PROTECTION OF PRIVACY AND THE RIGHTS OF FEDERAL EMPLOYEES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100060021-5
• Release Decision: RIPPUB
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• Document Page Count: 25
• Document Creation Date: December 16, 2016
• Document Release Date: February 1, 2005
• Sequence Number: 21
• Publication Date: March 7, 1974
• Content Type: OPEN

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Maech 7, 1974 CONGRESSIONAL RECORD SENATE S 3041
a good procechlre to clear up the misun-
art A of title II. There
all of the rest of the
ere possible to re-
it on over to the
derstanding on
is broad support
bill. I wish that it
tam n that and to pa
House of Representati es; nevertheless,
I think that we can di this very ade-
quately and still come b k in 10 days.
I ask the chairman of t Committee
on Interior and Insular Affai , if I may
get his attention, am I corr t in un-
derstanding that it automaticall returns
to the Senate floor in 10 days?
Mr. JACKSON. The Senator is
rect. I will make the motion, or ma
unanimous-consent request either
to that effect.
In order to handle the matter properly,
I am advised that we should have the
specific date. If we exclude the recess
dates, the time it is to be reported back
would be Monday, March 25. I will make
the request that way, and then there will
be no dispute that it automatically comes
back.
Mr. President, I ask unanimous con-
sent that S. 1017 be rereferred at this
time to the Committee on Interior and filer this sectio
-Insular Affairs, with instructions to re-,/ exceeds the full
port the bill back, as amended or oth-' the applicant sha
erwise, on March 25, 1974. , fund for the excess.
SEG. 4. The term "a
The PRESIDING 010FICER. With9lt used in this Act inclu
objection, it is so ordered.
cor-
a
north 88 degrees 40 minutes west 268.8 feet;
thence south 0 degrees 28 minutes 30 sec-
onds west 1,262.9 feet along a fence line;
thence north 89 degrees 46 minutes west
364.2 feet; thence south 89 degre s 06 min-
utes 30 seconds west 133.2 feet; t ence north
east 1,323.2
ince north 0
feet, more or
1 degree 17 minutes 30 secon
feet thence east 4.34 feet; t
degrees 06 minutes east 46
less to the point of beginni
SEC. 2. The Secretary s
posit of a sum of mo
sufficient to cover estynated administrative
costs of this Act. If kdonveyance is not made
pursuant to this 46t, and the administra-
tive costs exceed the deposit, the Secretary
shall bill the applicant for the outstanding
amount, but if/the amount of the deposit
exceeds the actual administrative costs, the
Secretary shalt refund the excess.
SEC. 3. Ng/ conveyance shall be made un-
ss applicition for conveyance is filed with
Secretary within six months of the date
pre'val of this Act and unless within
e specified by him payment is made
ecretary of (1) administrative costs
nveyance and (2) the fair market
e interest to be conveyed. The
the payment required shall be
between the amount deposited
ount required to be paid un-
If the amount deposited
ount required to be paid,
be given a credit or re-
g.
11 require the de-
y which he deems
th
of
the
to the
of tlie
vallie of
aniount o
tie differenc
jind the full
ORDER OF BUSINESS
Mr. MANSFIELD. Mr. Presidei, I ask
unanimous consent that the Sen te turn
to the consideration of Calenda No. 702,
S. 265, and Calendar Order . 701, S.
1688, in that order.
The PRESIDING OFFIC
objection, it is so ordered.
