CHRONOLOGY & STATUS OF ERVIN BILL
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Collection:
Document Number (FOIA) /ESDN (CREST):
CIA-RDP81-00818R000100050002-7
Release Decision:
RIFPUB
Original Classification:
K
Document Page Count:
17
Document Creation Date:
December 16, 2016
Document Release Date:
August 1, 2005
Sequence Number:
2
Case Number:
Publication Date:
September 11, 1972
Content Type:
REPORT
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An item of pending business before Congress when it returns from
recess will be conference committee action on the "Ervin bill" rider to
the Civil Rights Commission legislation. The CSC is tackling the sticky
proeedural issue of "germaneness." If this issue is lost and the Ervin bill
will remain in some form they will press for amendments which will include
specific exemptions for CIA, NSA and the FBI.
Former Representative now Judge Poff spoke to Chairman Celler about
our particular problems with the bill and Poff along with the staff of the
Post Office and Civil Service and Judiciary Committees recommend that you
address correspondence along the lines of the attached letter to Celler to
make this a matter of record. Our letter was reviewed by the CSC which
has no objection to it and I have coordinated it with the DDS and OGC.
We also plan to ask Chairmen Hebert and Mahon to speak to Celler on our
behalf.
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ERVIN BILL HANDOUT
A. Chronology & Status of the Bill
B. One-Page Summary of Effect on CIA
C. More Detailed Analysis
D. Hampton Letter to Celler
E. Legislation (H. R. 12652)
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11 September 1972
CHRONOLOGY & STATUS OF ERVIN BILL
(Constitutional Rights of Government Employees)
On 8 December 1971, S. 1438, which was reported by the Senate
Judiciary Committee on 6 December 1971, was approved by the Senate,
without debate.
The bill was referred to the Hanley Subcommittee of the House Post
Office and Civil Service Committee, which, unlike the Senate Constitutional
Rights Subcommittee, took extensive current testimony which led to the
introduction of a clean bill, H. R. 11150, specifically exempting CIA, NSA,
and FBI and making some, but not all, of the changes sought by the Civil
Service Commission. The Hanley Subcommittee has not formally acted on
the matter, however.
On 4 August 1972, the substance of S. 1438 was once again approved by
the Senate as a rider to legislation extending the Civil Rights Commission,
H. R. 12652 (attached). On 16 August, the House requested a conference with
the Senate on H. R. 12652 and appointed Representatives Celler, Brooks,
Hungate, and Hutchinson as conferees. The Senate has yet to appoint its
conferees:
--Chairman Hampton has strongly opposed the adoption of the Ervin
bill rider in a letter to Chairman Celler (attached).
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--Apparently, Celler has agreed to Senator Ervin's request for an
up or down vote in the House on the legislation. This could come in
the form of a test under the rule of germaneness when the conference
report is submitted for approval to the House.
--It is understood that the Civil Service Commission, as a fallback
position, has prepared amendments to alleviate objectionable features
from the legislation. The amendments would exempt from the legis-
lation CIA, NSA, and FBI.
--The Ervin bill (1) authorizes direct access to the courts by a
complaining applicant or employee without the need to first exhaust
administrative remedies (the Judicial Conference has strongly opposed
this feature in the past), and (2) makes the alleged offending supervisor
personally liable in a suit which could result in a reward of monetary
damages. (The mere threat of personal law suits would obviously
inhibit effective and vigorous management and would open up the doors
for vindictive or harassing litigation.) Other objectionable features
are commented upon in the attachments.
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The purpose clause of the National Security Act of 1947 (P. L. 80-253)'
states that: "In enacting this legislation, it is the intent of Congress to
provide a comprehensive program for the future security of the United
States;.... "
The Act then goes on to establish the Central Intelligence Agency and
the position of the Director of Central Intelligence and in Section 102(c)(3)
specifically charges the DCI with responsibility "... for protecting intelligence
sources and methods from unauthorized disclosure...., It
The CIA Act of 1949 (P. L. 81-110) grants the DCI authority to protect
such sources and methods by exempting the Agency 'r.. , from the provisions.. .
of any... law which require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed
by the Agency...:
S. 1438 raises a serious question of statutory interpretation concerning
possible conflict between S. 1438 and the authorities and responsibilities now,
reposed in the Director by the provisions of law referred to above.
S. 1438 specifically authorizes adversary procedures which pose a
serious paradox--the Agency must either remain silent in the face of
unfounded allegations (with the alleged offending officer taking the consequences
of the- sanctions embodied in the bill), or it must divulge information which it
is obligated by statute to protect, and disclosure of which might damage the
national intelligence effort.
A detailed analysis and explanation of the adverse impact of the bill on
the fundamental security interests of the Agency is attached. In sum they
make clear that enactment of the bill without a full exemption for CIA and
other members of the intelligence community such as NSA would be a most
serious obstacle to the effective protection of intelligence sources and methods.
Without a complete exemption, S. 1438 would seriously weaken the Agency's
efforts to prevent penetration by a hostile intelligence service, to ensure that
its employees are suitable in all respects for employment in this sensitive
Agency, and in general make it much more difficult for the Director of Central
Intelligence to discharge his responsibilities under existing law.
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Effect of Certain Provisions of S. 1438
Section 1 (b). Prohibits taking notice of attendance or lack of attendance
at any assemblage, discussion, or lecture held by any officer of the Executive
Branch, or by any outside. parties of organizations to advise, instruct or
indoctrinate any civilian employee in respect to any matter other than the
performance of official duties.
Effect:
The language is so broad that it could prohibit an agency
noting the attendance of an employee at meetings or gatherings
of subversive and radical groups designed to undermine the
Government of the United States.
Section 1 (d). Prohibits requiring an employee to report his unofficial
outside activities duties unless reason to believe a conflict with official duties.
Effect:
This section is of primary importance to security agencies
which for security reasons are concerned with outside activities
of employees. Contacts with foreign officials are to be reported as
a matter of information to protect the employee should the official
be a member of an intelligence service. Similarily, security
agencies must review publications and speeches of employees in
advance to insure that there is no inadvertent disclosure of classified
information.
Section 1 (e). Prohibits requiring or requesting any applicant or
employee to submit to interrogation concerning: his personal relationship with
any person related to him by blood or marriage, his religious beliefs or
practices, or his attitude or conduct with respect to sexual matters. Prohibits
the use of psychological testing into these same areas. These questions may
be asked only by a physician to determine if an employee is suffering from
mental illness. An employee may be informed of a specific charge of sexual
misconduct and afforded an opportunity to refute the charge. Section 6 provides
CIA and NSA the 'use of psychological testing in the proscribed areas on the
basis of a personal finding by the Directors or their designees- in each case
that the information is necessary to protect theenational security.
Effect:
Psychological testing in these areas is- an important part of
the total screening process to weed out applicants with undesirable
traits. The exemption provided by Section 6 does not recognize
that psychological screening is an integral part of the processing
in every case.
#h WtlX W ~ ,, i 4. 4N. ~w Fy~4M Rd w~~a!
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Section 1 (f). Prohibits the use of a polygraph test designed to elicit
from an applicant or employee information as stated in Section 1 (e) above.
Section 6 provides CIA and NSA use of the polygraph in these proscribed areas
on the same basis as above.
Effect:
As with psychological testing, polygraph tresting is of
primary concern to security agencies who have found it to be an
invaluable supplement to field investigations but uniquely effective
in detecting certain latent types of security vulnerabilities. The
exemption provided by Section 6 does not recognize that polygraph
testing is an integral part of processing in every case,
Section l (i). Prohibits requesting any employee to disclose his total
financial worth or liabilities. Excepted are employees who make final
determinations with respect to claims requiring expenditure of federal funds.
Also excepted are reports for determining liabilities or obligations imposed
by law. CIA and NSA under Section 6, may inquire into the financial matters
of an employee or applicant after a finding by the Directors or their designees
in each case that the information is necessary to protect the national security.
