MEMORANDUM FOR: MR. BANNERMAN FROM WFV

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79-00632A000100080002-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 78
• Document Creation Date: December 14, 2016
• Document Release Date: November 4, 2002
• Sequence Number: 2
• Publication Date: August 25, 1967
• Content Type: MF

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2S August 1967
MEMORANDUM FOR: Mr. Bannerman
This may be more on the Ervin
Bill than you want, but here are:
1. a brief note on the key amendments added the
other day plus remarks abaut the sections of the final
bill to which we still have serious objection;
Z. an annotated statement of our objections to the
original bill which OGC prepaxed for Mro Helms' use--
the notes point out the effect of recent amendments on
our original statement;
3. a copy of the final bill as reported by the full
Committee showing by italics the most recent amendments;
4, the Committee's report explaining each section
of the bill o
is preparing for
Mr , Helms' use a new statement o' a 1 our objections
to the bill and reasons therefor. It probably will
resemble item #2o He'll send you a copy as soon as
it's ready.
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THE ERVIN BILL
Recent actions of the Senate Judiciary Committee amending 5-1035
have yielded some "concessions" insofar as CIA's interests go, The Bill
as reported out by the Committee:
1. permits inquiries about national origin if necessary
to determine suitability for activities related to national security;
2. deletes the section about forbidding employees to
patronize business establishments;
3. deletes the section on criminal penalties;
4. contains a new Section 6 allowing CIA (and NSA) to elicit
in polygraph and psychological tests information about family
relations, religious beliefs, and sex matters if the DCI makes
a personal finding in each case that the information is required
to protect the national security.
We still have important objections to these remaining portions of the
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DCI Statement ........................ Tab A
Section by Section Analysis of S. 1035... Tab B
List of Committee Members ............ Tab C
Bill No. S. 1035 .:..................... Tab D
Report No. 534 on S. 1035 .............. Tab E
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Section 9. This is the standard separability clause statin; that
if any provisi?n~r~f this act is held invalid, the remainder shall not be
affected.
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Senate Committee on Judiciary
James O. Eastland {D. , Miss. } Chairrrlan
John L. WicCiellan (D.. Ark.
Sam J. Ervfn, Jr. (D. - N. C. )
Thomas J. Dodd {D. , Conn. }
Phiiip A. Haxt {D. , Mich. )
Edward V. Long (D. , Nio. )
Edward M. Kennedy (D. , N.~ass. )
Birch Bayh {D. , Ind. )
Quentin 'N. Burdick (D. , N. Dakota}
Joseph D. Tydings {D. , Md.)
George A. ~ms.tl~er.s ,; (D. , FIa. )
Everett McKinley Dirksen (R. , Ill. )
Roman L. Hruska (R. , Neka. )
Hiram L. Fong {R. , Hawaii)
Huth Scatt (R.. Pa. j
Strom Thurmond {R. , S. C. )
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90TIx CONGPti1~JSS
YST SI~.SSION
Calendar No. 519
S. 1035
[lae~part N~a.534]
IN TIIE S]~~NATE Qr TIIE UNITED STATES
Pr~~RU.~R~ 21, 1967
Mr. I~~RVIN (for himself, Mr. BnrtTrr.~rr, Mr. Bn~n, Mr. BIBLP, 1VIr. BRZ:tvsTr~,
Mr. BROOIZT, MI?. BuRDICIi, Mr. Bn:n of Virgiliia, Mr. CARLSON, Mr.
CIIURCII, Mr. CLnRI~, Mr. CGGrxR, D'Lr. DIIiI~SPN, Mr. DODD, Mr. DGMINICI~,
Mr. EASTLAND, MT. 1' ANNIN, Mr. FONG, Mr. GRUENING, Mr. HANSLN, Mr.
IInTPiLLD, IVIr. II[I.L, MI', MOLLINGS, Mr. IIRUSI~A, l~'Ir. INGiJY1';, Mr. JORDAN
of North Carolina, ll-Ir. JORDAN of Iclaho, Mr. Lnusclli;,lVlr. Lorrc of Mis-
souri, Mr. MAGNUSON, Mr. DIcCARTnY, Mr. McGovrRN, Mr. McINTYRr';, Mr..
MRTCALP, NTr. MILLr,R, Mr. MONTOYny 1VIr. Moss, Mr.1VIUNDr, Mr. Musz~iz';,"
Mr. Nrl.soN, Mr. P~~.Ar,soN, Mr. Prz;.cY, 1VIr. PP.OUTY, ZVIr. PANDOLPII, Mr.
SCOTT, Mr. S~4TATIII:RS, Mr. SPARI~MrlN, Mr. SPONG, Mr. TALMAnaz';, M
TIIURMOND, Mr. TOVV~,R, ML'. ~I~YDINGS, 1\'II'. ~VILLInMS Of New Jersey, Mr.