. Without
SALE OF MINERAL RI S IN CER-
TAIN LANDS I UTAH
The Senate proceede to consider the
bill (S. 265) to autho ze the Secretary
of the Interior to s certain mineral
rights in certain la is located in Utah
to the record owne thereof which had
been reported from he Committee on In-
terior and Insular ffairs with an amend-
ment on page 3, me 6, after the word
"interest", inser "to"; so as to make the
bill read:
Be it ena,cte by the Senate and House of
Representative of the United States of
America in ongress assembled, That the
Secretary of he Interior is authorized and
directed to convey, sell, and quitclaim all
mineral in rests now owned by the United
States to he record owner of the surface
and a o e-half undivided interest in the
minerals in and to the following described
land in tah County, Utah:
Begi ning at a point south 151.8 feet and
west I .27 feet from the north quarter corner
of se ion 17, township 5 south, range 2 east,
Balt eke base and meridian, and running
the e south 89 degrees, 54 minutes east
62,feet; thence north 0 degrees 06 minutes
ea 152.1 feet; thence north 89 degrees 29
nutes 41 seconds east 70 feet; thence south
0 degrees od minutes west 165.62 feet; thence
uth 89 degrees 54 minutes east 164.97 feet;
ence north 0 degrees 06 minutes east 137
eet; thence north 89 degrees 51 minutes
,east 16.5 feet; thence south 0 degrees 06
!minutes west 137 feet; thence south 39 de-
grees 20 minutes west 135 feet; thence south
51 degrees 07 minutes east 660 feet; thence
inistrative costs" as
s, but is not limited
to, all costs of (1) condu ting an exploratory
program to determine th character of the
mineral deposits in the 19,n (2) evaluating
the data obtained under the plonttory pro-
gram to determine the fair ket value of
the mineral rights to be conve d, and (3)
drient of
preparing and issuing the ins
conveyance.
Ssc. 5. Moneys paid to the Sect4tary for
administrative costs shall be paid ?tc) the
agency which rendered the service, and
deposited to the appropriation then cu nt.
Moneys paid for the minerals or mindai
interests conveyed shall be deposited in
the general fund of the Treasury as miscel
laneous receipts.
The amendment was agreed to.
The bill was ordered to be engrossed
for a third reading, read the third time,
and passed.
only four dissenting votes. On all other
occasions the bill has passed unani-
mously.
It is a bill of major importance de-
signed to protect the rights of privacy
and other fundamental rights of Federal
employees. I would like to pay tribute to
many Senators for their part in the for-
mulation of this bill over the years, and
particularly to the distinguished senior
Senator from Nebraska (Mr. HRUSKA).
The bill, as I say, is of extreme impor-
tance. The development of the bill and
the reasons for it are matters set forth
in the report of the committee. In view
of the importance of the measure, I ask
unanimous consent that the committee
report (No. 93-724) be printed in full in
the RECORD at this point.
There being no objection, the report
was ordered to be printed in the RECORD,
as follows:
PROTECTING PRIVACY AND THE RIGHTS OF
FEDERAL EMPLOYEES
The Subcommittee on Constitutional
Rights to which was referred the bill S. 1688
to protect civilian employees of the executive
branch of the U.S. Government in the enjoy-
ment of their constitutional rights and to
prevent unwarranted governmental invasions
of their privacy, having considered the same,
reports favorably thereon without amend-
ments and recommends that the bill do pass.
S. 1688 is identical to S. 1438 as unani-
mously reported by the committee and unan-
imously approved by the Senate in the last
Congress. The report on S. 1438 is therefore
reprinted below as approved by the com-
mittee. ?
PURPOSE
The purpose of the bill is to prohibit in-
discriminate executive branch requirements
that employees and, in certain instances, ap-
plicants for Government employment dis-
close their race, religion, or national origin;
attend Government-sponsored meetings and
lectures 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 po-
litical candidates or attend political meet-
ings. The bill woud make it illegal to coerce
an employee to buy bonds or make charita-
ble contributions. It prohibits officials from
requiring 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 in-
terest. It would provide a right to have a
counsel or other person present, if the em-
ployee wishes, at an interview which may
lead to disciplinary proceedings. It would
accord the right to a civil action in a Fed-
eral court for violation or threatened viola-
tion 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 reme-
dies and penalties.
