thus the prohibition
not only blunts the Department's investigative effort, but also may
operate to the detriment of the employee. Accordingly, it is recommended
that the following proviso be added on page 7, line 6: "Provided further,
That this subsection shall not apply to any employee whose financial
responsibility or unexplained affluence has come into question in regard
to determining his suitability for assignment to activities or under-
takings related to the national security." With the adoption of this
proviso, section 6, which contains a limited exception for the National
Security Agency Director, should be modified by deleting the words,
"or to provide a personal financial statement" appearing on lines 12
and 13 of page 18.
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Section 1(j) prohibits requiring an employee, excluded from the
protections afforded by section 1(i), to disclose his finances or
those of his family except specific items tending to indicate a con-
flict of interest. It is not clear whether the employee may elect
to disclose financial data in a conflict of interest situation, or
whether the Department may conclude that a possible conflict
exists and that the employee should therefore reveal. his financial
condition. Under 18 U.S.C. 208 an employee is required to make
a full disclosure of his financial interests if he participates per-
sonally in his Governmental capacity in any matter in which he, his
family or business or associate has a financial interest. Under
that statute his failure to make a positive disclosure subjects him to
possible criminal prosecution. It is believed that this section should
be reconsidered, since its provisions are so obscure as to make
impossible a precise determination as to its effect on section 1(i) and
on the exceptions permitted the National Security Agency by section 6.
Section 1(k) would prohibit interrogation of an employee "under
investigation for misconduct" without the presence of counsel, or
other person, if he so requests. The Department recommends that
the words "or other person of his choice" be deleted from lines 8
and 9 of page 8. Since this section is designed to protect an employee's
legal rights, it is questionable whether the presence of non-legal
counsel would assure that protection. Further, this outside party
might also be directly or indirectly involved in the investigation, in
which event his presence would not be in order.
It is assumed that section 1(k), by providing for the right of counsel
to be present, does not carry with it the obligation of the government
to furnish counsel. In some situations, the Department has made
available a government lawyer to insure that the employee has a proper
understanding of his rights and obligations. But as a general rule,
the Department does not have the capability to furnish a legal adviser
in all possible situations covered by section 1(k).
It is also assumed that preliminary questioning to establish whether
or not there has been misconduct in the performance of official duties
would not be considered within the coverage of section 1(k). In this
respect, the Department distinguishes this kind of questioning from
the formal questioning which would follow after preliminary inquiries
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have established the misconduct. To construe this section otherwise
would mean that a supervisor's ability to resolve day-to-day employment
incidents and to provide constructive guidance concerning an employee's
job performance would be replaced by time consuming and expensive
legal consultations.
Section 1(1) prohibits reprisals against an employee who refuses
to submit or comply with any requirement made unlawful by S. 1035,
or who avails himself of the remedies provided by the bill. Reprisals
would include discharge, discipline, demotion, denying promotion,
relocation, reassignment, or otherwise discriminating in the terms of
his employment. While the Department agrees that reprisals have no
place in personnel management programs, section 1(1) does raise some
practical operating problems particularly as it relates to the reassignment
of those holding extremely sensitive positions. For example, the Depart-
ment may receive reliable information that an employee occupying such
a position has been spending large sums of money far beyond his
normal income and that he has been seen in company with foreign
agents. Should he be questioned about his unexplained affluence, and
should he refuse to answer, the Department might elect to reassign
him, pending completion of the investigation. Thereupon, the employee
could charge that this action constituted a reprisal within the meaning
of section 1(1), when, in fact, the reassignment was but a reasonable
and necessary precautionary measure. Under these circumstances,
it is believed that this section should be modified by deleting the words
"relocate, reassign" from line 24, page 7. The Department should not
be foreclosed from taking action of this nature to protect the national
security under pain of being threatened with a law suit.
Section 2 makes it unlawful for Civil Service employees to violate
or attempt to violate any of the provisions of section 1. The Depart-
ment defers to the views of the Commission on this section.
Section 3 prohibits a military supervisor from requiring or requesting
a civilian employee to perform any act or submit to any requirements
made unlawful by section 1. The Department agrees that the bill
should apply to military officers supervising civilians in the same
manner that it applies to civilian supervisors. But section 3, when
taken in conjunction with section 5(1), discriminates against military
officers by singling them out from all other members of a class and
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making them the only supervisors who are subject to criminal penalties
for misconduct. Because of this, these provisions appear constitutionally
questionable and should not be enacted. Actually, an employee is not
without remedy if he has cause to believe that his military superior is
commiting 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. Additionally, from a
technical drafting standpoint, section 3 should be modified to read, in part:
"*** under his authority to act with regard to any civilian employee of the
executive branch of the United States Government under his authority or
subject to his supervision in a manner made unlawful by section 1 of this
Act." Section 1 prohibitions are not all cast in terms of "request and
require. "
Section 4 provides that an employee may sue to enjoin a violation or
threatened violation of sections 1, 2 or 3, or obtain redress therefrom
without alleging damages or exhausting any administrative remedy. Also,
with the employee's consent, any employee organization may file the
suit or intervene. The Department is opposed to section 4 for a number of
reasons. It would actively encourage the avoidance of agency procedures
and permit the filing of frivolous suits. It would overburden the courts
inasmuch as evidentiary hearings would be required in many cases. It
would undermine grievance and adverse action procedures under the
mistaken assumption that present employee grievances are not fairly
considered. (Contrary to this assumption, the grievance figures in one
of the military departments shows that in FY 1967, 36. 8% of the grievances
were resolved in the employee's favor at the first level of consideration
and 66. 7% were resolved favorably at the second level.) It would create
an independent remedy for one group of grievances, whereas all other
grievances would continue to be processed through normal agency grievance
procedures. It would vest in employee organizations the right to bring
suit or intervene, with the employee's consent, even though the organiza-
tion has no identifiable interest with the activity with which the employee
is assigned, a concept contrary to well accepted principles of employee-
management relationships. To meet these objections, it is recommended
that the phrase reading, "without regard to whether the aggrieved party
shall have exhausted any administrative remedies that may be provided
by law," appearing on lines 22 - 24 of page 11, be changed to read, "when
the aggrieved party shall have exhausted any administrative remedies that
may be provided by law. " In addition, it is recommended that the last
two sentences of section 4 appearing on lines 5 - 16 of page 12, be deleted.