Effect:
The broad language could prohibit inquiring into such
matters as credit union loans, health insurance reimbursements,
and other programs designed for the welfare of the employee,
not directly related to national security and not covered by the
exemption granted CIA and NSA.
Section 1 (j). Prohibits requesting financial disclosure from those
employees excepted under the first proviso of subsection (i) above other than
specific items tending to indicate a conflict of interest.
Effect:
Full financial disclosure assists the employee and the
Government in making a difficult decision as to conflict of
interest. Without full disclosure, this burden apparently is
placed entirely upon the employee.
Section 1 (k). Prohibits requiring an employee, under investigation for
misconduct, to submit to interrogation which could lead to disciplinary action
without the presence of counsel or other person of his choice if he so requests.
In the case of CIA and NSA, counsel must be either another employee of, or
approved by, the agency involved. This right inures to the employee when
first questioned and does not require that the employee be accused of any
wrongdoing before he may request presence of counsel or friend.
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Effect:
This section is of concern to all agencies and could
lead to a serious deterioration of employee discipline. If a
supervisor asks an employee for an explanation of consistent
tardiness the employee is then entitled to counsel. This is
of even more concern to the security agencies which may have
to question an employee regarding activities related to
security matters.
Section 1 (1). Makes it illegal to discharge, discipline, demote, deny
promotion, relocate, reassign, or otherwise discriminate against an employee
by reason of his refusal or failure to submit or comply with any requirement
made unlawful by this act.
Effect:
This section, combined with Section 4 below, could
seriously undermine the authority of any agency to conduct its
business. For example, any employee being transferred could
block the transfer with a suit alleging a violation of this act until
such time as the case is brought to trial and it is proven that the
transfer is for the benefit of the Government and is not a
disciplinary action.
Section 4. Permits any employee or applicant who alleges that an
officer of the Executive Branch has violated or threatened to violate provisions
of the act to bring a civil action in the district courts.
Effect:
This section with section 1 (1) is most serious. With the
written consent of any person aggrieved, a employee organiza-
tion may intervene in such action. This could establish a basis for
jurisdictional conflicts between competing unions. Further, this
section and Section 5 establish two new forums for an employee
to contest his termination. Since court action is against the
offending supervisor rather than the department or agency; the
practical. result is litigation between employees. This can expose
supervisors to continued harassment by disgruntled employees
resulting in a serious breakdown in discipline and reluctance
of qualified employees to accept supervisory responsibility. With
respect to applicants, this section has most serious implications.
Any applicant who is not hired for the position he feels qualified to
fill can initiate. a suit. Further, subversives or radical groups
could file suits for the sole purpose of harassment.
nd~6o:sw tia;.
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Section 5. Establishes an independent Board on Employees' Rights
to provide applicants or employees with an alternative means of obtaining
administrative relief from violations of the act.
Effect:
Creates the same potential for harassment as Section 4.
If one loses his case before the Board, he can still take it to the
courts.
Section 7. Requires an employee of CIA or NSA to give his employing
agency 120 days to prevent threatened violation of the act, or redress an
actual violation of the act, before proceeding before a court of the Board on
Employees' Rights. Reaffirms statutory authority of Directors of CIA and NSA
to terminate an employee.
Effect:
The requirement for notice does not apply to CIA or NSA
applicants who have a right to bring immediate action. The potential
for statutory conflict still exists should the Directors terminate an
employee for cause and a court order reinstatement on a finding of
a violation of the act.
Section 8. Recognizes the statutory authority of the Directors of CIA
and NSA to protect or withhold certain information in the national interest.
Effect:
Information which the Directors determine must withhold
may actually provide the. only basis for refuting unfounded allegations.
Since the sanctions in the bill are against the alleged offending
employee, not the Directors, the net effect of withholding information
is to make the charged employee bear the consequences, which can
include loss of pay and termination. However, to disclose such
information with its consequential damage to the national intelligence
effort is even less acceptable.
7 71 "n
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UNITED STATES CIVIL SERVICE COMMISSION
WASHINGTON, D.C. 20415
August'10, 1972
r-
Honorable Emanuel Celler
Chairman, House Judiciary Committee
U. S. House of'Representatives
Washington, D. C. 20515
.Dear Mr. Chairman:
IN REPLY PLEASE NGFER TO
It is with grave concern that I write you concerning H. R. 12652,
a bill to extend the life of the Commission on Civil Rights. This
concern relates to the insertion entitled "Protection of Constitu-
tional Rights of Government Employees," the language of which is
.identical to S. 1438, and previous bills which have received Senate
approval..
The Civil Service Commission has reported to the Subcommittee on
Employee Benefits of the House Post Office and Civil Service Com-
mittee on S. 1438 and similar bills, and has expressed strong ob.
jections to what we regard as major faults in the bills.
We do not, I can assure you, take any exception to the stated purpose
of these bills, which is to protect civilian employees of the execu-
tive branch of the government in the enjoyment of their constitutional
rights and to prevent unwarranted invasions of their privacy. We
agree that under no circumstances should the price of Federal employ-
ment be relegation of the individual to "second class citizenship."
But we feel very strongly that the proposed legislation goes beyond
the protection of constitutional rights; that it would seriously in-
fringe the proper right and responsibility of managers to see that the
business of government is performed effectively and efficiently; that
it is completely out of keeping with long-established principles of
sound judicial administration in that it provides for summary judicial
intervention into the management of the executive branch before the
individual has exhausted his available administrative remedy, and that
the establishment of a new agency, "The Board of Employee Rights" has
a number of faults, the most notable of which is a conflict of statu-
tory responsibilities with those of the Civil Service Commission.
While our reasons for objection are stated in greater detail in my
testimony on H. R. 7199, H. R. 7969, and S. 1438 (copy attached), I
should like to highlight just a few of the problems created by the
present language. It would prevent a supervisor in a munitions storage
depot from questioning an employee about forbidden smoking on the job
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until the employee's attorney was present.- It could bar inquiries
about national security, or employee safety. It would, for all
practical purposes, negate the ethical conduct program within the
executive branch. It could preclude proper investigation of com-
plaints of discrimination because of race, religion or national
origin. By calling for a "prejudgment" by the Attorney General
before he decided whether to defend an accused Federal supervisor
in a lawsuit, it would tend to prejudice a fair hearing in court
in the case of a supervisor.who.would not be defended by the At-
torney General.
While we strongly feel that the defects are so serious that the "Pro-
tection of Constitutional Rights of Government Employees" insert to
H. R. 12612 should not become law, I believe that the legitimate pur-
poses of the insert could be achieved by a suitable, carefully drawn-,
bill. The House Post Office and Civil Service Committee has already
given much attention to, and held hearings on, this matter. I would
strongly recommend therefore that the matter be divorced from the
urgencies of H. R. 12652.
Sincerely yours,
Robert E. Hampton
.Chairman
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it can; to drive South Vietnam into the
sea acid to force the United States into
the dikes are about.
ognize Communist propaganda,
it originates in Stockholm or
the United States. These dams
Paris or
are not
ACTING PRESIDENT pro tem-
'nder the previous order, the Sen-
om Pennsylvania (Mr. Scnwznc-
that some ac
to the dikes.
the dikes. I gat
delegates seemed to
were against lettuce
and for dikes. Well, that is about as ir-
relevant and extran ous as a political
convention can be; d to carry that
politics on the floor of t e Senate is clear-
ly irrelevant and extran us.
I simply make this p 'nt to indicate
that it is about time we de ated the gen-
uine issues which affect the . United
States in foreign policy and n domestic
policy and stop this extraneo s and in-
ane nonsense whereby Americ ns allege
that the American Governmen is doing
what an American President ha : forbid-
den to be done and which is not being
done.,
Th
pore.
ator
ER) Is
10 mi
made
remarks that Mr. SCHWEIKER
hen he introduced S. 3880, the
are printed in the Routine
usiness section of the RECORD
NG PRESIDENT pro ten-
the previous order, the dis-
pore. Unde
tinguished
42 dealing with bombing
RECORD under Su
tion.)
his time to the able
chusetts?
eat are printed in the
Business section of the
my remaining time to the distinguished
Senator from Massach setts (Mr. KEN-
NEDY).