STATEMENT
PROTECTION OF PRIVACY AND THE
RIGHTS OF FEDERAL EMPLOYEES
Mr. MANS.t. LLLD. Mr. President, I ask
unanimous consent that the Senate
proceed to the consideration of Calendar
No. 701, S. 1688.
The PRESIDING OFFICER. The bill
will be stated by title.
The assistant legislative clerk read as
follows:
A bill (S. 1688) to protect the civilian em-
ployees of the executive branch of the
United States Government in the enjoyment
of their constitutional rights and to prevent
unwarranted governmental invasions of
their privacy.
The PRESIDING OFFICER. Without
objection, the Senate will proceed to its
consideration.
Mr. ERVIN. Mr. President, this bill, or
rather bills in the form of the present
bill, have passed the Senate on five sep-
arate occasions in the 90th, 91st, and
92d Congresses.
This bill is cosponsored by more than
40 Senators, of all political philosophies,
on both sides of the aisle. The bill passed
the first time, in its otiginal form, with
The subcommittee has found a threefold
need for this legislation. The first is the
immediate need to establish a statutory
basis for the preservation of certain rights
and liberties of those who work for govern-
ment now and those who will work for it in
the future. The bill, therefore, not only
rernedies problems of today but looks to the
future, in recognition of the almost certain
enlargement of the scope of Federal activity
and the continuing rise in the number of
Americans employed by their Federal Gov-
ernment or serving it in some capacity.
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S 3042 CONGRESSIONAL RECORD ? SENATE March
Second, the bill meets the Federal Govern-
inent's need to attract the best qualified
employees and to retain them. As the former
Chairman of the Civil Service Commission,
Robert Ramspecic, testified:
"Today, the Federal Government affects
the lives of every human being in the United
States. Therefore, we need better people
today, better qualified people, more dedi-
cated 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 suspicion, and delve into their
private lives, because if there is anything
the average American cherishes, it is his
right of freedom of action, and his right to
privacy. So I think this bill is hitting at an
evil that has grown up. maybe not intended,
but which is hurting the ability of the Fed-
eral Government to acquire the type of per-
sonnel that we must have in the career
service."
Third is the growing need for the bene-
ficial influence which such a statute would
provide in view of the present impact of
Federal policies, regulations and practices on
those of State and local government and of
private business and industry. An example
of the interest demonstrated by, govern-
mental and private employers is the follow-
ing comment by Allan J. Graham, secretary
of the Civil Service Commission of the city
of New York:
"It is my opinion, based on over 26 years
of former Government service, including
some years in a fairly high managerial
capacity, that your bill, if enacted into law,
will be a major step to stem the tide of
Brotherisrn," 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 severst of the concepts of your
bill into the rules and regulations of the
city civil serviee commission."
Passage of the bill will signify congres-
sional recognition of the threats to individ-
ual privacy posed by an advanced tech-
nology and by increasingly more complex
organizations. Illustrating these trends is
the greatly expanded use of computers ahd
governmental and private development of
vast systems for the efficient gathering of
Information and for data storage and re-
trieval. While Government enjoys the bene-
fit 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 unwarranted in-
trusions 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
citizen against 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 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 due as citizens under the
Constitution of the United States by their
action in accepting Governmerft 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 nonpartici-
potion in community life and civic affairs.
This principle is the essence of cones its emal
liberty in a free society.
The constitutional focus of the la: was
emphasized by Senator Ervin in the 1,, ow-
ing terms when he introduced S. it-= on
February 21, 1967:
"If this bill is to have any rneani t for
those it affects, or serve as a precedi o for
those who seek guidance in these mat-terra its
purpose must be phrased in constiti etnal
terms. Otherwise its goals will be lost
"We must have as our point of rtn: ence
the constitutional principles which' ; aide
every official at of our Federal GOVeil, neut.