YARI30ROUGII, and Mr. YoI,TNG of Noxtlx Dakota) introduced the following
bill; which was read twice and referred to the Committee on the Judiciary
1LUGUST 21,1~JG7
Peported by Mr. Is a very real threat to our American way of life.
In my present position as secretar~T of the Civil Service
Commission of the City of .L~Tew Yorl~., I have taken steps to
propa5e the inclusion of se`reral .of thy, concepts of your bill
', into the rules and regulations of the city civil service com-
mission.
Passage of S. 1035 will signify -congressional recognition of the
threats to iirzdividual privacy posed by an advanced technology and by
increasingly more complex organizations. .illustrating these trends is
the greatly expanded. use of computers and govermnental and private
development of vast systems for :Ghe efficient gathering of information
and for data storage and. retrieval?While government enjoys the bene-
fit of these developments, there is at the same time an urgent neod for
defining the areas of individual liberty and privacy which should be
aexempt from the unwarranted intrusions facilitated by scientific
techniques.
As Prof. Charles Reich of Yale Law School has stated, this bill
"~;could be a significant step fors~rard in defining the right of privacy
Today."
"One of the most important tasks which faces the Congress and
.State legislatures in the next decade is the protection of the citizen
ri,gainst invasion of privacy," states Prof. Stanley Anderson of the
University of California, Santa Barbara: "No citizens," in his opinion,
"are in more immediate-, danger of incursion into private affairs than
~G'rovernment employees. When enacted the bill tivill provide a bulwark
ref protection against such incur~;ions."
S. 1035 is based on several premises which the subcommittee
investigation has proved. valid for purposes of enacting this legislation.
The first is that civil servants clo not surrender the basic rights and
liberties w]aich are their due as citizens under the Constitution of the
United States by their .action in. accepting Government employment.
Chief arno:ng these constitutional protections is the first amendment,
which protects the employee to privacy in his thoughts: beliefs. and
tittitudes, to silence in his. action and participation or his inaction and
nonparticipation in community wife and civic affairs. This principle is
the essence of constitutional liberty in a free society.
The constitutional focus of the bill was emphasized by Senator
Arvin in t:}ie following terms when he introduced S. 1035 on February
21:
If this bill is to have anyy~ meaning for those it affects, or
serve as a precedent for tb.ose who seek guidance in these
matters, its purpose must be phrased in constitutional terms.
Otherwise its goals will be lost.
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PROTECTING PRIVACY AND RIGHTS OF FEDERAL EMP S
We must have as our point of reference the constitutional
principles which guide every official act of our Federal Gov-
ernment. Ibelieve that the Constitution, as it was drafted
and as it has been implemented, embodies a view of the citi-
zen as possessed of an inherent dignity and as enjoying cer-
tain basic liberties. Many current practices of Govermnent
affecting employees are unconstitutional; they violate not
only the letter but the very spirit of the Constitution.
I introduced this bill originally because I believe that, to
the extent it has permitted or authorized unwarranted inva-
sion of employee privacy and unreasonable restrictions on
their liberty, the Federal Government has neglected its
constitutional duty whero its own employees are concerned,
and it has failed m its role as the model employer for the
Nation.
Second, although it is a question of some dispute, I hold
that Congress has a duty under the Constitution not only to
consider the constitutionality of tho laws it enacts, but to
assure as far as possible that those in the executive branch
responsible for administering thelaws adhere to constitutional
standards in their programs, policies, and administrative
techniques.
The committee believes that it is time for Congress to forsake its
reluctance to tell the executive branch how to treat its employees.
When so many American citizons are subject to unfair treatment, to
being unreasonably coerced or required without warrant to surrender
their liberty, their privacy, or their freedom to act or not to act, to
reveal or not to reveal information about themselves and their private
thoughts and actions, then Congress has a duty to call a statutory halt
to such practices. It has a duty to remind the executive branch that
even though it might have to ex end a little more time and effort to
obtain some favored policy goal, the techniques and tools must be
reasonable and fair.
Each section of the bill is based on evidence from many hundreds
of cases and complaints showing that generally in the Federal service,
as in any similar organizational situation, a request from a superior
is equivalent to a command. This evidence refutes the argument that
an em~~loyee's response to a superior's request for information or
action is a voluntary response, and that an employee "consents" to
an invasion of his privacy or the curtailment of his liberty. Where his
employment opportunities are at stake; where there is present the
economic coercion to submit to questionable practices which are
contrary to our constitutional values, thou the presence of consent or
voluntarism may be open to serious doubt. For this reason the bill
makes it illegal for officials to "request" as well as to "require" an
employee to submit to certain inquiries or practices or to take certain
actions.