The ACTING PRESI NT pro tem-
pore. The Senator from assachusetts
Is yielded the remaining ti a of the Sen-
ator from Oklahoma, and u der the pre-
vious order, he has 15 mi tea in his
own right.
(The remarks of Mr. KENNE Y on the
submission of an amendment t S. 2507
are printed in the Rne Morning Busi-
ness section of the EcoRD Under Gun
Control Act-amend nt.)
EXTENSION OF THE COMMISSION
ON CIVIL RIGHTS
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that the Sen-
ate proceed to the consideration of Cal-
endar No. 955, H.R. 12652.
The ACTING PRESIDENT pro tem-
pore (Mr. METCALF). The bill will be
stated by title.
The legislative clerk read as follows:
A bill (H.R. 12662) to extend the life of
this Commission on Civil Rights, to expand
the jurisdiction of the Commission to include
discrimination because of sex, to authorize
appropriations for the Commission, and for
other purposes.
The ACTING PRESIDENT pro tem-
pore. Is there objection to the present
consideration of the bill?
There being no objection, the Senate
proceeded to consider the bill, which had
been reported from the Committee on the
Judiciary with amendments on page 1,
after the enacting clause, insert:
TITLE I-EXTENSION OF LIFE OF COM-
MISSION ON CIVIL RIGHTS
At the beginning of line 5, strike out
"That section" and insert "Sec. 101. Sec-
tion "; on page 2, at the beginning of line
3, change the section number from "2" to
"102"; at the beginning of line 12, change
the section number from "3" to "103"; at
the beginning of line 19, change the sec-
tion number from "4" to "104"; at the
beginning of line 23, change the section
number from "5" to "105 on page 3,
at the beginning of line 10, change the
section number from "6" to "106"; in
line 15, after the word "of", strike out
"$6,500,000" and insert "$5,500,000"; in
line 17, after the word "of", strike out
"$8,500,000" and insert "$7,000,000";
and, after line 17, insert a new title, as
follows :
TITLE II-PROTECTION OF CONSTITU-
TIONAL RIGHTS OF GOVERNMENT EM-
PLOYEES
Sac. 201. It shall be unlawful for any officer
of any executive department or any executive
agency of the United States Government, or
for any person acting or purporting to act
under his authority, to do any of the follow-
ing things:
(a) To require or request, or to attempt to
require or request, any civilian employee of
the United States serving in the department
or agency, or any person seeking employment
in the executive branch of the United States
Government, to disclose his race, religion, or
national origin, or the race, religion, or na-
tional origin of any of his forebears: Pro-
vided, however, That nothing contained in
this subsection shall be construed to prohibit
inquiry concerning the citizenship of any
employee or person if his citizenship is a
statutory condition of his obtaining or re-
taining his employment: Provided further,
That nothing contained in this subsection
shall he construed to prohibit inquiry con-
cerning the national origin or citizenship of
any such employee or person or of his fore-
bears, when such inquiry is deemed neces-
sary or advisable to determine suitability for
assignment to activities or undertakings re-
lated to the national security within the
United States or to activiies or undertakings
of any nature outside the United States.
(b) To state or intimate, or to attempt to
state or intimate, to any civilian employee of
the United States serving in the department
or agency that any notice will be taken of
his attendance or lack of attendance at any
assemblage, discussion, or lecture held or
called by any officer of the executive branch
of the United States Government, or by any
person acting or purporting to act under
his authority, or by any outside parties or
organizations to advise, instruct, or indoc-
trinate any civilian employee of the United
States serving in the department or agency
in respect to any matter or subject other
than the performance of official duties to
which he is or may be assigned in the de-
partment or agency, or the development of
skills, knowledge, or abilities which qualify
him for the performance of such duties:
Provided, however, That nothing contained
in this subsection shall be construed to pro-
hibit taking notice of the participation of a
civilian employee in the activities of any pro-
fessonal group or association.
(c) To require or request, or to attempt to
require or request, any civilian employee of
the United States serving in the department
or agency to participate in any way in any
activities or undertakings unless such ac-
tivities or undertakings are related to the per-
forirmance of official duties to which he is or
may be assigned in the department or agency,
or to the development of skills, knowledge,
or abilities which qualify him for the per-
formance of such duties.
(d) To require or request, or to attempt
to require or request, any civilian employee
of the United States serving in the depart-
ment or agency to make any report concern.
ing any of his activities or undertakings un-
less such activities or undertakings are re-
lated to the performance of official duties to
which he is or may be assigned in the de-
partment or agency, or to the development of
skills, knowledge, or abilities which qualify
him for the performance of such duties, or
unless there is reason to believe that the
civilian employee is engaged in outside ac-
tivities or employment in conflict with his
offlcal dotes.
(e) To require or request, or to attempt to
require or request, any civilian employee of
the United States serving in the department
or agency, or any person applying for employ-
ment as a civilian employee in the executive
branch of the United States Government, to
submit to any interrogation or examination
or to take any psychological test which is
designed to elicit from him information con-
cerning his personal relationship with any
person connected with him by blood or mar-
riage, or concerning his religious beliefs or
practices, or concerning his attitude or con-
duct with respect to sexual matters: Pro-
vided, however, That nothing contained in
this subsection shall he construed to prevent
a physician from eliciting such information
or authorizing such tests in the diagnosis or
treatment of any civilian employee or appli-
cant where such physician deems such in-
formation necessary to enable him to deter-
mine whether or not such individual is suf-
fering from mental illness: Provided further,
however, That this determination shall be
made in individual cases and not pursuant
to general practice or regulation governing
the examination of employees or applicants
according to grade, agency, or duties: Pro-
vided further, however, That nothing con-
tained in this subsection shall be construed
to prohibit an officer of the department or
agency from advising any civilian employee
or applicant of a specific charge of sexual
misconduct made against that person, and
affording him an opportunity to refute the
charge.
(f) To require or request, or attempt to re-
quire or request, any civilian employee of
the United States serving in the department
or agency, or any person applying for em-
ployment as a civilian employee in the execu-
tive branch of the United States Government,
to take any polygraph test designed to elicit
from him information concerning his per-
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sonal relationship with any person connected
with him by blood or marriage, or concern-
ing his religious beliefs or practices, or con-.
cerning his attitude or conduct with respect
to sexual matters,
(g) To require or request, or to attempt to
require or request, any civilian employee
of the United States serving in the depart-
ment or agency to support by personal endea-
vor or contribution of money or any other
thing of value the nomination or the elec-
tion of any person or group of persons to
public Office in the Government of the United
States' or of any State, district, Common-
wealth, territory, or possession of the United
States, or to attend any meeting held to pro-
mote or support the activities or undertak-
ings of any political party of the United
States or of any State, district, Common-
wealth, territory, or possession of the United
States.
(h) To coerce or attempt to coerce any ci-
vilian employee of the United States serving
in the department or agency to invest his
earnings in bonds or other obligations or
securities issued by the United States or any
of its departments or agencies, or to make do-
nations to any institution or cause of any
kind: Provided, however, That nothing con-
tained in this subsection shall be construed
to prohibit any officer of any executive de-
partment or any executive agency of. the
United States Government, or any person act-
ing or purporting to act under his author-
ity, from calling meetings and taking any
action appropriate to afford any civilian em-
ployee of the United States the opportunity
voluntarily to invest his earnings in bonds
or other obligations or securities issued by
the United States or any of its departments
or agencies, or voluntarily to make dona-
tions to any institution or cause.
