LETTER TO JOSEPH A. MORRIS FROM ROBERT A. MCCONNELL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89-00066R000800240013-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 23, 2016
• Document Release Date: November 23, 2012
• Sequence Number: 13
• Publication Date: December 12, 1983
• Content Type: LETTER

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' Declassified and Approved For Release 2012/11/23 ~ CIA-RDP89-000668000800240013-7
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Office of the Auistant Attorney General Wathln~ron, D.C. 20530
DEC 1 2 1983
Mr. Joseph A. Morris
General Counsel
Office of Personnel Management
Washington, D.C. 2015
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
sub3ect 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
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 Declassified and Approved For Release 2012/11/23: CIA-RDP89-000668000800240013-7
employees will de 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.
98312. See Santobello v. New York, 40~ U.S. 25? (1971). We
believe it essential to 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 1. McConnell
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
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