CONFERENCE REPORT ON H.R. 6790 FOREIGN SERVICE ACT OF 1980

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• Publication Date: October 1, 1980
• Content Type: OPEN SOURCE

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October 19 1980. CONGRESSIONAL RECORD-HOUSE
thirds of the U.S. population and an even
larger proportion of the black U.S. popula-
r tion live within a day's drive of Wilberforce,
Ohio.
3. Local, regional and state citizens should
support and desire the proposed center with-
in the community. The state of Ohio has
already committed 53.5 million to the Cen-
ter and there is more to come.
The state has also established a planning
council which is nationally, as well as
locally, representative. Among the organiza-
tions that are represented on the council are
the Association for the Study of Afro-Amer-
ican Life and Histroy; the -Congressional
Black Caucus; the National Association for
the Advancement of Colored People; The Na-
tional Caucus of Black School Board Mem-
bers; The National Caucus of Negro Women;
the National Newspaper Publishers Associa-
tion; the National Urban League and The
Society of American Archivists. The council
will assist the proposed Commission in the
planning stages of the Center.
Local support for the proposed Center has
come most enthusiastically from the regional
and local chapters of the aforementioned
organizations, and, in -particular, from the
Ohio Historical Society; the Greene County
Historical Society; the Greene County Com-
missioners and the universites of Wilberforce
and Central State and several organizations
affiliated with these institutions of higher
learning.
1. The proposed area should be accessible
to major travel and recreational corridors,
have adequate vehicular access, public trans-
portation and adequate public services. The
NPS Study found that the Wilberforce, Ohio
area meets all these criteria most adequately.
5. The proposed Center and surrounding
significance. Wilberforce has been, historical-
ly and culturally, the focus of an ambitious
black community representing the. most posi-
tive and notable accomplishments of Black
Americans throughout the country. The
study cited the prominence of the Wilber.
force community in Afro-American educa-
tion, its intimate connection with the
Underground Railroad and its historical
significance.
This amendment is an improved ver-
sion of the bill I had introduced in
earlier years. The membership in the
Afro-American History and Culture
Commission has been expanded to 15
members (no more that 2 of which are
to be residents of the same State) in or-
der to enhance its national representa-
tiveness. Among those to be seated on
the Commission are the Secretary of the
Interior; the Librarian of Congress; the
Secretary of Education; the Secretary
of the Smithsonian; and nine members
to be appointed by the President "who
are especially qualified to serve on the
Commission by reason of their back-
ground and experience."
The Commission, which shall be the
guiding force behind this undertaking, is
directed to establish the critria and rec-
ommendations for interpretive, cultural
and educational. programs and uses of
the Center and also to establish "the
areas where cooperative agreements
might be developed between the Center
and existing Afro-American institutions,
organizations and universities (nation-
wide) to enhance their programs and
projects relating to the history and cul-
ture of Afro-Americans." Not only will
the Commission be responsible for the
"development of a definite plan for the
construction' of the Center, but it will
also be responsible for its operation.
Mr. Speaker, I cannot overremphasize
the need for this legislation. The Center,
which will encompass areas of broad con-
cern and will be attractive and accessible
to every American, is a unique answer to
the need of black Americans to recon-
struct their history and culture-a need
which has been neglected far too long.
It is my hope that this Center will en-
courage greater understanding among
all Americans. -
Mr. PHILLIP BURTON. Mr. Speaker,
will the gentleman yield?
Mr. LAGOMARSINO. Mr. Speaker,
further reserving the right to object, I
yield to the gentleman from California
to explain the legislation.
(Mr. PHILLIP BURTON asked and was
given permission'to revise and extend his
remarks.)
Mr. PHILLIP BURTON. Mr. Speaker,
I would like to associate myself with the
remarks of my distinguished colleague
from Ohio (Mr. BROWN).
Mr. LAGOMARSINO. Mr. Speaker, I
withdraw my reservation of objection.
The SPEAKER pro tempore. Is there
objection to the request of the gentleman
from California?
There was no objection.
The SPEAKER pro tempore. Is there
objection to the initial request of the gen-
tleman from California?
There was no objection.
A motion to reconsider was laid on the
table.
FOREIGN SERVICE ACT OF 1980
Mr. FASCELL. Mr. Speaker, I. call up
the conference report on the bill (H.R.'
6790), to promote the foreign policy of
the United States by strengthening and
improving the Foreign Service of the
United States, and for other purposes,
and ask unanimous consent that the
statement of the managers be read in
lieu of the report.
The Clerk read the title of the bill.
The SPEAKER pro tempore. ?Is there
objection to the request of the gentleman
from Florida?
There was no objection.
The Clerk read.the statement.
(For conference report and statement,
see proceedings of the House of Septem-
ber 29, 1980.)
Mr. FASCELL - (during . the reading).
Mr. Speaker, I ask unanimous consent
that the statement be considered as read.
The SPEAKER pro tempore. Is there
objection to the request of the gentle-
man from Florida?
There was no objection.
The SPEAKER pro tempore. The gen-
tleman from Florida (Mr. FASCELL) will
be recognized for 30 minutes, and the
gentleman from Alabama (Mr. Bu-
CHANAN) will be recognized for 30 min-
utes.)
The Chair recognizes the gentleman
from Florida (Mr. FASCELL).
Mr. FASCELL. Mr. Speaker, I yield
myself such time as I may consume.
(Mr. FASCELL asked and was given
permission to revise and extend his re-
marks.)
Mr. FASCELL. Mr. Speaker, I call up
the conference report on the bill (H.R.
6790). to promote the foreign policy' of
1910233
the United States by strengthening and
improving the Foreign Service of the
United States and for other purposes.