(I) To require or request, or to attempt
to require or request, any civilian employee
of the United States serving in the depart-
ment or agency to disclose any items of his
property, income, or other assets, source of
income, or liabilities, or his personal or
domestic expenditures or those of any mem-
ber of his family or household: Provided,
however, That this subsection shall not ap-
ply to any. civilian employee who has au-
thority to make any final determination
with respect to the tax or other liability of,
any person, corporation, or other legal en-
tity to the United States, or claims which
require expenditure of moneys of the United
States: Provided further, however, That
nothing contained in this subsection shall
prohibit the Department of the Treasury or
any other executive department or agency of
the United States Government from requir-
ing any civilian employee of the United States
to make such reports as may be necessary
or appropriate for the determination of his
liability for taxes, tariffs, custom duties, or
other obligations imposed by law.
(j) To require or request, or to attempt to.
require or request, any civilian employee of
the United States embraced within the terms
of the proviso in subsection (1) to disclose
any items of his property, income, or other
assets, source of income, or liabilities, or his
personal or domestic expenditures or those
of any member of his family or household
other than specific items tending to indicate
a conflict of interest in respect to the per-
formance of any of the official duties to which
he is or may be assigned.
(k) To require or request, or to attempt
to require or request, any civilian employee:
of the United States serving in' the depart-
ment or agency, who is under investigation
for misconduct, to submit to interrogation
,which could lead to disciplinary action with-.
out the presence of. counsel or other person
of his choice, if he so requests: Provided,
however, That a civilian employee of the..
United States serving in the Central Intelli-
gence Agency or the National Security Agency
may be accompanied only by a person of his
choice who serves in the agency in which the
employee serves, or by counsel who has been
approved by the agency for access to the in-
formation involved.
(1) To discharge, discipline, demote, deny
promotion to, relocate, reassign, or otherwise
discriminate in regard to any term or condi-
tion of employment of, any civilian employee
of the United States serving in the depart-
ment or agency, or to threaten to commit any
of such as, by reason of the refusal or fail-
ure of such employee to submit to or comply
with any requirement, request, or action
made unlawful by this Act, or by reason of
the exercise by such civilian employee of
any right granted or scoured by this Act.
SEC. 202. It shall be unlawful for any officer
of the United States Civil Service Commis-
sion, or for any person acting or purporting
to act under his authority, to do any of the
following things:
(a) To require or request, or to attempt
to require or request, any executive depart-
ment or any executive agency of the United
States Government, or any officer or employee
serving in such department or agency, to
violate any of the provisions of section. 1 of
this Act.
(b) To require or request, or to attempt
to require or request, any person seeking to
establish civil service status or eligibility for
employment in the executive branch of the
United States Government, or any person
applying for employment in the executive
branch of the United States Governunent, or
any civilian employee of the United States
serving in any department or agency of the
United States Government, to submit to any
interrogation or examination or to take any
psychological test which is designed to elicit
from him information concerning his per-
sonal relationship with any person connected
with him by blood or marriage, or concern-
ing his religious beliefs or practices, or eon
cerning his attitude or conduct with respect
to sexual matters: Provided, however, That
nothing contained in this subsection shall be
construed to prevent a physician from elicit-
ing such information or authorizing such
tests in the diagnosis or treatment of any
civilian employee or applicant where such
physician deems such information necessary
to enable him to determine whether or not
such individual is suffering from mental ill-
ness: Provided further, however, That this
determination shall be made in individual
cases and not pursuant to general practice
or regulation governing the examination of
employees or applicants according to grade,
agency, or duties: Provided further, however,
That nothing contained in this subsection
shall be construed to prohibit an officer of
the Civil Service Commission from advising
any civilian employee or applicant on a
specific charge of sexual misconduct made
against that person, and affording him an
opportunity to refute the charge.
(c) To require or request, or to attempt
to require or request, any person seeking to
establish civil service status or eligibility for
employment in the executive branch of the
United States Government, or any person ap-
plying for employment in the executive
branch of the United States Government, or
any civilian employee of the United States
serving in any department or agency of the
United States Government, to take any poly-
graph test designed to elicit from him in-
formation concerning his personal relation-
ship with any person connected with him by
blood or marriage, or concerning his religious
beliefs or practices, or concerning his attitude
or conduct with respect to sexual matters,
SEC. 203. It shall be unlawful for any com-
missioned officer, as defined in section 101 of
title 10, United States Code, or any member
of the Armed Forces acting or purporting to
act under his authority, to require or request,
or to attempt to require or request, any
civilian employee of the executive branch of
the United States Government under his
authority or subject to his supervision to per-
form any of the acts or submit to any of the
requirements made unlawful by section 1 of
this Act.
SEC. 204. Whenever any officer of any ex-
ecutive department or any executive agency
of the United States Government, or any
person acting or purporting to act under his
authority, or any commissioned officer as de-
fined in section 101 of title 10, United States
Code, or any member of the Armed Forces
acting or purporting to act under his au-
thority, violates or threatens to violate any
of the provisions of section 1, 2, or 3 of this
Act, any civilian employee of the United
States serving in any department or agency
of the United States Government, or any
person applying for employment in the ex-
ecutive branch of the United States Gov-
ernment, or any person seeking to establish
civil service status or eligibility for employ-
ment in the executive branch of the United
States Government, affected or aggrieved by
the violation or threatened violation, may
bring a civil action in his own behalf or in
behalf of himself and others similarly situ-
ated, against the offending officer or person in
the United States district court for the dis-
trict in which the violation occurs or is
threatened, or the district in which the of-
fending officer or person is found, or in the
United States District Court for the District
of Columbia, to prevent the threatened vio-
lation or to obtain redress against the con-
sequences of the violation. The Attorney Gen-
eral shall defend all officers or persons sued
under this section who acted pursuant to an
order, regulation, or directive, or who, in his
opinion, did not willfully violate the pro-
visions of this Act. Such United States dis-
trict court shall have jurisdiction to try and
determine such civil action irrespective of
the actuality or amount of pecuniary injury
done or threatened, and without regard to
whether the aggrieved party shall have ex-
hausted any administrative remedies that
may be provided by law, and to issue such re-
straining order, interlocutory injunction,
permanent injunction, or mandatory injunc-
tion, or enter such other judgment or de-
cree as may be necessary or appropriate to
prevent the threatened violation, or to af-
ford the plaintiff and others similarly situ-
ated complete relief against the consequences
of the violation. With the written consent of
any person affected or aggrieved by a viola-
tion or threatened violation of section 1, 2,
or 3 of this Act, any employee organization
may bring such action on behalf of such
person, or may intervene in such action. For
the purposes of this section, employee or-
ganizations shall be construed to include any
brotherhood, council, federation, organiza-
tion, union, or professional association made
up in whole or in part of civilian employees
of the United States and which has as one of
its purposes dealing with departments, agen-
cies, commissions, and independent agencies
of the United States concerning the condi-
tion and terms of employment of such em-
ployees.
SEC. 205, (a) There is hereby established
a Board on Employees' Rights (hereinafter
referred to as the "Board"). The Board shall
be composed of three members, appointed
by the President, by and with the advice
and consent of the Senate, The President
shall designate one member as chairman.
No more than two members of the Board
may be of the same political party. No
member of the Board shall be an officer or
employee of the United States Government.
(b) The term of office of each member of
the Board shall be five years, except that
(1) of those members first appointed, one
shall serve for five years, one for three years,
and one for one year, respectively, from the
date of enactment of this Act, and (2) any
member appointed to fill a vacancy occurring
prior to the expiration of the term for which
his. predecessor was appointed shall be ap-
pointed for the remainder of such term.
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(c) Members of the Board shall be com-
pensated at the rate of $75 it day for each
day spent in the work of the Board, and
shall be paid actual travel expenses and
per diem in lieu of subsistence expenses when
away from their usual places of residence,
as authorized by section 5703 of title 5,
United States Code.
(d) Two members shall constitute a
quorum for the transaction of business.
(e) The Board may appoint and fix the
compensation of such officers, attorneys, and
employees, and make such expenditures as
may be necessary to carry out its functions.
(f) The Board shall make such rules and
regulations as shall be necessary and proper
to carry out its functions.