Each section of the bill reflects a balancing of the interests involved
The interest of the Government in attracting the best qualified
individuals to its service; and its intorest in pursuing laudable goals
such as protecting the national security, promoting equal employ-
ment opportunities, assuring mental health, or conducting successful
bond-selling campaigns. There is, however, also the interest of the
individual in Protection of his rights and liberties as a private citizen.
When he becomes an employee of his Government, he has a right to
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PROTECTIrTG PRI4ACY AND- RIGHTS OF FEDERAL EMPLOYEES
expect that the policies and practices applicable to him will reIlect
the best values of his society.
The balance of interests achieved assures him this right. While it
daces no absolute prohibition on Government inq~uries, S. 1035 does
Fissure that restrictions on his rights and liberties as a Government
~rnployce ~~a~e reasonable ones.
As Sonator I$ible stated:
`Chere is a. line between what is Fedc,ral business and what
is personal business, and Congress musr, draw that line. 'hire
right of privacy must be spelled out.
't'he ~~~eight crf evidence, as Se,~rator Fong has said: "points to the
fact that tfre invasions of privacy under threats and coercion and
economic iui;imi.datiorr are rampant in orir I{ ederal civil service system
today. The degree of privacy :in the hives of our civil servants is small
enough as it is, and it is still shrinking with further advances in tech-
nical know--hoFV. That taiese citizens are being forced by economic
c;,ercion to surrender this precious liberty in order to obtain and hold
jobs is an invasion of privacy which should. disturb every Americt rather than subject
their families to any such unwarranted invasion of their right
to privacy, that Chore are seriously considering other em-
ployment outside of Government
The bill .will reduce to reasonable proportions such inquiries as the
following questionnaire,. which many thousands of employees have
periodically been required to submit.
(Ruestionnairo follows:)
CONFIDENTIAL STATEMENT OF EMPLOYMENT AND FINANCIAL INTERE5Y5
(FOR USE 0Y REGULAR GOVERNMENT EMPLOYEES)
List the names of eII corporations, companibs, (inns, or ocher
bus enterprises, partnerships, onprolit organ zation s, and
edu e['onel, o other institutions: (a) with which you are con-
nectedas an employee, officer, owner, dicenor, member, trustee,
partner, adviser, o consul[ent; or (b} in which you have any
continuing financial interests, through a pension or retirement
NAME AND KIND OF
ORGANIZATION (Use
Pert ! deefanerlpne
where appilce6le)
~
ADDRESS
POSITION IN OROANI iA TION
(Uea Parf I(s) des/Qra (lone,
ft eppl[ceble,
NATURE OF FINANCIAL
INTEREST, e.a?. STOCKS.
PRIOR INCOME (Use Pert I(b)
~ (c) deaianarlone If app/tcsblaJ
List the names a( your creditors other than those to wham you
may be indebted by reason of a mortgage on propec[y which you
occupy as a pecsonel residence or to whom you may be indebted
List your iaterese in real property or eights in lands, other than property which ypu occupy as a personal residence, li noner~ write
NONE.
NATURE OF INTEREST, s. p.,
OWNERSHIP, MORTGAGE,
LIEN, IN VESTMENT TRUST
TV PE OF PROPERTY, e.a.,
RESIDENCE, HOTEL, APARTMENT,
UNDEVELOPED LAND
plan, sh~red'fncome, o other errangemen[ as a result of arty
ran[ ar prio employment or business or professional as-
ociation; or (c) in which you have any Financial inreresc
through the ownership of stuck, stock options, bonds, securi-
ties, oc other arrangements including-tmsts. If none, write
NONE.
for current and ordinary household and living expenses such
as household furnishings, anromobile, education, vacation,
and simil er expenses, If none, write NONE.
[f any information is w be supplied 6y other persons, c.g.,
[ruscee, atmrney, accountant, relative, pica a indicate the
name and address of such persons, the date upon which you
requested that the informntion be supplied, add~ihe nature of
subject matter involved. if-none, write NONE. -
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26 PROTECTING PRIVACY AND R:[GH'1'S OF :I'EDEftAL EMPLbYEES'
The vagueness of the standards for requiring such a broad surrender
of privacy is illustrated by the Civil Service Commission's regulation
applying this to any employee whose duties .have an "economic impact
on anon-Federal enterprise."
Also eliminated will be duestionnaires asking empla~ees to list
"all assets, or everything you ar.~d your immediate family own, in-
cluding datE; acquired and cost or fair market value at acquisition.
(Cash in banks, cash anywhere else, due :from others-loans, etc.,
automobiles,. securities, real estate, cash surrender of life insurance;
personal effects and household furnishings and other assets.)"
!The view of the president of the United Federation of Postal Clerks
reflected thc; testiinon.y of many witnesses endorsing sections 1 (i)
and (j) of the bill..