Mr. Speaker, an enormous amount of
effort has gone into this legislation and
the conferees have reached agreement on
the relatively few issues that were in dis-
agreement. Among the major issues re-
solved were the following:
First. A compromise was reached on
pay comparability for the Foreign Serv-
ice which will enable the Foreign Service
to attract the highly qualified appli-
cants it needs.
Second. The mandatory retirement age
was raised to 65 from the current 60, in
recognition of the advances made since
1946 in areas such as life expectancy,
availability of health care facilities, and
transportation. The deliberate retention
of a mandatory retirement age reflects
the demonstrated correlation between
advanced age and overseas assignability
of-members of the Service. This mecha-
nism will assist in the achievement of
the goals of predictable flows of recruit-
ment, career development, and advance-
ment to the senior ranks envisioned by
the legislation.
Third. A compromise was reached on
the issue of annuities for former spouses
of members of the Foreign Service which
removes completely the automatic ret-
roactive features of the original proposal.
Mr. Speaker, this legislation sets forth
an effective structure for the Foreign
Service for at least the remainder of
this century. I want to commend the
Members and staff- who have spent so
many hours on this legislation. It is
highly appropriate that this legislation
will be enacted in time for the celebra-
tion of the 200th birthday of the Foreign
Service.
Mr. Speaker, this legislation is a state-
ment of our belief and faith in the For-
eign Service of the United States. I urge
its adoption.
Mr. Speaker, I yield such time as she
may consume to the gentlewoman from
Colorado (Mrs. SCHROEDER).
(Mrs. SCHROEDER asked and was
given permission to revise and extend
her remarks.)
Mrs. SCHROEDER. Mr. Speaker, I
rise in support of the conference report'
to accompany H.R. 6790, the Foreign
Service Act of 1980. By and large, it is
an excellent bill which will provide
needed reforms for the personnel laws
governing the Foreign Service. In many
ways, H.R. 6790 will do for the Foreign
Service what the Civil Service Reform
Act of 1978 did for the domestic civil
service.
For 200 years, this Nation has main-
tained a Foreign Service. The Foreign
Service began as an elite organization,
in the sense that it was the New World
version of the diplomatic corps of Euro-
pean monarchies which was drawn from
the nobility. Like the nobles of European
kingdoms, our early Foreign Service of-
ficers, who were sent on diplomatic mis-
sions to other nations, were selected
more on paternity than on quality. Un-
fortunately, the early elitism of birth of
the Foreign Service has not been entirely
removed. The Foreign Service continues
to be run, too much to great an extent,
by pale, males from Yale. This bill makes
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CCONG)ESSd?NAL RECORD- OUSE, October 1 fl 2198?
explicit congressional concern for a For-
eign Service which is representative of
the diversity of the American popula-
tion. This bill encourages the Foreign
Service to continue its recent efforts to
achieve equal opportunity. As II pointed
out during our hearings, our relations
with Mexico could be greatly improved
by having Hispanics who understand
Mexican culture serve there. The recent
appointment of Julian Nava as Ambassa-
dor to Mexico shows increasing aware-
ness of the advantages of minority rep-
resentation in the Foreign Service.
Some people are uncertain about the
need for a separate Foreign Service, with
its own personnel laws. If a separate
Foreign Service means having personnel
management requirements that make
sense fo}' the type of work performed, I
have no problem with a separate For-
eign Service. Only when "separateness"
brings with it notions of elitism and
superiority do II find it offensive. This bill
reestablishes an- appropriate separate
Foreign Service--one engineered to per-
form the work it is assigned.
So that my colleagues understand the
intention of the drafters of this legisla-
tion, I want to spend a little time going
over the major features of the bill and
explaining what we had in mind:
fPAU
The House-passed bill established a
statutory linkage between Foreign Serv-
ice pay and general schedule pay. The
administration found this linkage unac-
ceptable and veto threats flew. The ad-
ministration's objections had to do with
the overall level of the pay raise provided
in the House bill and with the fact that
a statutory linkage removed authority
from the President to set pay. The House
caved rather than risk a veto. Neverthe-
less, the House position had real merit.
The President has failed to use his
authority under the Federal Pay Com.
parability Act of 1970 to keep Foreign
Service pay even with the general sched-
ule. As Foreign Service jobs have become
more difficult and more responsible.
nothing has been done to revise the old
linkages. What the conferees agreed to
was an administration-proposed pay
schedule, which contained very signifi-
cant increases in salary. II frankly am
not sure that the administration's pro-
posal meets the mandates of the Pay
Comparability Act. It is absolutely clear
to me that administration after admin-
istration over the last decade has ignored
the law and has continued to pay the
Foreign Service at rates far below the
level Congress intended.
Statutory linkage of pay makes sense
because it prevents Presidents from fail-
ing to set Foreign Service pay at an ap-
propriate level. I am sorry we had' to
remove the statutory linkage. I think it
should be clear to this and future admin-
istrations that the Persidential author-
ity to set pay under the Pay Compara-
bility Act is an authority that was
granted by Congress and can be with-
drawn. Unless, the President does a bet-
ter job in the future in keeping pay
equitable, I think the Pay Comparability
Act is likely to be changed.
In establishing a new higher pay scale,
the conferees decided that it should be
immediately applicable to all members of
the Foreign Service. There is a group of
as many as 600 individuals in the De-
partment of State and 900 in the U.S.
International Communication Agency
(USICA) who are being forced to con-
vert to the domestic civil service under
this bill. We were, admittedly, somewhat
reluctant to force this sort of disruptive
conversion on employees who did
nothing to cause this problem. This re-
luctance was heightened by the fact that
many of these employees were involun-
tarily converted from the domestic civil
service to the Foreign Service earlier in
this decade to suit a management whim..
Our reticence was even stronger in the
case of the domestic Foreign Service re-
serve staff at USICA because this group
of employees have a valid contract with
the agency in which the agency promised
not to convert them. The decision was
made to convert these employees, but
part and parcel of that decision was a
determination to raise the pay of these
employees to the new Foreign Service
schedule before any conversion takes
place. There is no evidence that these
employees are any less entitled to a pay
increase than are other in the Foreign
Service.