(g) The Board shall have the authority
and duty to receive and investigate written
complaints from or on behalf of any person
claiming to be affected or aggrieved by any
violation or threatened violation of this Act
and to conduct a hearing on each such com-
plaint. Within ten days after the receipt
of any such complaint, the Board shall fur-
nish notice of the time, place, and nature
of the hearing thereon to all interested par-
ties. The Board shall render its final decision
with respect to any complaint within thirty
days after the conclusion of its hearing
thereon.
(h) Officers or representatives of any Fed-
eral employee organization in any degree
concerned with employment of the category
in which any alleged violation of this Act
occurred or Is threatened shall be given an
opportunity to participate in each hearing
conducted under this section, through sub-
mission of written data, views, or arguments,
and In the discretion of the Board, with op-
portunity for oral presentation. Government
employees called upon by any party or by
any Federal employee organization to par-
ticipate in any phase of any administrative
or judicial proceeding under this section
shall be free to do so without incurring travel
cost or suffering loss in leave or pay; and
all such employees shall be free from re-
straint, coercion, interference, intimidation,
or reprisal in or because of their participa-
tion, Any periods of time spent by Govern-
ment employees during such participation
shall be held and considered to be Federal
employment for all purposes.
(1) Insofar as consistent with the pur-
poses of this section, the provisions of sub-
chapter II of chapter 5 of title 5, United
States Code, relating to the furnishing of
notice and manner of conducting agency
hearings, shall be applicable to hearings con-
ducted by the Board under this section.
(j) If the Board shall determine after
hearing that a violation of this Act has not
occurred or is not threatened, the Board
shall state its determination and notify all
interested parties of such determination.
Each such determination shall constitute a
final decision of the Board for purposes of
judicial review.
(k) If the Board shall determine that any
violation of this Act has been committed or
threatened by any civilian officer or em-
ployee of the United States, the Board im-
mediately (1) issue and cause to be served
on such officer or employee an order requiring
such officer or employee to cease and desist
from the unlawful act or practice which
constittues a violation, (2) endeavor to elim-
inate any such unlawful act or practice
by informal methods of conference, concilia.
tion, and persuasion, and (3) may-
(A) (i) in the case of the first offense by
any civilian officer or employee of the United
States, other than any officer appointed by
the President, by and with the advice and
consent of the Senate, issue an official rep-
rimand again such officer or employee
or order the suspension without pay of such
officer or employee from the position or of-
fice held by him for a period of not to exceed
fifteen days, and (ii) in the case of a second
or subsequent offense by any such officer
or employee, order the suspension without
pay of such officer or employee from the
position or office held by him for a period
of not to exceed thirty days or order the
removal of such officer or employee from
Such position or office; and
(B) in the case of any offense by any
officer appointed by the President, by and
with the advice and consent of the Senate,
transmit a report concerning such violation
to the President and the Congress.
(1) If the Board shall determine that any
violation of this Act has been committed or
threatened by any officer of any of the Armed
Forces of the United States, or any person
purporting to act under authority conferred
by such officer, the Board shall (1) submit a
report thereon to the President, the Con-
gress, and the Secretary of the military de-
partment concerned, (2) endeavor to elimi-
nate, any unlawful act or practice which con-
stitutes such a violation by informal meth-
ods of conference, conciliation, and persua-
sion, and (3) refer its determination and the
record in the case to any person authorized
to convene general courts-martial under sec-
tion 822 (article 22) of title 10, United States
Code. Thereupon such person shall take im-
mediate steps to dispose of the matter un-
der chapter 47 of title 10, United States Code
Uniform Code/Military Justice).
(in) Any party aggrieved by any final de-
termination or order of the Board may in-
stitute, in the district court of the United
States for the judicial district wherein the
violation or threatened violation of this Act
occurred, or in the United States District
Court for the. District of Columbia, a civil
action for the review of such determination
or order. If any such action, the court shall
have jurisdiction to (1) affirm, modify, or
set aside any determination or order made
by the Board which is under review, or (2)
require the Board to make any determina-
tion or- order which it is authorized to make
tinder subsection (k), but which it has re-
fused to make. The reviewing court shall set
aside any finding, conclusion, determination,
or order of the Board as to which complaint
is made which is unsupported by substantial
evidence on the record considered as a whole.
(n) The Board shall submit, not later than
March 31 of each year, to the Senate and
House of Representatives, respectively, a re-
port on its activities under this section dur-
ing the immediately preceding calendar year,
including a statement concerning the nature
of all ,complaints flied with it, its determina-
tions and orders resulting from hearings
thereon, and the names of all officers or em-
ployees of the United States with respect to
whom any penalties have been Imposed un-
.der this section.
(o) There are authorized to be appropri-
ated sums necessary, not in excess of $100,000
to carry out the provisions of this section.
SEC. 208. Nothing contained in this Act
shall be construed to prohibit an officer of
the Central Intelligence Agency or of the
National -Security Agency from requesting
any civilian employee or applicant to take a
polygraph test, or to take a psychological
test, designed to elicit from him informa-
tion concerning his personal relationship
with any person connected with him by blood
or marriage, or concerning his religious be-
liefs or practices, or concerning his attitude
or conduct with respect to sexual matters, or
to provide a personal financial statement, if
the Director of the Central Intelligence
Agency or his designee or the Director of the
National Security Agency or his designee
makes a personal finding with regard to each
individual to be so tested or examined that. ure containing privacy guarantees,
such test or information is required to pro-
feet the national security. I introduced this bill in 1966 in the
SEC. 207. No civilian employee of the United 89th Congress. Hearings were conducted
States serving in the Central Intelligence and staff studies were made on the
Agency or the National Security Agency, and problems. In the 90th Congress I rein-
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no individual or organization acting in be-
half of such employee, shall be permitted
to invoke the provisions of sections 4 and
5 without first submitting a written com-
plaint to the agency concerned about the
threatened or actual violation of this Act
and affording such agency one hundred and
twenty days from the date of such coin-
plaint to prevent the threatened violation
or to redress the actual violation: Provided,
however, That nothing in this Act shall be
construed to affect any existing authority of
the Director of Central Intelligence under
section 403(c), of title 50, United States
Code, and any authorities available to the
National Security Agency under section 833
of title 50, United States Code, to terminate
the employment of any employee.
SEc. 208. Nothing in this Act shall be con-
strued to affect in any way the authority of
the Directors of the Central Intelligence
Agency or the National Security Agency to
protect or withhold information pursuant
to statute or executive order. The personal
certification by the Director of the agency
that disclosure of any Information is incon-
sistent with the provision of any statute or
Executive order shall be conclusive and no
such information shall be admissible in evi-
dence in any interrogation under section
1(k) or in any civil action under section 4
or in any proceeding or civil action under
section 5
SEc. 209. This Act shall not be applicable to
the Federal Bureau of Investigation.
SEC. 210. Nothing contained in sections 4
and 5 shall be construed to prevent establish-
ment of department and agency grievance
procedures to enforce this Act, but the exist-
ence of such procedures shall not preclude
any applicant or employee from pursuing
the remedies established by this Act or any
other remedies provided by law: Provided,
however, That if under the procedures estab-
lished, the employee or applicant has ob-
tained complete protection against threat-
ened violations or complete redress for viola-
tions, such action may be pleaded in bar in
the United States district court or in pro-
ceedings before the Board on Employee
Rights: And provided further, That if an
employee elects to seek a remedy under either
section 4 or section 5, he waives his right
to proceed by an independent action under
the remaining section.
SEC. 211. If any provision of this Act or the
application of any provision to any person
or circumstance shall be held invalid, the
remainder of this Act or the application of
such provision to persons or circumstances
other than those as to which it is held in-
valid, shall not be affected.
LEGISLATIVE HISTORY OF TITLE II OF H.R. 12652
Mr. ERVIN. Mr. President, title II of -
H.R. 12652 is identical to S. 1438 which
was approved by the Senate by unani-
mous consent last December. Its provi-
sions are designed to protect the con-
stitutional rights of employees of the
executive branch and to prevent un-
warranted governmental invasions of
their privacy. I proposed the addition
of this title to the House bill to extend
the life of the Civil Rights Commission
to afford the Senate another chance to
express its desire to protect the privacy
of millions of citizens who now work
for the Government or who may apply to
work for it.