If the conflict-of-interest questionnaire is of doubtful value
in preventing conflict of interest, as we believe, we can only
'; conclude that it does not meet the test of essentiality and that
it should be proscribed as an unwarranted invasion of em-
,I ployee privacy. Such value a~. it may have in focusing em-
!, ployee attention upon the problem of conflict of interest and
', bringing to light honest oversights that may lead to conflict of
interest could surely be achieved by drawing attention to
the 26 or more laws pertaining to conflict of interest or by
more jealous information activities on the part of manage-
ment.
The complex problem of preserving the confidential nature of such
reports tivas described by officials of theiVationalAssociationof Internal
Rey enue Employees:
The present abundance of financial ctuestionnaires pro-
vides ample material for even more abusive personnel
'; practices. It is almost inevitable that this confidential
Information cannot remain confidential. Typically, the
financial questionnaire is filed with an employee's immediate
supervisor. The net worth stf?tements ultimately go into
'.Inspectioli, but they pass through the hands of local per-
sonnel administrators. vPe have received a great number of
'disturbing reports-as have 'you-that this inforlation
about employees' private affairs Is being used for improper
..purposes, such. as enforced retirement and the like.
Inadequacies in agency procedures for obtaining such information
from employees and for reviewing and storing it, are discussed in the
Subcommittee report for the b9th Congress, 2d Session. Widely dis-
parate attitudes and practices are tilso revealed in a Subcommittee
study contained in the appendix of the printed hearings on S. 3779.
The bill will make such complaints as the following unnecessary in
the future conduct of the Federal Government:
DEAR SPN9TflR ~'RVIN7 I am writing t0 applaud the Stand y0U have
taken on the :new requirement that federal employees in certain
grades and categories discloso their financial holdings to their im-
mediate_ superior. Having been a civil service employee for 26 years,
and advanced from GS-4 to GS-15, and been cleared for top secret
during World War II, and because .I currently hold a position that
involves the disposition of hundreds of thousands of the taxpayers'
money, it is my conviction that my morality and trustworthiness are
sires y a matter of record in the files of the Federal Government.
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PROTECTING PRIVACY AND RI
The requirement that my husband's financial assets be rc~~orted,
as well as my otivn assets and those we hold jointly, was particularly
offensive, since my husband is the head of our household and is
not employed by Government.
You. mag}it also be interested in the fact that it required 6 hours of
after-hours work on our part to hunt up all the information called for
and prepare the report. Since the extent of our assets is our private
business, it was necessary that I type the material myself, an added
chore since I am not a typist.
Our assets have been derived, in the main, from laying aside a
portion of our earnings. At our ages (64 and 58) tive would be far less
deserving of respect had we not made the prudent provisions for our
retirment which our assets and the income thoy earn represent. Yet
this reporting requirement carries with it tho implication that to
have "clean hands" it would bo best to have no assets or outside,
unearned income when you work For the Fedegral Governm*n*.
For your information I am a GS-15, earnin X19,415
Thank you for spoaking out for the continually maligned civil
servant.
Sincerely yours, _~_
Dear Senator Ervin: I am a GS-12 career employee with over 15
years service.
The highest moral and ethical conduct has been my goal in each
of my Positions of employment and I have found this to be true iif a
vast ma}ority of my fello`v workers. It may be true a few people do
plit material gain ahead of their ethics but generally these people are
in the higher echelons of office where their influence is much. greater.
Our oflce has recently directed each employee from file clerk to
the heads of sections L-o file a "Statement of Financial Interest." As
our office has no programs individuals could have a financial interest
in and especially no connections with FIIA I feel it is no one s business
but my own what real estate I own. 1. do not have a FIIA mortgage
or any other real property and have no ot:itside employment, hence
have nothing to hide by filing a blank form. Few Government ~~ urkers
can afford much real prot~erty. The Principal of reporting to Big
Brother" in every phase of your privato life to me is very degrading,
highly unethical and very questionable as to its effectiveness. if I
could anal did use my Position in some tivay to make a profit L would
be stupid to report it on an agency inquiry form. What makes officials
think reporting. tivill do away with graft?
When the directive camp ou.t many man-hours of productive work
were lost in discussions and griping. Daily since that date at, some
time durinb the day SO? ~ ood" exams les t~ ets even tth ye obj eci,ed oto
filed their reports as b 1
this inquiry.
No single thing tivas ever asked of Government em Flo ees that
caused such a decline in their morale. We desperately need a "bill of
rights" to protect ourselves from any further invasion of our private
lives.