The language of the conference report
makes the policy quite clear: Everyone
who now carries a Foreign Service desig-
nation, whether they are worldwide
available or not, should be converted to
ity (FLRA). This new Board is chaired
by the chairman of the FLRA and has
two other members who are appointed by
the FLRA chair, with the agreement of
the parties, if possible. This Board
hears and decides labor cases out of the
Foreign Service. In deciding its cases,
this Board is bound by the decisions of
the FLRA, unless the Board finds that
special circumstances require otherwise.
Aside from these special features, the
-labor-management provisions of the
Foreign Service Act are intended to be
the same as. in the Civil Service Reform
Act.
One area in which the same rules are
intended to be applied is the question of
what is negotiable. Although the word-
ing of the management rights sections
differ somewhat, due to the differing per-
sonnel systems, the same limited num-
ber of items are intended to be non-
negotiable. Decisions of the Federal La-
bor Relations Authority on negotability,
including those already issued under title
VII, are equally applicable to the For-
eign Service.
Everything which is now negotiable in
the Foreign Service continues to be ne-
gotiable, while those items which have
previously been ruled nonnegotiable in
the Foreign Service will have to be re-
considered under the new law. Absent
unusual special circumstances, that
which is negotiable in one system is ne-
gotiable in the other. As Representative
the new pay schedule. Subsequently;-,FORD and I agreed when the bill was on
they can be converted to another per- the House floor, nothing in the bill dic-
sonnel category, if the bill permits it. - 'tates a different outcome in cases such
%ABOR-MANAGEMENT RELATIONS
H.R. 6790 establishes a statutory basis
for labor-management relations in the
Foreign Service. The original bill drafted
by the administration contained what
amounted to a codification of Executive
Order 11636. That was unacceptable to
those of us on the Committee on Post
Office and Civil Service who had worked
so hard to strengthen the labor rights
for the rest of the Federal civil-service.
So, on behalf of the committee, II intro-
duced a substitute for the administra-
tion's labor-management provision
which essentially applied title VII of the
Civil Service Reform Act of 1978 instead.
We did make a few significant changes
in the provisions of the Federal-manage-
ment relations statute to conform its
provisions with the structure and opera-
tions of the Foreign Service. One change
was to postulate, by statute, that the
appropriate bargaining unit in the for-
eign affairs agencies was agencywide.
This change was needed because of the
dispersed nature of the members of the
Foreign Service. A second change per-
mitted many employees, who would be
management officials or supervisors un-
der title VII, to be part of the bargain-
ing unit. Again, due to the small size of
some Foreign Service posts, rather junior
members of the Foreign Service would
fall within the title VII definitions and
consequently the bargaining unit would
represent only a small portion of the
agency's employees. A third change from
title VII was the creation of a new For-
eign Service Labor Relations Board,
which has authorities parallel to those
of the Federal Labor Relations Author..
as the recent FLRA decision on the ne-
gotiation of procedures which allegedly
delay agency action.
This legislation establishes an institu-
tional grievance mechanism which
allows the exclusive representative to
grieve all and any disputes over the im-
plementation of a collective-bargaining
agreement, whether or not the same issue
could have been raised as an individual
grievance. Implementation disputes go
to the grievance board and are appeal-
able to the Foreign Service Labor-Rela-
tions Board. This provision,, which'
parallels one in the Civil Service Reform
Act, says that -the Labor Board should
have the final say on disputes concern-
ing the effect, interpretation, or claim of
breach of a collective-bargaining agree-
ment. Many individual grievances before
the Grievance Board involves the same
matters. The doctrine of collateral
estoppel stops the same party from twice
challenging the same situation. On the
other hand, a decision of the Grievance
Board interpreting a collective-bargain-
ing agreement does not preclude the ex-
clusive representative from filing an in-
stitutional grievance on the contract, as
long as the exclusive representative did
not already bring the case earlier as an
institutional grievance.
SEPARATION FOR CAUSE
There has been some confusion over
the provisions of section 610(a) (2) re-
lating to the administrative procedure
used in separation for cause cases. What
this section does is establish the Griev-
ance Board as the functional equivalent
of the agency in adverse action cases
under section 7513 of title 5, United
States Code. Essentially, this section says
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October 1, 1980 Co
that the Grievance Board procedures
supplant the chapter 75 procedures unde
title 5, United. States Code. Obviously
nothing in this section or in the rest o
the bill cuts off the right of a mambo
of the Foreign Service to appeal to th
Merit Systems Protection Board, the
Equal Employment Opportunity Com-
mission, the Special Counsel, or Federa )
court, under the provisions of any othe/
law.
FORMER SPOUSE PENSION
Before I begin my explanation of this
section, I want to point out a typograph-
ical error in the conference report. In
the first sentence of section 814(a) (3),
the "on" should be "or" the second time
it appears.
The conference committee adopted the
Senate language on retirement benefits
for divorced Foreign Service spouses, with
three modifications.
First, the effective date provision (Sec-
tion 2403(e) (2)) was revised so that the.
provisions relating to the rights of for-
mer spouses to receive survivor annuities
apply only in the cases of individuals
who become former spouses after the
effective date of the act-February 15,
1981.
Second, a new provision was added to
permit an individual who prior to the
effective date of the act had a former
spouse to elect to provide a survivor bene-
fit for the former spouse.
Third, new provisions were added to
permit the parties to enter into spousal
agreements regarding their respective
rights under chapter 8 of this bill. Such
an agreement will be given the same ef-
fect as a court order allowing the parties
to adjust their respective rights with-
out the necessity of going to court.