The December vote was not the first
time the Senate expressed itself on this
Issue and sent to the House this meas-
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troduced the bill with 54 cosponsors, 1438, a bill approved by the Committee in and consultants will be paid at a rate not to
and it was unanimously and favorably the First Session as an Act to protect the exceed the daily rate paid a GS-1.5, These
reported by the Committee on the Judi- civilian employees of the executive branch of provisions are comparable to those now in
repo
repo as S. 1035. On September 13, 1967, the United States Government in the enjoy- effect in other government agencies,
ciary ment of their constitutional rights and to STATEMENT
the Senate approved it by an impres- prevent unwarranted governmental inva- The Commission on Civil Rights was cre-
sive vote of 79 to 4, a vote that totaled Siena of their privacy. ated in 1957 as an independent fact-finding
90 to 4 by the time absentees were re- TITLE I-LEGISLATIVE IIISTORY agency with a two-year life span. Its power
corded. The bill was then referred to President Nixon in his State of the Union was limited to conducting studies and making
the House Post Office and Civil Service message of January 20, 1972, called for a five- recommendations to the President and Con-
Committee which did not report on it in year extension of the Civil Rights Commis- gress concerning denials of equal protection
the 90th Congress. sion and the expansion of its jurisdiction to based on race, color, religion, and national
In the 91st Congress, I reintroduced Include discrimination based on sex. origin.
the identical bill as S. 782 with 54 cospon- The Commission then drafted its proposals The Commission has since been extended
sors. Again the subcommittee considered which were introduced in the House (H.R. five times by the Congress. Its staff and pro-
it, held hearings, conducted investiga- 12652) on January 26, 1972, and in the Sen- gram have expanded, and its appropriation
ate (S. 3121) on February 3, 1972. The bills authorization has steadily climbed to its pres-
tionS, and reported the bill unanimously. were identical, calling for an extension of the ent level of $4.0 million for fiscal year 1972.
The Judiciary Committee repeated their Commission for five years, an expansion of its In the early years of its existence, the
support for the bill and again recom- jurisdiction to include sex discrimination, Commission concerned itself largely with the
mended that the bill be enacted. and an open-ended appropriation authorize- problems facing black Americans. Recently,
True to the sentiments of their con- tion. however, it has turned its attention to other
stituents and to the extensive editorial Subcommittee No. 5 of the House Judiciary minority groups, most notably Indians and
support for this privacy bill, Members of Committee held hearings on H.R. 12652 on Mexican Americans. More than 60% of its
the Senate again approved the measure, February 24, 1972. At the conclusion of the recommendations have been enacted into
hearings, the subcommittee replaced the law.
this time by unanimous consent. The bill open-ended authorization with an author- The Committee is of the view that there
was again sent to the House Post Office ization ceiling of $6.6 million for fiscal year is a continuing need for the Commission to
and Civil Service Committee whose sub- 73 and $8.6 million for fiscal years 74-78. appraise the policies of the federal govern-
committee conducted some hearings. I ' The bill as amended was passed by the House ment with respect to civil rights and to
appeared before that subcommittee and of Representatives on May 1, 1972. serve as a reliable source of information
reported on the complaints and findings S. 3121 and H.R. 12652 were referred to the for future legislative proposals.
in the Constitutional Rights Subcommit- Senate Judiciary Committee. The Subcom- The Committee also favors the inclusion
mittee on Constitutional Rights held hear- of sex discrimination as a logical expansion
tee. No further action was taken by the ings on the bills on June 16, 1972. Testimony of the Commission's jurisdiction. The Corn-
House committee in that Congress. from the Commission was received in support mission is already empowered to investigate
In 1971, for the third time, I Introduced of I-LR. 12652. Also testifying in support Of denials of equal protection on other grounds,
the employee "bill of rights" as S. 1438, the bill was the national director of the and has a working structure designed to
with 50 cosponsors. National Federation of Business and Profes- cope with such problems. The Committee
For the third time, the subcommittee sional Women's Clubs. Statements of sup- hopes, however, that the Commission's as-
and the Committee on the Judiciary port were submitted by three Senators, The sumption of new jurisdiction will not signify
unanimously recommended that it be en- Women's Equity Action League, The League a Slackening of the Commission's efforts to
of Women Voters of the United States, The deal with problems of neglected smaller
acted. And by unanimous consent, the Leadership Conference on Civil Rights. The minorities. The Committee furthermore
Senate approved this measure for the Duluth Business and Professional Women's hopes that particular attention will be given
third time. For the third Congress, the Club, and the Pennsylvania Commission on to the special problems of minority women
House has not acted. the Status of Women. No testimony or state- when the Commission turns its attention to
There has been widespread support for ments were received in opposition to the bill. the problems of sex discrimination in gen-
this measure for many years. The aforementioned communications can be eral. In short, the grant of additional juris-
found in the printed text of the hearings. diction should not be allowed to cloud the
I believe Americans today fear for The bill as amended was reported by the other important concerns of the Commission.
their privacy. and their constitutional subcommittee by a divided vote. Finally, the Committee favors the fiscal
freedoms. This bill will provide some TITLE AS AMENDED limits of $5.5 million in fiscal year 73 and
minimum statutory guarantees for mil- Title I has three primary purposes, and $7.0 million in the succeeding four fiscal
lions of citizens who work for the execu- three secondary ones. years as a more realistic estimate of the
tive branch of the Federal Government Section 4 provides that the Commission Commission's costs than those contained in
the House bill. The authorization of the
or who may apply to work for it. will make its final report to the President al year 72 was $4.0 mil-
The amendments were agreed to. and to the Congress by June 30, 1978, rather Commission mit for f fisscal million in fi$4.0 mil-
The amendments were ordered to be than January 31, 1973. This, in effect, extends 73 represents a 57.5% increase over fiscal
engrossed and the bill to be read a third the life of the Commission for five years and year 72; the $7.0 million, a 75% increase over
time. five months. fiscal year 72. These authorizations repre-expands The bill was read the third time, and Section 3 Sion to include the discrimination jurisdiction of
based dd sent, the Committee feels, amounts reason-
on sex.
ably calculated to allow the Commission to
passed. on sex. At present, the Commission's s juris- carry out its responsibilities.
Mr. ROBERT C. BYRD. Mr. President, diction is limited to investigating denials Committee has already requested an
I ask unanimous consent to have printed of equal protection based on race, color, reli- The
increase in the appropriations for fiscal year
(n othe , 2-100 RECORD , excerpt the report gion, Sect on 6 national
as amended provides a ceiling on 73 to $4.8 million without the new juris-
f the measure. explaining the purposes appropriations of $5.6 million for fiscal year diction to cover sex discrimination. The au-
of t 73, and $7.0 million for the four succeed- thorization called for in the Committee
There being no objection, the excerpt ing fiscal years. The bill as originally intro- amendment provides $.7 million for fiscal year
was ordered to be printed in the RECORD, duced contained an open-ended authoriza- 1973 in addition to this request to allow the
as follows: tion for "such sums as are necessary to carry Commission to begin its new work in the
AMENDMENTS out the provisions of this Act." The bill was area of sex discrimination and a contem-
1. Amendment No. 1 provides that Section amended in the House, however, to provide plated project on Asian-Americans. The $7.0
106, lines 11 through 15, page 3, be deleted a ceiling of $6.5 million in fiscal year 73 and million figure for fiscal years 74 through 78
$8.5 million in the four succeeding fiscal makes it possible for the Commission to ex-
and C. following inserted s lieu carrying thereof: and its efforts in the area of sex discrimina-
SEO. 106. For the purposes of f cout years. The amended provision thus represents pen and allows for future cost increases to
this Act, there is authorized to be appropri- a reduction in the authorization approved by its total program.
