DEPARTMENT OF JUSTICE SUBSTITUTE DRAFT LANGUAGE FOR OPM DRAFT BILL RESPECTING PROHIBITION OF PAYMENT OF ANNUITIES TO FEDERAL EMPLOYEES CONVICTED OF CERTAIN FELONIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000400570021-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 21, 2016
• Document Release Date: August 15, 2008
• Sequence Number: 21
• Publication Date: December 15, 1983
• Content Type: MEMO

Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
December 15, 1983
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer
Department of Defense
Department of Health and Human Services
Department of State
Central Intelligence Agency
SUBJECT: Department of Justice substitute draft language for
OPM draft bill respecting prohibition of payment of
annuities to Federal employees convicted of certain
felonies (see Legislative Referral Memorandum of
6/13/83).
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with OMB Circular A-19.
A response to this request for your views is needed no later than
January 13, 1984.
Questions should be referred to Frank white
(395-6156 ) or to Hilda Schreiber
the-legislative analyst in this office.
( 395-4650 ),
Naomi R. Sweeney for
Assistant Director for
Legislative Reference
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5 .
 Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
Mr. Joseph A. Morris
General Counsel
Office of Personnel Management
Washington, D.C. 20415
Office of Legislative 7Wairs
DEC 12 1983
Dear Mr. Morris:
Reference is made to your letter of October 20, 1983,
.regarding our comments on the OPM draft bill to amend 5 U.S.C.
?8312 to prohibit the payment of annuities to federal employees
convicted of certain felonies. Specifically, you requested
our assistance in developing a list of offenses the conviction of
which would appropriately be the basis for denial of annuities.
We recommend that the amendment of 5 U.S.C. ?8312 contain a
general description of the.types of violations which are appro-
priate for pension denial and authority for the Attorney General
to promulgate regulations listing specific provisions of law for
the categories described by the statute. We believe that this
approach would be preferable to proposing a list of specific
offenses for inclusion in 5 U.S.C. ?8312 because of the difficul-
ties of subjecting to the legislative process a detailed list of
criminal provisions. Moreover, a regulatory approach would allow
for greater flexibility in response to changing needs in the
future.. Assigning responsibility for promulgating regulations in
this area to the Attorney General is most appropriate because the
proposal is essentially a law enforcement matter.
We have enclosed a draft amendment of 5 U.S.C. ?8312 which
outlines in general terms the types of offenses to be included in
regulations. The draft provides that the offense, which may
subject the violator to pension denial, must be related to the
violator's federal employment. Without such a limitation federal
employees would be bound by an unfairly harsh standard of care as
compared to private employees, who are not by law generally
subject to pension denial for felony convictions. For this
reason we do not believe that violations of State law are
appropriate for inclusion in 5 U.S.C. ?8312.
The enclosed draft amendment of 5 U.S.C. ?8312 establishes a
parallel denial of military retired pay by the Department of
Defense. In addition, the draft provides for the prospective
application of the new areas of pension denial so that federal
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
 Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
employees will be on notice prior to the commission of an
included offense that they may be subject to the loss of pension
rights which have otherwise accrued to them.
Although we believe that the enclosed draft amendment of
5 U.S.C. ?8312 would be preferable to the version prepared in
your office, we are, nevertheless, concerned about the effect on
the plea bargaining process of any expansion of this provision.
We, therefore, strongly recommend that you include a statement in
any transmittal of this proposed legislation to the Congress that
when a guilty plea rests in significant degree on a promise or
agreement of the prosecutor, the promise must be fulfilled. The
transmittals should further state that in reaching a plea
agreement a federal prosecutor may agree to waive the govern-
ment's right to deny the defendant his-pension under 5 U.S.C ----
?8312. See Santobello v. New York, 404 U.S. 257 (1971). We
believe it essential o urge the inclusion of these statements, in
.committee reports that accompany this legislation, since, without
such statements in the legislative history, plea bargaining in
cases involving violations subject to the expanded 5 U.S.C. ?8312
may be severely hampered.
We are also concerned that an expanded pension-denial
authority could unfairly affect innocent survivors and benefi-
ciaries in certain cases. Under our draft OPM and the Department
of Defense would have discretion to impose pension denial
following conviction of an offense listed in the regulations.
Thus, even 'if the criteria for pension denial are met, discretion
may be exercised not to impose this penalty. We believe that one
of the factors OPM and Defense should weigh in exercising their
discretion to impose pension denial is the impact such denial
would have on innocent third parties. We urge you to include a
statement to this effect in your transmittals to Congress and to
recommend eventual inclusion of the statement in the relevant
legislative history.
If you wish to discuss this matter further, please contact
Vicki Portney, Office of Legislation, Criminal Division, at
633-4182.
Sincerely,
(Signed) Robert A. McConnell
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
 Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that section
8312 of title 5, United States Code, is amended by adding at the
end thereof the following:
"(d) The Office of Personnel Management, after notice and
opportunity for hearing, may deny payment of an annuity to an
individual or his survivor or beneficiary on the basis of the
service of the individual which is creditable toward the annuity
if the Office of Personnel Management finds that --
"(1) the individual is convicted of any felony
described in subsection (f); and
"(2) the circumstances regarding the commission of the
offense and the seriousness of the crime are such that the
interests of justice require denial of the annuity.
"(e) The Department of Defense, after notice and opportunity
for hearing, may deny payment of retired pay to an individual or
his survivor or beneficiary on the basis of the service of the
individual which is creditable toward the retired pay if the
Department of Defense finds that --
"(1)(A) the individual is convicted of any felony
described in subsection (f) in connection with his or
her service as a civilian employee; or
"(B) the individual is convicted of an offense
within the purview of a current article of the Uniform
Code of Military Justice (or an earlier article on
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5 .
 Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
! 5
2 -
which the current article is based) on the basis of
charges and specifications describing a violation
described in subsection (f); and
"(2) the circumstances regarding the commission of the
offense and the seriousness of the crime are such that the
interests of justice require denial of the retired pay.
"(f) Subsections (d) and (e) apply to any violation of
federal criminal law listed in regulations which may be promul-
gated under this subsection by the Attorney General and committed
after the promulgation of such regulations (or after the addition
of a particular offense through an amendment of the regulations
so promulgated). The list of violations in the regulations shall
be limited to any offense (other than an offense described in
subsections (b) or (c)) which involves:
"(1) intentional misuse of public office punishable
by imprisonment for a term of 3 or more years;
"(2) intentional violence or injury to another person
punishable by imprisonment for a term of 5 or more years if
committed in connection with the individual's employment;
"(3) intentional damage to or destruction of-federal
property punishable by imprisonment for a term of 5 or more
years if committed in connection with the individual's
employment;
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
 Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5
a 49
- 3 -
"(4) the manufacture, distribution, or dispensing, or
the possession with intent to manufacture, distribute, or
dispense, a controlled substance, punishable by imprisonment
for a term of 3 or more years if committed in connection
with the individual's employment; or
"(5) an attempt or conspiracy to commit any of the
above.
For purposes of this subsection, an individual's conduct is
Intentional if it is the individual's conscious objective or
desire to engage in the conduct.".
Approved For Release 2008/08/15: CIA-RDP86B00338R000400570021-5