This legislation attempts to remedy an
inequity in current Federal retirement
policy-its failure to assure retirement
protection to spouses and divorced
spouses of Federal employees. Whereas
tion of the retirement annuity and sur-
vivor benefits based on the number of
years of marriage during creditable years
of service, unless the court decided or the
parties agreed otherwise.
The rationale for the Federal pro rata
guidelines was stated in the reports of
both the House Committee on Foreign
Affairs and the Senate Committee on
Foreign Relations:
/ Equally unsatisfactory is the decision to
leave this problem to a solution by court
order. Access to the courts is expensive, par-
ticularly for individuals such as Foreign
Service spouses who typically have no jobs,
no insurance, and no other income to speak
of. There is no real precedent for awarding
to former spouses a percentage of pensios or
survivor annuities. In addition, widely vary-
ing divorce laws from state to state would re-
sult in different awards of a Federal benefit
for the same deprivations. Furthermore, there
is little or no awareness among the legal
community of the special problems faced by
Foreign Service spouses. Finally, overseas
service frequently results in cutting off these
individuals from their community roots,
thereby exacerbating the problems normally
faced by women seeking divorce. In particu-
lar, this results in reliance on a husband's
lawyer or on his recommendations. Section
814, therefore, seeks to provide some protec-
tion for these individuals through the mech-
anism of the retirement system.
As a result of the introduction of "no
fault" divorce in the last decade and its
adoption in all but 2 States, the num-
ber of divorces has soared to 1 million
annually. Since "no fault" was adopted
without the accompanying economic pro-
tections for nonworking spouses advo-
cated by the Family Law Section of the
American Bar Association, women suf-
fered the economic burden of divorce. A
1979 census survey indicates that only 4
percent of divorced women receive any
alimony. Moreover, 78 percent of women
with custody of their children received
not 1 cent in child support from the fath-
ers of these children.
IECO)i D m HOUSIE
H 1 235
Moreover, couples should be permitted
to reopen negotiations regarding their
property settlements. If they agree that
the divorced spouse should receive the
survivor benefits, the courts should
honor such negotiations and permit the
divorced spouse to pay any back pay-
ments due if this is part of the spousal
agreement.
The new law states that the presump-
tion of pro rata entitlement will become
effective unless changed or rejected by
a court within 12 months after the date
of divorce or annulment becomes final.
However, there is no time limit stipu-
lated by the legislation that would re-
strict the provisions of a spousal agree-
ment or court order concerning already
divorced Foreign Service spouses.
In cases where a final decree has been
issued, but no valid property agreement
has been signed, the guidelines provided
in this act are intended to apply.
It should be emphasized that section
807(c), which permits an individual to
decline to accept all or any part of the
annuity by submitting a signed waiver to
the Secretary of State, applies only to
the portion of the annuity to which the
Foreign Service participant is entitled.
In no way may the participant limit the
entitlement of the former spouse.
Section 806(b) (1) (D) permits the Sec-
retary of State to prescribe regulations
under which a participant or former par-
ticipant may make an election concern-
ing survivor benefits. without the par-
ticipant's spouse or former spouse if the
participant establishes to the satisfac-
tion of the Secretary of State that the
participant does no know, and has taken
all reasonable steps to determine the
whereabouts of the spouse or former
spouse. Obviously, where the participant
does not take reasonable steps to find the
missing spouse or former spouse, that
spouse or former spouse, if he or she
later appeared, would have a cause of ac-
tion against the participant or the Sec-
retary of State or both for the damages
suffered as a result of the improper elec-
tion.
In the future, I think that the Con-
gress should take another look at re-
tirement benefits for those Foreign Serv-
ice spouses who did not benefit from this
bill. I think that the Government has
failed to provide adequat compensation
to those spouses in exchange for their
years of frequent moves to follow the
Foreign Service officer and unpaid hours
of service performing representational
duties.'Until October 1, 1976, when the
Foreign Service Retirement System was
changed to be made consistent with the
Civil Service Retirement System, there
was a mandated survivor annuity for the
Foreign Service spouse designating the
spouse as beneficiary by name, in an in-
strument which both spouses signed.
Moreover, the spouse was entitled to this
annuity, even if as a widow she remarries
before age 60. I do not think that Con-
gress can close the books on the Foreign
Service spouse issue until it has done
something for those spouses who have
received no recompense. One possible so-
lution would be to use the grantee widow
approach adopted earlier by the Foreign
Service Retirement Act: It provided a
minimum survivor annuity for those
social security provides automatic bene- , Therefore, I hope the courts will be re-
ried at least 10 years, Federal retirement
law has previously not recognized the
contribution of the nonworking spouse or
former spouse. -
In approving the provisions in the For-
eign Service Act, Congress recognizes the
vested interest of the nonworking spouse.
There has been a traditional division of
labor in families by which men assume
the breadwinning function and women
assume family responsibilities. By taking
time out of the work force to raise fam-
ilies, women sacrifice their own work op-
portunities to promote their husband's
careers. As. a result of long periods out
of the work force as well as their own job
mobility, women have been prevented
from building their own retirement credit
and from vesting for their own pension.
The failure of the pension system to rec-
ognize the value of the support services
provided by the wife has permitted
women to fall between the cracks of our
pension system and suffer the cruel con-
sequences of poverty in old age.
sponsive to this change in the law. Prior
to passage of. this act, courts were pro-
hibited from awarding the survivor bene-
fits to older women who had 'spent long
and honorable careers in the Foreign
Service and had no other source of re-
tirement income. Now that Congress has
changed this defect in the retirement law,
I expect courts to consider survivor bene-
fits in all future Foreign Service divorce
gases.
The committees were deeply aware of
the inequities dealt to Foreign Service
spouses who were divorced prior to this
act. To ameliorate their pkight, the con-
ference report permits a participant or
former participant of the Foreign Service
retirement system to elect to provide a
survivor benefit for a former spouse. Ob-
viously, if a participant can elect to pro-
vide such benefits, a court, if the situa-
tion warrants, can order a participant to
elect to provide survivor benefits.