ated for the fiscal year ending June 30, 1973, the House of $1 million in fiscal year 73 COSTS
the sum of $5.5 million, and for each fiscal and $1.5 million in each of the succeeding
year thereafter through June 30, 1978, four fiscal years. In accordance with Section 252 of the Leg-
the sum of $7.0 million. Sections 1, 2, and 5 of the bill provide for islative Reorganization Act of 1970, the Con'i-
The amendment to Section 106 of the bill increased compensation for witnesses, com- mittee estimates the costs of H.R. 12652, as
reduces the amounts of appropriations au- missioners, and consultants, respectively. amended, in fiscal year 1973 will be $1.5 mil-
thorized for the Commission in fiscal years Witnesses will be paid at the rate paid wit- lion more than the appropriation of $4.0
1973 through 1978, as provided in the House nesses in federal courts. Commissioners will million already authorized. If the Civil
bill. be compensated at the rate of level IV of the Rights Commission is extended until Decem-
2. Amendment No. 2 adds Title II to the- Federal Executive Salary Schedule for each ber 31, 1978, as provided by the bill, the
bill, which incorporates the provisions of S. day spent in the work of the Commission, annual cost is estimated to be $7.0 million
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CONGj E - ust .If, 1972
for each of the fiscal years 1974 through
1978.
The printed hearings contain a detailed
projection made by the Commission of its
program for the next five years and its esti-
mated costs.
TITLE II-PROTECTING PRIVACY AND THE RIGHTS
OFFEDERAL INCOME
Title II is identical to the provisions of
S. 1438 which was approved by the Com-
rnittee without amendment on December 6,
1971, and which was passed ..by the Senate
by unanimous consent on December 8, It is
also identical to S. 782 of the 91st Congress
as unanimously reported by the Committee
and unanimously approved by the Senate.
This title Is designed to protect civilian em-
ployees of the executive branch of the United
States Government in the enjoyment of their
constitutional rights and to prevent unwar-
ranted governmental invasions of their priv-
acy.
The language of the Committee report on
the provisions of S. 1438 is reprinted below
as adopted by the Committee.
The references in the report on Title II
are to the numbered provisions of S. 1438 as
formerly approved by the Committee.
The section references in the legislative
analysis of Title II accord with the numbered
section of the parent bill.
PURPOSE
The purpose of Title II is to prohibit indis-
criminate executive branch requirements
that employees and, in certain instances,
applicants for Government employment dis-
close their race, religion, or national origin;
attend Government-sponsored meetings and
lecturers or participate in outside activities
unrelated to their employment; report on
their outside activities or undertakings un-
related to their work; submit to questioning
about their religion, personal relationships
or sexual attitudes through interviews, psy-
chological tests, or polygraphs; support polit-
ical candidates or attend political meetings.
The bill would make it illegal to coerce an
employee to buy bonds or make charitable
contributions. It prohibits officials from re-
quiring him to disclose his own personal
assets, liabilities, or expenditures, or those
of any member of his family unless, in the
case of certain specified employees, such
items would tend to show a conflict of inter-
est. It would provide a right to have a counsel
or other person present, if the employee wish-
es, at an interview whicl. may lead to disci-
plinary proceedings. It would accord the right
to a civil action in a Federal court for viola-
tion or threatened violation of the act, and
it would establish a Board on Employees'
Rights to receive and conduct hearings on
complaints of violation of the act and to
determine and administer remedies and pen-
alties.
STATEMENT .
The committee has found, a threefold need
for this legislation, The first is the immedi-
ate need to establish a statutory basis for
the preservation of certain rights and liber-
ties .of those who work for government now
and those who will work for it in the future.
The bill, therefore, not only remedies prob-
lems of today but looks to the future, in rec-
ognition of the almost certain enlargement
of the scope of Federal activity and the con-
tinuing rise in the number of Americans
employed by their Federal Government or
serving it in some capacity.
Second, the bill meets the Federal Govern-
ment's need to attract the best qualified em-
ployees and to retain them. As the former
Chairman of the Civil Service Commission,
Robert Ramspeck, testified:
"Today, the Federal Government affects
the lives of every human being in the United
States. Therefore, we need better people to-
day, better qualified people, more dedicated
people, in Federal service than we ever needed
before. And we cannot get them if you are
going to deal with them on the basis of sus- I believe that the Constitution, as it was
picion, and delve into their private lives, be- drafted and as it has been implemented, em-
cause if there is anything the average Ameri- bodies a view of the citizen as possessed of
can cherishes, it is his right of freedom of an inherent dignity and as enjoying certain
action, and his right to privacy. So I think basic liberties. Many current practices of
this bill is hitting at an evil that has grown Government affecting employees are uncon-
up, maybe not intended, but which is hurt- stitutional; they violate not only the letter
ing the ability of the Federal Government but the very spirit of the Constitution.
to acquire the type of personnel that we must "I introduced this bill originally because I
have in the career service." - believe that, to the extent it has permited
Third is the growing need for the beneficial or authorized unwarranted invasion of em-
influence which such a statute would provide ployee privacy and unreasonable restrictions
in view of the present impact of Federal on their liberty, the Federal Government has
policies, regulations and practices on those neglected its constitutional duty where its
of State and local government and of private own employees are concerned, and it has
business and industry. An example of the failed in its role as the model employer for
interest demonstrated by governmental and the Nation.
private employers is the following comment "Second, although it is a question of some
by Allan J. Graham, secretary of the Civil dispute, I hold that Congress has a duty
Service Commission of the city of New York: under the Constitution not only to consider
"It is my opinion, based on over 25 years the constitutionality of the laws it enacts,
of former Government service, including but to assure as far as possible that those in
some years in a fairly high managerial ca- the executive branch responsible for admin-
paoity, that your bill, if enacted Into law, will
be a major step to stem the tide of "Big
Brotherism," which constitutes a very real
threat to our American way of life.
"In my present position as secretary of the
.Civil Service Commission of the city of New
York, I have taken steps to propose the in-
clusion of several of the concepts of your bill
into the rules and regulations of the city civil
service commission."
Passage of the bill will signify congres-
sional recognition of the threats to individual
privacy posed by an advanced technology and
by increasingly more complex organizations.
Illustrating these trends is the greatly ex-
panded use of computers and governmental
and private development of vast systems for
the efficient gathering of information and for
data storage and retrieval. While Government
enjoys the benefit of these developments,
there is at the same time an urgent need for
defining the areas of individual liberty and
privacy which should be exempt from the un-i
warranted instrusions facilitated by scientific
techniques.
As Prof. Charles Reich of Yale Law School
has stated, this bill "would be a significant
step forward 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 citf-
.zen against invasion of privacy," states Prof.
Stanley Anderson of the University of Cali-
fornia, Santa Barbara. "No citizens," in his
opinion, "are in more immediate danger of
incursion into private affairs than Govern-
ment employees. When enacted the bill will
provide a bulwark of protection against such
incursions."
The bill is based on several premises which
the subcommittee investigation has proved
valid for purposes of enacting this legisla-
tion. The first is that civil servants do not
surrender the basic rights and liberties which
are their clue as citizens under the Constitu-
tion of the United States by their action in
accepting Government employment. Chief
among these constitutional protections is
the first amendment, which protects the
employee to privacy in his thoughts, beliefs
and attitudes, to silence in his action and
participation or his inaction and nonpar-
ticipation in community life 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 Ervin in the follow-
ing terms when he introduced S. 1035, on
February 21, 1967:
"If this bill is to have any meaning for
those it affects, or serve as a precedent for
those who seek guidelines in those matters,
its purpose must be phrased in constitu-
standards in their programs, policies, and ad-
ministrative techniques."
The committee believes that it is time for
Congress to forsake its reluctance to toll the
executive branch how to treat its employees.
When so many American citizens are subject
to unfair treatment, to being unreasonably
coerced or required without warrant to sur-
render 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 expend a little more time And
eflort to obtain some favored policy goal, the
techniques and tools must be reasonable and
fair.