I believe that the Constitution, as was
drafted and as it has been implementee em-
bodies a view of the citizen as possesseo ,t an
inherent dignity and as enjoying t rtain
basic liberties. Many current practio- e of
Government affecting employees are 1 eon-
stitutional: they violate not only the etter
but the very spirit of the Constitution
"I introdnced this bill originally bee, =
believe that, to the extent it has pernnl ri or
authorized unwarranted invasion o: em-
ployee privacy and unreasonable rest r ons
on their liberty, the Federal Governing_ has
neglected its constitutional duty whi r, its
own employees are concerned, and has
failed in its role as the model emplae, e for
the Nation.
"Second, although it is a question 01 - ome
dispute, I hold that Congress has a duty
under the Constitution not only to co eider
the constitutionality of the laws it 'km acts,
but to assure as far as possible that hose
in the executive branch responsible t ad-
ministering the laws adhere to constilre mal
standards in. their Programs, policiet and
administrative techniques."
The committee believes that it is tie e for
Congress to forsake its reluctance to it the
executive branch how to treat its empl:
When so many American citizens are le niece
to unfair treatment, to being unreata =ebly
coerced or required without warrant i. -or-
render their liberty, their privacy, Or heir
freedom to act or not to act, to reveal', - not
to reveal information about thernselve and
their private thoughts and actions, :nen
Congress has a duty to call a statutor oalt
to such practices. It has a duty to re: nind
the executive branch that even that el it
might have to expend a little more tine and
effort to obtain some favored policy got the
techniques and tools must be reasonabl, and
fair.
Each section of the bill is based on eve, itace
from many hundreds of cases and comp ants
showing that generally in the Federal at e ice,
as in any similar organizational situal a, a
request from a superior is equivalent o a
command. This evidence refutes the tem-
ment that an employee's response to : eu-
perior's request for information or act: :re is
a voluntary response, and that an erne ovee
"consents" to an invasion of his pre* e or
the curtailment of his liberty. Whet, his
employment opportunities are at e eke,
where there is present the economic com :on
to submit to questionable practices ea,:ech
are contrary to our constitutional sea,
then the presence of consent or volunt cm
may be open to serious doubt. For the . ea-
son the bill makes it illegal for alai*: to
"request" as well as to "require" an ertit.. eree
to submit to certain inquiries or pro, ,ees
or to take certain actions.
Each section of the bill reflects a be ec-
ing`of the interests involved: The inter, r of
the Government in attracting the best eeal-
flied individuals to its service; and It n-
terest in pursuing laudable goals sue as
protecting the national security, proni lug
equal employment opportunities, ass ring
mental health, or conducting SUCC4 ui
bond-selling campaigns. There is, hoe, eeer,
also the interest of the individual in pr
tion of his rights and liberties as a pr ete
1 I re
citizen. When he becomes an employee of hie
Government, he has a right to expect that
the policies and practices applicable to him
will reflect the beet 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.
A Senator Bible stated:
"There is a line between what Is Federal
business end what is personal business. and
Congress must draw that line. The right
of privacy must be spelled out."
The weight of evidence, as Senator Fong
has said: "points to the, fact that the in-
vasions of privacy under threats and coer-
cion and economic intimidation are ram-
pant in our Federal civil service system to-
day. 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 technical know-how. That these citizens
are being forced by economic coercion to
surrendei this precious liberty In order to
obtain and hold jobs is an invasion of pri-
vacy which should disturb every American.
I, therefore, strongly believe that congres-
sional action to protect our civil servants is
long overdue."
The national president of the National As-
sociation of Internal Revenue Employees,
Vincent Connery, told the Subcommittee of
this proposal in the 89th Congress:
"Senate bill 3779 is soundly conceived and
perfectly limed. It appears on the legislative
scene during a season of public employee un-
rest, and a period of rapidly accelerating de-
mand among Federal employees for truly
first-class citizenship. For the first time
within my memory, at least, a proposed bill
holds out the serious hope of attaining such
a citizenship. S. $779, therefore, amply de-
serves the fullest support of all employee
organizations, both public and private, fed-
eration affiliated, and independent alike."