Our intent is not to force the reopen-
ing of numerous divorces. There are
cases, however, in which equity and fair-
ing whether to reopen old cases, courts
should consider the availability of sur-
vivor benefits under section 2109 new
property.
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CONGRIESSIIONAIL RECORD -HOUSE October 1, 1980
widows whose husbands had not taken a
reduction in the primary annuity to pro-
vide survivor benefits and thereby retro-
actively enabled them to receive a sur-
vivor annuity.
The bill requries the Secretary of State
annually to inform participants and
their spouses and former sopuses of their
rights under section 814 of the bill. Con-
gress expects that the State Department
will Involve the Family Liaison Office
in notifying participants and their
spouses and former spouses of the right,
conferred by this bill. We expect aggres-
sive efforts to notify individuals of their
new rights.
Provisions of the act permit parties to
enter Into spousal agreements with re-
spect to their rights under chapter 8.
Such an agreement will be given the
same effect as a court order, allowing the
parties to adjust their respective rights
without the necessity of obtaining a
court order. I urge the Secretary of State
to review, advise, and generally assist
participants and their spouses in the
writing of spousal agreements. The Sec-
retary should provide advisory opinions
to participants and their spouses or
former spouses on whether their spousal
agreements can be honored.
This new retirement law should be in-
terpreted consistent with its intent by
both the courts and the Department of
State. It Is the intent of Congress that
Foreign Service divorced spouses be pro-
tected against poverty In old age. Regu-
lations and decisions that restrict these
protections are contrary to the will of
Congress.
The reason I feel constrained to em-
phasize this point is that the Office of
Personnel Management has gone out. of
Its way to write restrictive regulations
that have resulted in the denial of court
orders contrary to the will of Congress.
When Public Law 95-366 went into
effect on September 15, 1978, it mandated
the Office of Personnel Management "to
honor the terms of any court decree of
divorce, annulment, or legal separation,'
or the terms of any court order or court-
approved property settlement agreement
Incident to any court decree of divorce,
annulment, or legal separation."
The intent of the law seems clear
enough, but the Office of Personnel Man-
agement has messed it up.
In a July 28, 1980, report on the im-
plementation of Public Law 95-366, the
General Accounting Office reports that
the Office of Personnel Management has
rejected 30 court orders and thereby de-
nied apportionment to the affected
former spouses. In addition, the General
Accounting Orce indicates there are
another 50 to 100 court orders which
were rejected and retired to the records
storage facility.
I am outraged that the Office of Per..
sonnel Management failed to inform
the Interested i arties in these rejected
cases when the Office of Personnel Man-
agement regulations were changed to
permit the Office of Personnel Manage-
ment to honor the court orders. Further-
more. the Office of Personnel Manage-
ment denied a retiree's request that part
of his retirement annuity be assigned to
his former spouse although the General
Accounting Office indicates that the Of-
fice of Personnel Management has the
authority to permit such allotments. It
is callous treatment both of the State
courts and those former spouses.
I urge John P. Bowler, Chief of the
Office of Personnel Management's Policy
Development Section, to immediately
reprocess these rejected court orders
and retrieve those which are in the stor-
age facility in Boyers, Pa. Innocent wom-
en should not be made to suffer be-
cause of some bureaucrat's nitpicking.
Moreover, the Office of Personnel
Management's regulations of March 7,
1980, must be expanded. The Office of
Personnel Management procedures pro-
vide for direct payments to the former
spouse only if the retiree does not object
to such a procedure, even though the
court specifically stated that the retiree
was to make the payment. It is totally
contrary to congressional intent for the
Office of Personnel Management to places
this restriction on court orders
Unless there is an administrative solu-
tion to the problems soon, I can assure
the Office of Personnel Management that
a legislative solution will be forthcom-
Ing.
I commend the Congress for adopting
this precedent setting legislation to rec-
ognize the vested Interest of the spouse
of Federal employees to a pro rata share
of the retirement and survivor annuities.
This legislation is consistent with rec-
ommendations of the President's Com-
mission on Pension Policy In its Interim
report of May 1980.
Moreover, it is another step toward
more equitable treatment of spouses.
Passage of Public Law 95-366 last Con-
gress gave the courts the authority to
divide Civil Service Retirement System
annuities and removed the immunity of
Federal civilian pensions from such court
orders.
The Congress has thus far failed to
make this provision applicable to the
military. To quote the recent General
Accounting Office report:
It should be pointed out that, except for
garnishment actions, the uniformed services
retirement system does not allow for direct
payment of retirement benefits to former
spouses in compliance with court orders. We
know of no reason why this system should
not be consistent with the civil service and
Foreign Service systems.
GRIEVANCES
We made some Improvement in the
grievance section of the bill during the
conference. Nevertheless, I still hear a
lot of dissatisfaction with the operations
of the Grievance Board. In the civil serv-
ice, grievance systems are negotiated be-
tween management and the exclusive
representative of the employees. Because
of failure of those negotiations in the
early seventies, the grievance mechanism
is, statutory in the Foreign Service. My
preference would be to have a negotiated
system In the Foreign Service as well.
Moving In that direction was impossible
during consideration of the Foreign
Service Act.
Many of the problems with the griev-
ance-system are not capable of legisla-
tive solution. Although legislative chang-
es might help, I frankly think that many
problems could be better solved by a more
assertive Grievance Board. If the mem-
bers of the Board saw themselves as in-
dependent and neutral . decisionmakers,
the Board would be a stronger and better
institution. One of the things we tried to
do in this legislation and. in the legisla- C
tive history was to convey to the Griev-
ance Board the interest of Congress in
its Independence. The Board should not
see itself as a management body.