Fifteen years ago I committed myself to Government service be-
cause: (a) I felt an obligation to the Govermnent due to my education
under the GI bill, (b) I could. obtain freedom from pressure5'of unions,
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PRO'T'ECTING PRIVACY AND R:[GHTS OF FEDERAL EMPLOYEES
(c) I could obtain freedom from invasion of m.y private life and (d) I
ti~~ould be given the opportunity 1;o advance based solely on my pro-
fessional ability and not on joersonal politics,. At this point I certainly
regret my decision to make the Government my cox?eer.
Sin ce:rely,
Dear Si:N.~TOR: I WTitO to beg your support of a "Bill of Rights"
to` protect Federal employees from official snooping which ~i=as in-
troduced by Senator Ervin of North Carolina.
I am a veteran of two wars and have orders to a third war as a
ready reservist. And I know why I serve in these wars: that is to pre-
vent the forces of tyranny from invading America.
VOW, as a Federal employee I must fill ouut a questionnaire giving
details of my financial st;~,tus. This is required if I am to continue
working. I know that this :information can be made available to every
official in Washington, including hose who want to regulate specific
details of my life.
Now I a:m no longer a free American. For example, I can no longer
buy stock of a foreign company because that country may be in
disfavor with officials of the right or left. Andl I cannot "own part of
America" by buying common stock until an "approved list" is pub-
lished by my superiors.
T can never borrow money because an agent may decide that debt
makes me susceptible to bribery by agents of an enemy power. Nor
do I dare own property lest some official ma3T decide I should sell or
rent to .a person or group not of m3T choosing.
Tn short, I am no longer free to plan my ov;rn financial program for
the'! future security of my family. In one day I eras robbed of the
freedom for which~I fought ttivo wars. This is a sickening feeling, you
may be surd.
It seems plain that a deep, moral issue is involved here that con-
cerns every citizen. If this thing is allowed to continue, tomorrow or
next year every citizen may come icuder the Tnquieition. The dossier
on every citizen will be on file for the use of any person or group having
eno~igh overt or covert po~~~er to gain access to them.
Sincerely,
In August 1966 Federal employees ivho were retired from the armed
services were Mold to com.pl.ete and return within i days, with their
social security numbers, a ] 5-page questionnaire, asking, among
other things:
How much did you earn in 1965 in wages, salary, com-
missions, or tips from all jobs?
', How much did you earn in 1965 in profits or fees from
'working in yo~ir own business, professional practice, partner-
ship, or farm?
How much did you receive in 1965 from social security,
pensions (non-military), rent (minus expenses), interests or
dividends, unemployment insurance, welfare payments, or
from any other source not already entered?
How much did other member:; of dour family earn in 1965
in wages, salary, commissions or tips? (Before any deduc-
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bons.) (For this question, a family consists of two or more
persons in the same household who are related to each other
~y blood, marriage, or adoption.) If the exact amount is not
known, glve your best estimate.
How much did other members of your family earn in 1965
in profits or fees from working in their own business, pro-
fessional practices, partnership, or farmY
How much did any other member of your family receive in
1965 from social security, pensions, rent (minus expenses),
interest or dividends, unemployment insurance, welfaro pay-
ments; or from any other source not already entered?
RIGHT TO COUNSEL
Section 1(k) of the bill guarantees to Federal workers the op-
portunity of asking the presence of legal counsel, of a friend or other
person when undergoing an offitcial interrogation or investigation that
could lead to the loss of their jobs or to disciplinary action.
The merits of this clause are manifold; not least of which is that
uniformity and order it will bring to the present crazy quilt practices
of the various agencies concerning the right to counsel for employyees
facing disciplinary investigations or posslble loss of security clear-
ances tantamount to loss of employment. The Civil Service Commis-
sion regulations are silent on thls critical issu?. In the absence of
any Commission initiative or standard, therefore, the employing
agencles are pursuing widely disparate practices. To judge from the
questionnaires and other evldence before the subcommlttee, a few
agencies appear to afford a legitimate right to counsel, probably
many more do not, and still others prescribe a "right" on paper but
hedge it in such a fashion as to discourage its exercise. Some ap-
parently do not set any regulatory standard, but handle the problem
on an ad hoc basis.
On a matter as critical as this, such a pointless diversity of practice
is poor policy. So far as job-protection rights are concerned, all I~'ederal
employees should be equal.
A second anomaly in the present state of affairs derives from recent
developments in the law of the sixth amendment by the Supreme
Court. In view of the decisions of Miranda v. Elrizona, 384 U.S. 436
and Escobedo v. Illinois, 378 U.S. 478, it is clear that any person
(including Federal employees) who is suspected of a crime is absolutely
entitled to counsel before being subjected to custodial interrogation.
Accordingly, some agencies, such as the Tnternal Revenue Service,
acknowledge an unqualified right to counsel for an employee suspected
of crime but decline to do the same for coworkers threatened with the
loss of their livelihoods for noncriminal reasons. In the subcommittee's
view, this discrimination in favor of the criminal suspect is both bad
personnel policy as well as bad law. It would be corrected by this sec-
tion of the bill.