Similar statements endorsing the broad
purpose of the bill were made by many oth-
ers, including the following witnesses:
John F. Griner, national president. Amer-
ican Federation of Government Employees.
E. C. Rallbeck, national president, United
Federation of Postal Clerks,
Jerome Seating, president, National Asa
sociation of Letter Carriers.
Xenneth T. Lyons, national president, Na-
tional Association of Government Employees.
John A. McCart, operations director, Gov-
ernment.Employees Council of AFL-CIO.
Ron, Robert Ramspeck, former Chairman,
Civil Service Commission.
Vincent Jay, executive vice president, Fed-
eral Professional Association,
Francis J. Speh, president, 14th District
Department, American Federation of Gov-
ernment Employees.
Lawrence Speiser, director, Washington
office, American Civil Liberties Union.
Nathan Wolkomir, national president, Na-
tional Federation of Federal Employees,
LEGISLATIVE HISTORY
Following is a chronological account of
committee action, on this legislation to dale.
S. 1688 eels preceded by S. 1438 of the 92d
Congress, S. 782 of the 91st Congress, by S.
103$ of the 90th Congress, and by S. 3079 and
S. 3703 of the 89th Congress.
Violations of rights covered by the bill as
,
well as other areas of employee rights have
been the subject of intensive hearings arci
investigation by the subcommittee for the
last five Congresses.
In addition to investigation of individual
cases, the Subcommittee on Constitutional
Rights has condticted annual surveys of
agency policies on numerous aspects of Gov-
ernment personnel practices. in 1965, pursu-
ant to Senate Resolution 43, hearings were
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Mdrch 7, 1974
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CONGRESSIONAL RECORD ? SENATE S 3043
conducted on due process and improper use
of information acquired through psychologi-
cal testing, psychiatric examinations, and
security and personnel interviews.
In a letter to the Chief Executive on August
3, 1966, the subcommittee chairman stated:
"For some time, the Constitutional Rights
Subcommittee has received disturbing reports
from responsible sources concerning viola-
tions of the rights of Federal employees. I
have attempted to direct the attention of
appropriate officials to these matters, and
although replies have been uniformly cour-
teous, the subcommittee has received no
satisfaction whatsoever, or even any indica-
tion of awareness that any problem exists.
The invasions of privacy have reached such
alarming proportions and are assuming such
varied forms that the matter demands your
immediate and personal attention.
"The misuse of privacy-invading person-
ality tests for personnel purposes has al-
ready been the subject of hearings by the
subcommittee. Other matters, such as im-
proper and insulting questioning during
background investigations and due process
guarantees in denial of security clearances
have also been the subject of study. Other
employee complaints, fast becoming too nu-
merous to catalog, concern such diverse mat-
ters as psychiatric interviews; lie detectors;
race questionnaires; restrictions on commu-
nicating with Congress; pressure to support
political parties yet restrictions on political
activities; coercion to buy savings bonds; ex-
tensive limitations on outside activities yet
administrative influence to participate in
agency-approved functions; rules for writ-
ing, speaking and even thinking; and re-
quirements to disclose personal information
concerning finances, property and creditors
of employees and members of their families."
After describing in detail the operation of
two current programs to illustrate the prob-
lems, Senator Ervin commented:
"Many of the practices now in extensive
use have little or nothing to do with an in-
dividual's ability or his qualification to per-
form 'a job. The Civil Service Commission
has established rules and examinations to
determine the qualifications of applicants.
Apparently, the Civil Service Commission and
the agencies are failing in their assignment
to operate a merit system for our Federal
civil service
"It would seem in the interest of the ad-
ministration to make an immediate review
of these practices and questionnaires to de-
tertaine whether the scope of the programa
is not exceeding your original intent and
whether the violations of employee rights
are not more harmful to your long-range
goals than the personnel shortcuts involved."
?