With regard to the definition of a
grievance, I think the language of sec-
tion 1101 provides for a broad range of
grievable actions. The area which causes
the most concern is that of reprisals.
Section 1101(a)(1)(F) makes alleged
reprisals grievable. This section should
be read without regard to the limitations
in section 1101(b). Indeed, the integrity
of the grievable mechanism depends on
the Grievance Board being able to pro-
tect members of the Service who use the
system. The list of grievable items in sec-
tion 1101(a) is a descriptive and not a
limiting list. The list in 1101(b) is a list
of exceptions and, as such, should be
read .narrowly by the Grievance Board.
Henee, an action should be grievable un-
less there is a specific, narrow exception
in 1101(b).
With regard to the Secretary's veto
over Grievance Board decisions, I think
a clear statement of congressional In-
tent should be helpful. The way I see the
veto provision working is that the agency
head should, except in rare cases, adopt
and implement the decision of the Griev-
ance Board. The decision of an agency.
head to veto the decision of foreign
policy or national security grounds, is
essentially unreviewable. What has to be
conveyed to agency heads is congres-
sional will that the decision of the Board
be implemented. I personally would like
to know every time an agency head re-
fuses to implement the decision of a
Grievance Board. 7 would like to know
from the Department why the veto was
exercised. If vetoes was exercised too
often In the future, I would try to re-
move this veto power from the Secretary.
During floor consideration, both the
gentleman from Florida (Mr. FAscELL)
and I promised the gentleman from
South Carolina (Mr. DERRICK) that we
would look into the working of the
grievance system. I am sure both of us
intend to keep that commitment.
EQUAL EMPLOYMENT OPPORTUNITY
In numerous places throughout this
bill, congressional Interest in insuring
equal employment opportunity in the
Foreign Service is stated. Merit princi-
ples, including equal employment oppor-
tunity must be followed in every per-
sonnel action. The Inspector General of
the Department of State and the Foreign
Service is specifically instructed to in-
spect to see that merit principles are
being observed.
There Is new provision which I think
deserves special attention. This bill
makes statutory the existence of the
Board of Examiners of the Foreign Serv-
ice. The Board Is given the specific statu-
tory mandate of seeing whether the ex-
asninations given by the Foreign Service
meet the requirements of the Uniform
Guidelines of Employee Selection Pro-
cedures. While these guidelines, Issued
-by the Equal Employment Opportunity
Commission and other agencies, apply
fully to all Government agencies, en-
forcement has been lax. This Is because
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October 1n 1980 CONGRESSIONAL RECORD-HOUSE
no clear enforcement mechanism exists.
In the Foreign Service, the Board of Ex-
aminers is given the power to enforce the
guidelines to assure compliance.
Establishing this enforcement mech-
~inism is particularly justified in the For-
*eign Service, given its abysmal record in
the hiring of minorities and women. Since
hiring in the Foreign Service is initially
from a written examination, legitimate
questions have been raised about the va-
lidity of that exam if it screens out dis-
proportionate numbers of women and
minorities. To a lay observer, the writ-
ten Foreign Service exam seems to be a
trivia contest, asking obscure questions
which have little apparent connection to
job performance. I expect the Board of
Examiners to make the type of signifi-
cant changes needed in this exam in or-
der to make sure that it complies with
Uniform Guidelines.
INSPECTOR GENERAL
This bill establishes an Inspector Gen-
eral of the Department of State and the
Foreign Service who has the same re-
sponsibilities and powers provided to In-
spectors General created under the In-
spector General Act of 1978. In addition
to these powers, the Inspector General
in this bill has the authorities of the
existing Inspector General of the Foreign
Service. The State Department and the
Foreign Service need the services of audi-
tors and investigators no less than any
other sector of Government.
One provision of the House bill, which
we removed in conference, required the
appointment of two Assistant Inspectors
General, one for auditing and one for
Investigation. The deletion of this re-
quirement does not undermine the need
for strong and separate units responsi-
ble for these two functions. I would ex-
pect the Department of State to structure
its office of Inspector General based on
the model provided in the Inspector Gen-
eral Act of 1978. Any departure from this
model should be justified by the special
circumstances of the Foreign Service.
POSITION DESIGNATION
One of the central features of this
bill is its guiding principle that Foreign
Service personnel authorities should only
be used where there is a requirement for
significant experience abroad in the con-
duct of foreign affairs and where the
advantages of continued incumbency or
specialized skill do not outweigh the ad-
vantages of a Foreign Service designa-
tion. Even though this requirement does
not appear in the bill itself, it is well
understood that positions should be part
of the domestic civil service unless they
meet the special requirements for For-
eign Service designation.
The bill departs from this principle in
the case of the headquarters staff of the
Peace Corps. In the Peace Corps, em-
ployees serve under a Foreign Service
designation, with no obligation for
worldwide availability, for a limited 5-
'ear term. I am not convinced that this
special exception is warranted. Further,
I see no reason that the headquarters
e~aff at the Peace Corps should not gain
civil service career status from their
tenure. As I said during floor debate on
this bill, I intend to look into this issue
further in the future.
SENIOR FOREIGN SERVICE
H.R. 6790 creates a Senior Foreign
Service based on the Senior Executive
Service model established in the Civil
Service Reform Act of 1978. As in the
domestic civil service, this top career
service will have rigid entry require-
ments, reduced job tenure, and the pos-
sibility of large monetary rewards. In
regard to the Senior Executive Service,
Congress has already shown its concern
about monetary bonuses being too freely
distributed. The message of the existing
congressional restriction on SES bonuses
to the domestic agencies should be
listened to by the Foreign Affairs agen-
cies as well: Bonuses should be provided
to those who have distinguished them-
selves through outstanding performance.
They should not be spread around on a
rotating basis so that nearly every senior
official receives a bonus every few years.