The ultimate justification for tho "right-to-counsel" clause, how-
ever, is the Constltution itself. There is no longer any serious doLtbt
that Federal employees are entitled to due process of law as an incident
of their employment relation. Once, of course, the courts felt other-
wise, holding that absent explicit statutory limitation, the power of the
executive to deal with employees was virtually unfettered.
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The doctrinal underpinning of this rule wa-s the 19th-cent~iry notion
that the employment relation is .not tangible "property." Both the
role and its underpinnin.~' have now been reexamined. The Supreme
Curt in recent years has emphasized the necessity of providing
procedural due process where a man isdeprived of his job or livelihood
by governmental action.
-While the courts have as yyet had no occasion to articulate a specific
right to counsel in the?employment relationship, there can obviously
be: no doubt that the right. to counsel is of such a fundamental character
that it is among the essential ingredients- of due process. What is at
strike for an: .employee in a discharge proceeding-often including
personal humiliation, obloquy and penury-is just as serious as that
involved in a criminal trial. This is not to suggest that all the incidents
of !our civilized standard of a fair trial can or should be imported into
Federal discharge proceedings. But if we are to-have fair play for
Fedet?al employees, the right of counsel is a sine qua non. It is of a
piece with the higLiest traditions, the fairest_ laws, and the soundest
po]icy ghat this country has produced. t1nd, in the judbment of -this
subcommittee, the clear a.fFii?mation of this basic right is very long
overdue. ~ .
The need for such protection was confirmed a,t the hearings by all
representatives of Government erri~~loyee organizations and unions.
The president of the National Association of fetter Carriers
testified:
It is a practice in the }postal inspection service, .when
an employee is called in for +luestiomng by the inspectors
on a strictly postal matter that does not involve a felony,
to deny the right of counsel.. The- inspectors interrogate
the employee at length. and, at the completion of the rote-rro-
gation, ane of the inspectors writes out a statement and
press~.u?es the employee to sign it before he leaves the room.
We have frequently asked the postal insE~~ection service to
;permit these employees to have counsel present at the time
', of the interrogation. 'Phe righ~_t for such- counsel has been
'denied in all except a few cases. If the employee is charged
with a felony, then, of coarse, the law taper over and the right
for counsel is clearly established but in other investigations
and interrogations no counsel is permitted.
5'everal agencies contest that right to coin sel is now granted in
formal adverse action proceedings and that appeals procedures make
this. section. unnecessary for informal questioning. Testimony and
complaints from ern.ployees indicate that this machinery does not
effectively secure tho oppox?tunity of the employee to defend himself
early enough in tLie investigation to allow a meanino~ful defense.
'l"he predicament of postal employees as described at the hearings
reA~cts the SitYration Ln other agencies as reported in many individual
cases sent to the subcommittee. While it is undoubtedly true that in.
some sisn}ale duestioning, counsel may not h~e necessary, in many
matters lvhere interrogation ~~~i1I result in disciplinary action, faihire
to have counsel at the first level reacts against the employee all the
tivay' up through tlae appeal alid revie~~r. In the case of a postal em-
ployee, the subcommittee was told-
The first level is at the ~~-orking foreman's level. IIe is the
author of the charges; than the case proceeds to the post-
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master, who appointed the foreman and, if the individual is
found guilty of the charge at the first level, it is almost in-
evitable that this position will be sup ported on the second
level. 'L'he third level is the regional ~evel, and the pulicy
there is usually that of supporting the local postmaster. A
disinterested party is never reached. The fonrt,h level is the
Appeals Board, composed of officials appointed by the
Postmaster General. In some. cases, the regron will overrule
the postmaster, but certainly the individual does not have
ti~=hat one could style ~n impartial appeals procedure.
Employees charged with n.o crime have been subjected to intensive
interrogation by Defense Department investigators who ask intirn.ate
questions, make sweeping allegations, end threaten dire consequences
unless consent is given to polygraph tests. Employees have been
ordered to confess orally- or to ~~u?rte and sign statements.-Such inter-
vie7vs have been conducted after denial of the employee's request for
presence of supervisor, counsel, or friend, -and in several instances the
interrogations have resulted. in revocation of a security clearance, or _
denial of access to classified infprrnation ~by transfer or_reassinment,
with the resrdting loss~of promotion opportunities.
Witnesses festified that employees have no recoltrse against the
consequences of formal chlirges based can information and statements
acquired during a preliminary investigation. This renders meaningless _
the distinction t:Irged by the Civil Service Commission between formal
and informal proceedings.