Following this letter and others addressed
to the Chairman of the Civil Service Com-
mission and the Secretaries of other depart-
ments, legislation to protect employee rights
was introduced in the Senate. This proposal,
? S. 3703 was introduced by the chairman on
August 9, 1966, and referred to the Judiciary
Comtnittee. On August 25, 1966, the chair-
man received unanimous consent to a re-
quest to add the names of 33 cosponsors to
the bill. On August 26, 1966, he introduced
a bill similar to S. 3703, containing an
amendment reducing the criminal penalties
provided in section 2. This bill, S. 3779, was
also referred to the Judiciary Committee, and
both S. 3703 and S. 3779 were then referred
to the Subcommittee on Constitutional
Rights.
Comments on the bill and on problems
related to it were made by the chairman in
the Senate on July 18, August 9, August 25,
August 26, September 29, October 17 and 18.
1966, and on February 21, 1967.1
15ee also, Cong. Rec. Comments.
Hearings on S. 3779 were conducted before
the subcommittee on September 23, 29, 30,
and October 3, 4, and 5, 1966. Reporting to
the Senate on these hearings, the subcom-
mittee chairman made the following state-
ment:
"The recent hearings on S. 3779 showed
that every major employee organization and
union, thousands of individual employees
who have written Congress, law professors,
the American Civil Liberties Union, and a
number of bar associations agree on the need
for statutory protections such as those in
this measure.
"We often find that as the saying goes
'things are never as bad as we think they
are,' but in this case, the hearings show
that privacy invasions are worse than we
thought they were. Case after case of intimi-
dation, of threats of loss of job or security
clearance were brought to our attention in
connection with bond sales, and Govern-
ment charity drives.
"Case after case was cited of privacy inva-
sion and denial of due process in connection
with the new financial disclosure require-
ments. A typical case is the attorney threat-
ened with disciplinary action or loss of his
job because he is both unable and unwilling
to list all gifts, including Christmas presents
from his family, which he had received in
the past year. He felt this had nothing to do
with his job. There was the supervisory en-
gineer who was told by the personnel officer
that he would have to take disciplinary ac-
tion against the 25 professional employees in
his division who resented being forced to
disclose the creditors and financial interests
of themselves and members of their families.
Yet there are no procedures for appealing
the decisions of supervisors and personnel
officers Who are acting under the Commis-
sion's directive. These are not isolated in-
stances; rather, they represent a pattern of
privacy invasion reported from almost every
-State.
"The subcommittee was told that super-
visors are ordered to supply names of em-
ployees who attend PTA meetings and en-
gage in Great Books discussions. Under one
department's regulations, employees are re-
quested to participate in specific community
activities promoting local and Federal anti-
poverty, beautification, and equal employ-
ment programs; they are told to lobby in
local city councils for fair housing ordi-
nances, to go out and make speeches on any
number of subjects, to supply flower and
grass seed for beautifibtion projects, and to
paint other people's houses. When those reg-
ulations were brought to the subcommittee's
attention several weeks ago, we were told
that they were in draftdorm. Yet, we then
discovered they had already been implement-
ed and employees whose official duties had
nothing to do with such programs were being
informed that failure to participate would
indicate an uncooperative attitude and
would be reflected in their efficiency records.
"The subcommittee hearings have pro-
duced ample evidence of the outright intim-
idation, arm twisting and more subtle
forms of coercion which result when a su-
perior is requested to obtain employee par-
ticipation in a program. We have seen this
in the operation of the bond sale campaign,
the drives of charitable contributions, and
the use of self-identification minority status
questionnaires. We have seen it in the sanc-
tioning of polygraphs, personality tests, and
improper questioning of applicants for em-
ployment.
"In view of some of the current practices
reported by employee organizations and
unions, it seems those who endorse these
techniques for mind probing and thought
control of employees have sworn hostility
against the idea that every man has a right
to be free of every form of tyranny over his
mind; they forget that to be free a man must
have the right to think foolish thoughts as
well as wise ones. They forget that the tint
amendment implies the right to remain
silent as well as the right to speak freely?
the right to do nothing as well as the right
to help implement lofty ideals.