They should not be used to enforce dis-
cipline or to encourage future perform-
ance. The purpose of Senior Executive
and Senior Foreign Service bonuses is to
reward sustained and demonstrated out-
standing performance. Agency misuse of
bonuses will surely result in the end of
the bonus system.
RETIREMENT CREDIT FOR NON-FEDERAL
SERVICE
The conference report contains two
provisions which I oppose to provide re-
tirement credit for periods of non-Fed-
eral service. The Senate insisted on these
provisions and we were forced to recede.
Nevertheless, I intend to stand in the
way of any further attempts to provide
Civil Service or Foreign Service retire-
ment credit for periods of service with
organizations which were not part of the
Federal Government at the time the
service was performed.
Mr. BUCHANAN. Mr. Speaker, I yield
myself such time as. I may consume.
Mr. Speaker, I would first like to com-
mend the chairman of our Subcommittee
on International Operations, the gen-
tleman from Florida, for his untiring
efforts on what is a much needed reform
of the Foreign Service structure. With-
out his leadership, this legislation would
not be before us today.
I would also like to commend the
gentlelady from Colorado and the gen-
tleman from Iowa, the chair and rank-
ing minority member of the Civil Serv-
ice Subcommittee for their efforts and
support.
While I am thanking people, I would
be remiss if I did not express my own
gratitude and I am sure that of the
other -Members involved in this legisla-
tion as well, to the staff for their work
on this bill. Literally hundreds of hours
have been spent on hearings, in draft-
ing sessions and on committee and con-
ference reports on this legislation.
Indeed, I have been involved in few
pieces of legislation durng my 16 years
in Congress in which so much effort has
been expended.
In my judgment, this effort was justi-
fied because we are dealing with a very
important group of people-the mem-
bers of the Foreign Service of the United
States.
The Foreign Service is comprised
of many highly competent and dedi-
IHI AM
cated individuals who serve through the
world in a variety of posts, both friendly
and hostile.
Their lives are on the line daily.
With this legislation, we have sought
to provide a system which will produce
the most capable and best trained For-
eign Service personnel possible. It is es-
sential that we do so. Our very future de-
pends on it.
Mr. Speaker, the bill before us today is
a good one which will provide many
needed improvements in the Foreign
service.
It does, however, contain one flaw
and that is in the area of pay compa-
rability.
The House passed version of this bill
included what I believe to be true pay
comparability as required. by the Fed-
eral Pay Comparability Act of 1970. The
conference provision is somewhat less
than the House version, but is a sub-
stantial improvement over the adminis-
tration's initial proposals.
Mr. Speaker, it is nothing less than a
scandal that the members of our Foreign
Service, who are today in Iran, in Af-
ghanistan, in El Salvador and other
areas of unrest, over the years have been
paid less than their civil service coun-
terparts serving in Washington, Califor-
nia, or elsewhere in this country.
While the legislation before us today
is a substantial first step toward the
achievement of such comparability, I
would strongly urge this administration
or whatever administration is to follow
to move expeditiously to insure full com-
parability between the Foreign Service
and the civil service.
Notwithstanding this flaw, however, I
believe H.R. 6790 is needed legislation
and long-overdue legislation. I urge the
adoption of the conference report.
Mr. Speaker, I yield such time as he
may consume to the gentleman from
Iowa (Mr. LEACH).
(Mr. LEACH of Iowa asked and was
given permission to revise and extend
-his remarks.)
[Mr. LEACH of Iowa addressed the
House. His remarks will appear hereafter
in the Extensions of Remarks.]
Mr. FASCELL. Mr. Speaker, I yield
such time as he may consume to the
gentleman from South Carolina (Mr.
DERRICK).
(Mr. DERRICK asked and was given
permission to revise and extend his re-
marks.)
Mr. DERRICK. Mr. Speaker, I rise to-
day in support of the conference report
before us. However, in so doing, I do wish
to underscore the concerns I have re-
garding the grievance procedure estab-
lished in law by this legislation.
During House consideration of this
measure, Mr. Speaker, I had planned to
offer an amendment to chapter 11 of this
bill, which is the chanter dealing with
grievances. My amendment would have
been a substitute for that entire chapter.
For the sake of brevity, Mr. Speaker, I
will not enumerate the concerns I have
with this grievance procedure at this
time. Rather, I would note that the tact
that I had entertained the option of of-
fering an entire substitute chapter
should serve to indicate that the in-
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H 10238 CONGRESSIONAL RIECORD -HOUSE
terests I have in this matter are both
substantial and significant.
This piece of legislation was the prod-
uct of no small amount of time and
effort, and I congratulate those respon-
sible for it. And it was because the two
House committees involved spent such
an extended period of time on this, that I
was sympathetic to their concerns that
the amendment I was going to offer had
not had the benefit of their full consid-
eration. Although I would note, Mr.
Speaker, that the bill to which I am
sponsor and from which my amendment
was drawn has a legislative history span-
ning the last decade.
It is with the interest of fully involving
the many parties to this legislation that
I did agree not to offer my amendment at
the time this legislation was before the
House. Rather, I was assured by both
committee chairpersons, the Honorable
DANTE FASCELL and the Honorable PA-
TRICIA SCHROEDER, that hearings would be
held at the earliest possible date to give
full attention to the issues I had raised
in my amendment.
Mr. Speaker, I am confident that the
assurances given me by my distinguished
colleagues will insure that the issues
raised concerning the grievance proce-
dure will be fully addressed by the House.
And I look forward to the opportunity to
do so.
Mr. FASCELL. Mr. Speaker, I yield
such time as he may consume to the gen-
tleman from Wisconsin (Mr. ZABLOCKI),
chairman of the committee.
(Mr. ZABLOCKI asked and was given
permission to revise and extend his re-
marks.)
Mr. ZABLOCKI. Mr. Speaker, I rise in
strong support of the conference report
-on H.R. 6790.