ExcErTlorts
'i'he bill, under section 7, does not apply to the Federal Bureau
of Investigation. Furthermore, section ~ provrdes that notl>ing in the
act will prohibit an official of the Central Intelligence Agency and
the National Security Agency from requesting any employee or appli-
caut to take a polygraph test or a p5ychologrcal test, or to provide
a personal financial statement, desigriecl to elicit the personal informa-
tion protected under subsections 1(e), (f), (i), and (j). In such cases,
the Director of the Agency must make a personal finding with regard
to each individual to be tested or examined that such test or informa-
tion is required to protect th.e national security.
ENPOI{CEMENT
Enforcement of the rights guaranteed in sections 1 and 2 of the bill is
lodged in the administrative and civil remedies and sanctions of sec-
tions 3, 4, and 5. Crucial to enforcement of the act is -the creation of
an independent Board on Employee Rights to determine the need
for disciplinary action against civilian and military offenders under
the act and to provide relief from violations.
Testimony at the hearings as tivell as investigation of complaints
have demonstrated that in the area of employee rights, a right is
only as secure as its enforcement. There is overwhelming evidence
that employees have heretofore frequently lacked appropriate remedies
either in the courts or the Civil Service Commission for pursuing
rights which belong to them as citizens.
Under the remedies afforded by sections 3, 4, and 5 of the bill, an
employee who believes his rights are violated ender the act has
several courses of action:
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', (1) He may pursue a remedy through the agency procedures
established to enforce the act, but the fact that he does not
:choose to avail himself of these does not preclude exercise of
his right i;o seek other remedies.
(2) He may register h.is complaint with the Board on Employee
Rights and obtain a hearing. If he loses there, he may appeal to
'the district court, which has the power to examine the record
as a whole and to affirm, modify, or set aside any determination or
order, or to require the Board to take any action it was authorized
to take under the act.
(3) He may, instead of going directly to the Board, institute
~, civil action In Federal district court to prevent th.e threatened
violation, or Obtain complete redress against the consequences
~f the violation.
He does not :need to exhaust any s~dministrat,ive remedies but if he
elects to pursue his civil remedies in the court under section 4, he
mad root seep .redress through the .Board. Similarly, if he initiates
actrol before the Board under section 5, he may not also seek relief
from'' the court under section 4.
Th'e bill does not affect any authority, right or privilege accorded
under Executive Order 10988, governing employee-management
cooperation in the Federal ~iervlce. To the extent that there is any
overlapping of subject matter, the bill simply provides an additional
remedy.
THE BOARD ON E~4I.PLOYEF. RIGHTS
As a result of hearings on S. 3779, the section creating a Board on
Employee Rights was added to the bill for introduction as S. 1035.
Employees have complained that administrative grievance pro-
cedures have often pro Jed ineffective: because they are cumbersome,
time-consuming, and weighted on the sido of management. Not only
do those who krreak the rules go unpunished :many times, but the
fearful tenor of letters and telephone calls from throughout the
country indicate that employees fear reprisals for noncompliance
with improper :requests or for filing of complaints anal grievances.
Oral and wrrtten directives of warning to this effect have been verified
by the subcommittee. Section 1(e) of the bill, therefore, prevents
reprisals for exercise of rights granted under the act and in such event
accords the individual cause for complaint before the Board or the
court.;
Corcerning the original bill in the 89th Congress, which did not
provide for a board, representatives of the 14th department of tho
American Federation of Government .Employees commented that the
remedies are the most important aspects of such ;~, bill because "unless
due process procedures are explicitly provided., the remaining pro-
vision~ of the bi l may be easily ignored or cixcu.mvented by Federal
personnel management. As a matter of fact, we believe, the reason
employees' rights have been eroded so rapidly and so devastatingly
in the last few years is the absence of efficient, expeditious, uniform,
and legislatively well defined procedures of due process in the execu-
tive departments of the h~ederal Government."
An independent and nonpartisan Board is assn-.red by congressional
panic}pction in :its selection a:nd by the fact that no member is to be
a government employee. Provision is made for congressional moni-
tormg through detailed reports.
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Senator Ervin explained the function of the Board established by
section 5 as follows:
The bill sets u~ a new independent Federal agency with
authority to receive complaints acid make rulings on com-
plaints-complaints of individual employees or unions rep-
resenting employees. This independent agency, which would
not be subject m any way to the executive branch of the
Government, would be authorized to make rulings on these
matters in the first instance. It would make a ruling on
action in a particular agency or department that is an alleged
violation of the provisions of the bill, tivith authority either
on the part of the agency or the part of the individual or on
the part of the union to take an api~eal from the ruling of this
independent agency to the Federal court for judicial review.