"It is not under this administration alone
that there has been a failure to respect em-
ployee rights in a zeal to obtain certain
goals. While some of the problems are new,
others have been prevalent for many years
with little or no administrative action taken
to attempt to ameliorate them. Despite con-
gressional concern, administrative officials
have failed to discern patterns of practice in
denial of rights. They seem to think that if
they can belatedly remedy one case which
is brought to the attention of the Congress,
the public and the press, that this is
enough?that the "heat" will subside. With
glittering generalities, qualified until they
mean nothing in substance, they have sought
to throw Congress off the track in its pur-:
suit of permanent corrective action. We have
seen this in the case of personality testing,
in the use of polygraphs, and all the prac-
tices which the bill would prohibit."
The Chairman of the Civil Service Com-
mission informed the subcommittee that
there is no need for a law to protect employee
rights. He believes the answer is?
"to permit executive branch management
and executive branch employees as individ-
uals and through their unions, to work to-
gether to resolve these issues as part of their
normal discourse."
It is quite clear from the fearful tenor of
the letters and telephone calls received by
the subcommittee and Members of Con-
gress that there is no discourse and is not
likely to be any discourse on these matters
between the Commission and employees.
Furthermore, there are many who do not
even fall within the Commission's jurisdic-
tion. For them, there is no appeal but to
Congress.
As for the argument that the discourse be-
tween the unions and the Commission will
remedy the wrongs, the testimony of the
union representatives adequately demolishes
that dream.
The typical attitude of those responsible
for personnel management is reflected in Mr.
Macy's answer that there may be instances
where policy is not adhered to, but "There is
always someone who doesn't get the word."
Corrective administration action, he says, is
fully adequate to protect employee rights.
Administrative action is not sufficient.
Furthermore, in the majority of complaints,
the wrong actually stems from the stated
policy of the agency or the Commission. How
can these people be expected to judge objec-
tively the reasonableness and constitutional-
ity of their own policies? This is the role of
Congress, and in my opinion, Congress has
waited too long as it is to provide the guid-
ance that is desperately needed in these
matters.
5. 1035, 90th Congress
On the basis of the subcommittee hear-
ings, agency reports, and the suggestions of
many experts, the bill was amended to meet
legitimate objectives to the scope and lan-
gauge raised by administrative witnesses
and to clarify the intent of its cosponsors
that it does not apply to the proper exercise
of management authority and supervisory
discretion, or to matters now governed by
statute.
This amended version of S. 3779 was
introduced in the Senate by the chairman
on February 21, 1967, as S. 1035 with 54 co-
sponsors.?It was considered by the Constitu-
tionaL Rights Subcommittee and unani-
mously reported with amendments by the
Judiciary Committee on August 21, 1967.
[S. Rept. No. 534, 90th Cong. 1st Sess.] The
proposal was considered by the Senate on
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September 13, 1967. and approved, with floor
amendments, by a 79 to 4 vote. After ab-
sentee approvals were recorded, the record
showed a total of 90 Members supported
passage of the bill. The amendments
adopted on the Senate floor deleted a com-
plete exemption which the committee bill
provided for the Federal Bureau of investi-
gation; instead, it was provided that the
Federal Bureau of Investigation should be
accorded the same limited exemptions pro-
vided for the Central Intelligence Agency
and the National Security Agency. A provi-
sion was added to allow the three Directors
to delegate the power to make certain per-
sonal findings required by section 6 of the
bill.
Committee amendments to S. 1035,
90th Congress
1. Amendment to section 1(a) page 2, line
13:
-Provided further, That nothing contained
in this subsection shall be construed to pro-
hibit inquiry concerning the national origin
of any such employee when such inquiry is
deemed necessary or advisable to determine
suitability for assignment to activities or
undertakings related to the national security
within the United States or to activities or
undertakings of any nature outside the
United States."'