Mr. Speaker, I am sure the Members
will be pleased to learn that your con-
ferees on this bill have done a marvelous
job and I want to take this time to pay
tribute to my esteemed colleague Hon.
DANTE B. FASCELL, the chairman of the
Subcommittee on International Opera-
tions, chairman of Post Office, Mr. HAx-
LEY, and the able PAT SCHROEDER, chair-
person of the Subcommittee on the Civil
Service, for their work in this conference.
I also want to thank the ranking minor-
ity members of the subcommittees, the
gentleman from Alabama (Mr. Bu-
cHANAx) and the gentleman from Iowa
(Mr. LEACH) and the staffs of the two
committees for the many hours of work
put in on this legislation and on the con-
ference with the Senate.
Mr. Speaker, this bill and conference
report are the culmination of a year and
a half of legislative work and over 3 years
of review within the executive branch. It
is vitally important to the Foreign Serv-
ice and to the U.S. foreign policy effort.
I am particularly pleased that the con-
ferees were able to reach agreement on
the important issue. of pay compara-
bility for the Foreign Serivice. At long
last, we can begin to halt the decline in
the numbers of applicants entering the
Foreign Service.
The conference report also raises the
mandatory retirement age for the For-
eign Service to 65 and reaffirms the re-
quirement of worldwide availability for
those who serve in the Foreign Service.
Mr. Speaker, this conference report
has already passed the Senate: The
President is ready to sign it once the
House acts. Let us agree to this confer-
ence report without delay.
~=e*i RD o f Michigan. Mr. Speaker,
n reluctant support of the confer-
ence report on the Foreign Service Act
of 1980. The bill provides a badly needed
first step toward pay comparability be-
tween the Foreign Service and the Civil
Service, an improvement too important
to delay at a time when American diplo-
mats and their staffs are enduring the
hardships of one of the most difficult
periods in the history of American for-
eign relations. But I find myself in deep
philosophical disagreement with that
section of the bill that provides annui-
ties for former spouses of Foreign Serv-
e officers.
7 When H.R. 6790 was considered on
the House floor, the Post Office and Civil
Service Committee offered an amend-
ment to modify the provisions in sec-
tion 814 that provided for an automatic
allocation of retirement and survivor
benefits between a member of the For-
eign Service and current spouses and
former spouses of the member. Those
provisions were iaentical to the provi-
sions in the Senate bill.
By an overwhelming vote of 229 to 111,
the House rejected the provision for an
automatic allocation and approved the
Post Office and Civil Service Committee
amendment, which provided that retire-
ment and survivor's benefits should be
treated like all other property for pur-
poses of division by a State court pur-
suant to a divorce. The amendment
approved by the House-also required that
notice be afforded a spouse before a For-
eign,Service officer elects not to estab-
lish a survivor's benefit.
P3 Despite the mandate of the House, the
conferees have substantially adopted the
II Senate's position on this matter. The
conference substitute does contain one
major improvement over the Senate bill,
in that the substitute will not disrupt
the rights of any parties who have al-
ready divorced before the act's effective
/date.
Nevertheless, I.have several strong ob-
jections to the act's treatment of pen-
sions which I would like to make clear.
My first objection is the most serious: I
believe it is wrong to readjust the pen-
sion rights of Foreign Service members
after those rights have ben earned and
vested. It is wrong to induce an employee
to work for 20 or 30 years by promising.
him a certain pension, only to renege on
October 1, 1980
part of that pension. It was wrong in the
private sector 6 years ago when we en-
acted ERISA and it is wrong today in theD
federal sector.
The same principles that engendere
ERISA will be jeopardized by the legisll
tion we are considering today: the prin333
ciple that every employee should be se-
cure in his or her retirement income; the
principle that a promise should be kept;
and the principle that property that a
person has earned should not be taken
away without that person's consent. For
this legislation takes pension money
promised to Foreign Service officers in
return for their years of service and gives
it to someone else.
The conferees, including the House
sponsor of the provision in question, were
nanimous in their intention that no
recedent be established by the confer-
nce substitute. They each stressed, in
he clearest terms, that the situation of
he spouses of Foreign Service officers,
hich section 814 seeks to correct, is
unique among Federal employees and
their spouses. Unique prohibitions on the
employment of Foreign ,Service spouses
and unique duties and hardships, com-
bined with the inability of these spouses
to qualify for social security, differentiate
them from the spouses of military per-
sonnel and other Federal employees and
make this- legislation inapplicable as a
j,precedent for any other group.
But Federal employees in general will
be anxious about a different precedent a&
they struggle to protect the cost of living
adjustments to their retirement annui-
ties promised to them by previous Conn
gresses. They will worry, with good causd,
when they see the sanctity of the Gov-
ernment's promise to Foreign Service of-
ficers compromised by this legislation.
For each time a principle is ignored it is
weakened.
What does a congressional action such
as this say to future and present Federal
employees to whom the Federal retire-
ment program is a decisive attraction?
They know they can neither. bargain over
nor strike for pay and benefits, but must
trust to Congress at least to maintain
their retirement program intact. As pay
levels are capped and pay compression
in the higher grades worsens, recruit-
ment of quality people will be Increasing-
ly difficult. By undermining the Federal
employees' trust in their retirement se-
curity we only make recruitment that
much more difficult.
I fear that In its zeal to correct one in-
justice the Congress has committed a
greater injustice and one with more last-
ing impact. Mr. Speaker, I yield back the
balance of my time.Q
Mr. FASCELL.' Mr. Speaker, I move
the previous question on the conference
report.
The previous question was ordered.
The conference report was agreed to.
A motion to reconsider was laid on the
table. P,
NOTICE
complete record of House proceedings, Except for concluding business which follows, today's
House proceedings will be continued in the next issue of the Record,
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