'Throughout its study the subcommittee found that a major area
of concern is the tendency in the review process in the courts or
agencies to do no more than examine the lawfulness of the action or
decision about tivhich the employee has complained. For purposes of
enforcing the act, sections 3, 4, and 5 assure adequate machinery for
processing complaints and for prompt and impartial determination of
the fairness and constitutionality of general policies and practices
initiated at the highest agency levels or by the Civil Service Com-
mission or by Executive order.
Finding no effective recourse avainst administrative actions and
policies which they believed unfair or in violation of their rights,
individual employees and their families turned to Congress for redress.
Opening the hearings on invasions of privacy, Senator Ervin stated:
Never in the history of the Subcommittee on Constitu-
tional Rights have we been so overwhelmed with personal
complaints, phone calls, letters, telegrams, and office visits.
In all of our investigations I have never seen anything to
equal the outrage and indignation from Government em-
ployees, their families, and their friends. It is obvious that
appropriate remedies are not to be found in the executive
branch.
The complaints of privacy invasions have multiplied so
rapidly of late that it is beyond the resources of Congress and
its staff to repel effectively each individual official encroach-
ment. Each new program brings a now wave of protest.
Prof. Alan Westin, director of the Science and Law Committee of
the Bar Association of the City of New York, testified that these
complaints "have been triggered by the fact that we do not yet have
the kind of executive branch mechanism by which employees can
lodge their sense of discomfort with personnel practices in the Federal
Government and feel that they will get a fair hearing, that they will
secure what could be called `employment due process.' "
To meet this problem, Professor Westin proposed an independent
board subject to judicial review, and with enforcement power over a,
broad statutory standard governing all invasion of privacy. Although
it is continuing to study this proposal, the subcommittee has tempo-
rarily rejected this approach m the interest of achieving immediate
enforcement of the act and providing administrative remedies for its
violation. For this reason it supports the creation of a limited Board
on Employee Rights,
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Porhaps one- of the most important section~~ of the bill, if not the
most important section, accarding to the United Federation of Postal
Clerks, is the pro~rision establishing the Bo~crd. The subcommittee
u-as told-
It would appear absolutely e=sential that any final legisla-
,ion enacted into law must necessarily include such apro-
'vision. We can offer no suggestions for improvement of this
ection. As presently constituted the section is easily under-
stood; and the most excellent and inclusive definition of the
proposed "Board on F.mployeea' Rights" which could pos-
'sibly be enacted into 1awr. It defines the right of employees to
.challenge violations of the proposed act; defines the procedures
,involved, as well as the authority of the Board, penalties for
'violation of the act, as u-e11 as establishing the right of judicial
review for an aggrreved party, and fnally provrdes for con-
'gressional review, and in effect, an annual audit by the
Congress of all complaints, decisions, orders, and other re-
lated information resulting from activities and operations of
'the proposed act.
Sanctions
Tile need for sanctions against ofl~ending officials has been evident
throlghout the subcommittee's investigation of flagrant disregard.
of basic rights and unpunished flaunting of administrative guidelines
and'; prohibitions. It was for this reason that S. 3779 of the 89th
Congress and S. :1035, as introduced, contained criminal penalties
for Qlfenders and t~fforded broad civil remedies .and penalties.
Reporting on the experiences of the American. Civil Liberties Union
in such employee cases, Lawrence Speiser testified:
In filing complaints with agencies, including t}ie Civil
Service Commission, the Arm3T and the Navy, as I have
iduring the period of time I have worked hf;re in Washington,
~I have never boon informed of any disciplinary actuou
taken against any investigator for asking improper questions,
for engaging in irrrproper investr=;ative techniques, for barring
'.counsel when. a person }rad ;ti ri;'ht to have counsel, or for a
.violation of aaiy number of things that you have in this
bill. l~Zaybe some was taken, but I cert.~,inly couldn't get
(that information out of the agencies, after making the
Icomplaints. I would suggest that the bill a.1so encompass
provision for disciplinary action that u-oulcl b? taken against
',Federal employees uTho violaf=e ar3y of these rights that yogi
'have set out in the bill.
Olher? witnesses also pointed to t1~e need for the disciplinary nreas-
ures~ afforded by the powers of -an independent Board to determine
the kneed for corrective action arld ;punishment, and felt they would
be r~rore effective than. criminal penalties.
Ir} view of -the difficulty of :filing; c-riminal charges and obtaining
pros~eution and conviction of executive branch officials which might
render the criminal enforcement provision meaningless for employees,
a subcommittee a,rrcendmont h-as deleted -the criminal penalties in
section 4 from.the bill as reported. -
A~though the -Civil Service Commissioiu~ and the executive agencies
have advocated-placing such adrrcir~istrati.ve- remedies within th.e
civil service u~ievance and appeals s stom the subcommittee believes
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that the- key to effective enforcement of the unique rights recognized
by