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Section 5 would create a Board on Employees' Rights to investigate
complaints of violations or threatened violations and to conduct hearings.
The Board would be empowered to reprimand, suspend, or remove
civilian officials violating the act. Military violator cases would be
referred to the military departments for prosecution under the Uniform
Code of Military Justice. Federal employee organizations could inter-
vene in the proceedings if they are "in any degree" concerned with
employment of the category in which the alleged violation occurred. The
Department is opposed to the creation of an independent Board, and to
the provision calling for the court-martial of military supervisors.
Under this section, agency grievance procedures could be circumvented
by permitting an employee to file a complaint directly with the Board.
It would impinge upon the authority of the appointing agency by vesting
disciplinary action in an outside agency instead of the appointing agency
or the Civil Service Commission. As to the Board's action against military
violators, it would create a number of problems. The investigation,
hearing and report of the Board would have little direct effect on any court-
martial proceedings since these actions would not appear to qualify as a
pretrial investigation under Article 32 of the Uniform Code of Military
Justice. But, the Board's report recommending court-martial proceedings
would raise the spectre of "command influence" since the Board's report
would be submitted to the President, the Congress, and the general
courts-martial convening authority. It would also violate employee privacy
by permitting intervention by employee organizations without regard to
the wishes of the employee, and would negate the employee-management
system established by Executive Order 10988.
If the Congress decides section 5 should be retained over the objections
of the Department, it is recommended that the first sentence of section
5(h) beginning on page 14 be deleted and a new sentence substituted
reading substantially as follows: "The Board shall not entertain a
complaint from or on behalf of an aggrieved party, unless the remedy
sought by him shall have been denied in whole or in part by a final
agency decision." Further, in order to provide for the observance of
the procedural protections afforded civilian violators by title 5, United
States Code, it is recommended that section 5(k)(3)(A) be deleted and
the following substituted: "in the case of a civilian officer or employee
of the United States, other than any officer appointed by the President,
by and with the advice and consent of the Senate, who violates this act,
forward its decision to the agency for determination of the severity and
application of the penalty to be effected consonant with statutory
protections afforded by title 5 of the United States Code. "
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Section 6 would permit the CIA, NSA, and FBI to conduct polygraph
and psychological tests concerning an employee's personal family
relationships, religion, sexual conduct and financial affairs when a
specific determination is made that the protection of national security
so requires. (Inquiries would still be barred under section 1 if the
employee were simply interrogated about such matters without use of
polygraph or psychological tests.) If the added measures of protection
to national security are needed by the agencies cited, they are obviously
required by the intelligence elements within DoD which deal with sources
of equal sensitivity, and by other elements of the Department of Defense
charged with the planning and execution of strategic and tactical military
operations. In fact, many of the requirements upon which the operations
of CIA and NSA are based are developed by elements of the Department
of Defense. Als o, if the broader interests of national security are to
be served, it is necessary that information about and res ulting from the
sensitive activities of the CIA, NSA and FBI must be disseminated to
selected personnel throughout the Defense Department. This is now the
case. Therefore, to a considerable degree, any added measure of personnel
s ecurity by the three excepted agencies is wasted unles s it is matched
within the Defense Department. Accordingly, inasmuch as the NSA is
under the supervision of the Secretary of Defens e, it is recommended
that section 6 be amended to grant the exception provided for NSA in
section 6 to the Secretary of Defense or his designee for this purpose.
Such an amendment would enable the Secretary of Defense to assure
consistency of Defense policy in this overall area and to apply a like
policy to all elements of the Department of Defense engaged in similar
activities.
Section 7 provides that each department may establish its own grievance
procedures, but that these procedures shall not preclude a suit under
section 4 or a complaint to the Board on Employees' Rights under section 5.
The Department firmly believes that an employee should firs t seek relief
through his own department's grievance procedures, and that outside
review should be permitted only after completion of Departmental action.
Accordingly, the phrase, "but the existence of such procedure shall not
preclude any applicant or employee from pursuing the remedies es tablished
by this Act or any other remedies provided by law, " appearing on lines
22 - 25 of page 18 of the bill, should be deleted. To provide three alternative
means of resolution of this particular type of grievance -- one through the
traditional grievance s ystem, one through the newly created, but yet
administrative, Board on Employees' Rights, and one through immediate
access to the United States District Courts, increases the prospects of
divergent interpretations which will operate to the advantage of neither
the employee nor his supervisor.
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