Each section of the bill is based on evi-
dence from many hundreds of cases and com-
plaints showing that generally in the Federal
service, as in any similar organizational
situation, a request from a superior is equi-
valent to a command, This evidence refutes
the argument that an employee's response to
e superior's request for information or action
is a voluntary response, and that an em- -
ployee "consents" to an invasion of his pri-
vacy 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,
then the presence of consent or voluntarism
may be open to serious doubt. For this rea-
son 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 balanc-
ing of the interests involved: The interest
of the Government in attracting the best
qualified individuals to its service; and its
interest in pursuing laudable goals such
as protecting the national security, pro-
moting equal employment opportunities, as-
suring mental health, or conducting suc-
cessful 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 em-
ployee of his Government, he has a right to
expect that the policies and practices appli-
cable to him will reflect the -best values of his
society.
The balance of interests achieved assures
him this right. While it places no absolute
prohibition on Government inquiries, the
bill does assure that restrictions on his rights
and liberties as a Government employee are
reasonable ones.
As Senator Bible stated:
tional terms. Otherwise its goals will be lost. "There is a line between what is Federal
"We must have as our point of reference business and what is personal business, and
the constitutional principles which guide - Congress must draw that line. The right of
every official act of our Federal Government.' privacy must be spelled out."
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The weight of evidence, as Senator Fong RECORD under Statements on Introduced
has said: "points to the fact that the in- Bills and Joint Resolutions.)
vasions of privacy under threats and coercion
and economic intimidation are rampant in
our Federal civil service system today. The
degree of privacy in the lives of our civil
servants is small enough as it is, and it is
still shrinking with further advances In tech-
nical know-how. That these citizens are
being forced by economic coercion to sur-
render this precious liberty in order to obtain
and hold jobs is an invasion of privacy which The a
should disturb every American. I, therefore, follows:
belie-- that congressional. action
The national president of the National As- sup ly go e r
nee of
sociation oP Internal Revenue Employees, tional defense,
Vincent Connery, told the subcommitee of
scene during a season of rub,=b employee u--
rest, and a period of rapidly accelerating de- ment to strike out
mans among Federal employees for truly clause and insert:
ainliated, and independent alike!" nti obligation and
Similar statements endorsing the broad INSURANCE FUND rower under an equipme
--- 22 his successors acid assigns approved by the
ene
purpose of the bill were made by many Bed. 101. Purposes ---------- ------ others, including the following witnesses: Sec. 102. Definitions -------- ------ 23 Board. An oYrli must be a railroad or car John F. Griner, national president, Amer- See: 103. National Rolling Sto Infor- pooling company.
ican Federation of Government Employees. mation System ----- ------- 24 24 (8) "Railroad" means a common carrier by
E. C. Hallbeck, national president, United Sec. 104. Federal Railroad Equ pment railroad, as defined in section 1(3) of the
Federation of Postal Clerks. Obligation Insurance nd__ 27 Interstate Commerce Act, as amended, and
Jerome Keating, president, National Asso- Sec. 105. Authorization to insure a uip- includes, where determined appropriate by
elation of Letter Carriers. ment obligations ------ 28 the Board, any railroad controlled by a rail-
_. .. _ a ~.,a+~ rod ...ithin the meaning of section 1(3) (b)
(9) "Rolling stock" means any Type of new
32 or rebuilt general service railroad freight car
34 whose use is not confined to a specialized
purpose by special equipment and design or
5 other limiting features, cabooses, and stand-
ard gage locomotives. The Board may desig-
nate what types of freight cars are general
service freight oars, including, but not lim-
ited to, boxcars, gondolas, open top and cov-
(10) "Secretary" means the Secretary of
ansportation.
ORDER
The ACTING
pore. Under the
out prejudice to
Florida.
The ACTING P
The legislative cler
the roll.
ALLEN). Without objectid
dered.
OF BUSINESS
PRESIDENT pro tem.-
(Mr. CHILES) was to
zed at this time.
e roll.
proceeded to call
D. Mr. President,
CER (Mr.,
it is so Or-
ROLLING STOCK UTILIZATION AND
FINANCING ACT OF 19'72
Tl e PRESIDING OFFICER. At this
time, in accordance with the previous
order, he Chair lays before the Senate
L1Vrlar Lrbbuvlt4"rvrr va ,.nvvv...u.w... .....Y'?d-""
.Tnhn. A. McCart. operations director, Gov- Sec. 107. Issuance of notes or obilg
Civil Service Commission. Sec. 109. General Accounting Office au-
Vincent Jav- executive vice president. Fed- dit ------------------------
Francis J. Spell, president, 14th District Sec.201. Utilization index and report-_ 3
Department, American Federation of Gov- Sec 202. Interstate Commerce Commis-
.ernment Employees. sion report ---------------- 37
Lawrence Speiser, director, Washington of- Sec. 203. Department of Transportation
flee, American Civil Liberties Union. 37
Nathan Wolkomir, national president; Na- study _____________Sec.dtif Fdl Employees 204. Use of existing law ___-_-_--__- 37
tional Feeraon oeera. TITLE TITLE III-ROLLING STOCK AUTHORITY N
Sec. 305. Financing -------------------- 45 Ing tog
Audit and expenditures-----__ 51 and th
Dec. 306. Sec. 307. Conversion by public sale of Ce projects,
__1
al
Sec. 308. National Rolling Stock Infor- Such nati
matioll. Service_____________ 55 tem shall
Sec.809. Conditions and charges for use techniques
of rolling stock------------- 50 tate equita
Sec. 310. Authority of the interstate ca economical 'U
Sec. 311. Protective arrangements for 58
employees -----------------
See. 312. Actions to enforce obligations- 61
Sec. 313. Interchange of cars -----------
Sec. 314. Reports to the Congress----_- 63
Sec. 315. Separability ----------------
TITLE I-NATIONAL ROLLING STOCK IN-
FORMATION SERVICE AND FEDERAL
RAILROAD EQUIPMENT OBLIGATION
INSURANCE FUND
PURPOSES
increasing de-
peditious service to meet the
mands of the Nation's economy now and in
the years to come; and
(c) to assist in achieving full employment
by insuring adequate m oft Anecessary
merican
to transport the products
industry.
DEFINITIONS
SEc. 102. For the purposes of this Act-
(1) "Authority" means the Ro111ng Stock
Authority which may also be known as RSA.
(2) "Board" means the Federal Railroad
Equipment Obligation Insurance Board.
(3) "Car-pooling company" means a com-
pany that furnishes rolling stock to three or
more railroads on a pooling basis.
(4) "Directors" means the Board of Direc-
tors of the Authority.
(6) "Equipment obligations" means bonds,
notes, conditional sale agreements, equip-
ment trust certificates, leases, and other Ob-
ligations issued or guaranteed by railroads or
car-pooling companies to finance or refi-
nance rolling stock.
cited as the "Rolling (6) "Holder" means the holder of an equip-
. _ __ _...ept Ahet where a. hank or
for the hold .. of _z--- ----
ING STOCK IN - the bank or trust company shall be deemed
service freight cars to meet
mmerce, users, shippers, na-
oceeded to consider the
railroads and car-pooling
spect to physical character-
approving the de-
rmation shall be
or indirectly b
companies with
The PRESIDING OFFICER. At this that the purposes of this Act are- tary, the Interstate Con,m
h Chai ? till tion and dis- d other members of the p Iblic subject to
time, under the previous order, t e . (a) to improve then za an
recognizes the distinguished Senator tribution of rolling stock to meet the needs such rules as the Interstate mmerce Com-
from Florida (Mr. CHILES) for not to of commerce, users, shippers, the national mission shall prescribe to in Ire the cols-
ex~eed 15 minutes. defense, and the consuming public; fidentiality of certain types o competitive
(The remarks of Mr. CHILES On the (b) to assist railroads in acquiring adds- information supplied for use in connection
tc k to rovide fast and ex- with the system.,
introduction of S. 3881 are printed in the tional rolling s c p
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