2. Amendment to section 1(b), page 2,
line 25 strike "to" (technical amendment.)
3. Delete section 1(e), page 4, lines 1-4
(prohibitions on patronizing business es-
tablishments) and renumber following sec-
tions as sections 1(e), (ti, (g), (h), (I), (j),
(k), and (1), respectively.
4. Delete section 4, page 10, lines 12-23
(criminal penalties), and renumber follow-
ing sections as sections 4 and 5, respectively.
6. Amendment to section lila, page 4, line
25:
"Provided further, however, That nothing
contained in this subsection shall be con-
strued to prohibit an officer of the depart-
ment or agency from advising any civilian
employee or applicant of a specific charge of
sexual misconduct made against that per-
son, and affording him an opportunity to
refute the charge."
6. Amendments to section 1(f), page 4, at
lines 17 and 19, change "psychiatrist" to
"physician".
7. Amendment to section 1( k), page 7, at
line 10, change Ii) to (1).
8. Amendment to section 2( b). page 9, at
line 6 and 9, change "phychiatrist" to
-physician".
9. Amendment to section 2(b), page 9, at
line 15:
"Provided further, however, That nothing
contained in this subsection shall be con-
strued to prohibit an officer of the Civil Serv-
ice Commission 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."
10. Amendment to section 5, page 11, line
21, insert after the word "violation." the
following:
"The Attorney General shall defiend all of-
ficers or persons sued under this section who
acted pursuant to an order, regulation, or
directive, or who, in his opinion, did not will-
fully violate the provisions of this Act."
11. Amendment to section 6(1), page 16, at
line 24, strike -sign charges and specifications
under section 830 (art. 30)" and insert in
lieu thereof "convene general courts-martial
under section 222 (art, 22) " (technical
amendment).
12. Amendment to section 6(m)e page 17,
line 14, change subsection (j) to (It) (tech-
nical amendment).
13. Amendment, page 18, add new section
6:
"Sec, 6. Nothing contained in this Act shall
be construed to prohibit an officer of the Cell-
tral Intelligence Agency or of the Ns eons'
Security Agency from requesting an civil-
ian employee or applicant to take a pee aaPla
test, or to take a psychological test d( egned
to elicit from him information cone -fling
his personal relationship with any, eerson
connnected with him by blood or nr -lege,
or concerning his religious beliefs ec prac-
tices, or concerning his attitude or c ,duct
With respect to sexual matters, or to p ?vide
a personal financial statement, if the erec-
tor of the Central Intelligency Agency m the
Director of the National Security .4- ,,eney
makes a personal finding with regard,- each
Individual to be so tested or examine that
such test or information is required - pro-
tect the national security."
14. Amendment, page 18, add new set on 8,
and renumber following section as sea- on 9:
"Sec. 8. Nothing contained in sect eis 4
and 5 shall be construed to prevent etab-
lishrnent of department and agency, --riev-
ance procedures to enforce this Act, I.- the
existence of such procedures shall re pre-
clude any applicant or employee free. pur-
suing the remedies established by ta Act
or any other remedies provided by lee Pro-
vided, however, That if under the pro(' -tures
established, the employee or applicai has
obtained complete protection against eat-
ened violations or complete redress fi - vio-
lations, such action may be pleaded bar
in the United States District Court or pro-
ceedings before the Board on Enap' ,yees'
Rights: Provided further, however, 7 ,at if
an employee elects to seek a remedy ender
either section 4 or section 5, he wet s his
right to proceed by an independent etion
under the remaining section."
Comparison of S. 1035, 90th Conget e as
introduced, and 8.3779, 89th Collo
As introduced, the revised bill, S 1035,
differed from S. 3779 of the 89th Cong ss in
the following respects:
1. The section banning requiremeie a to
disclose race, religion, or national orig. as
amended to permit inquiry on citiee ?hip
where it is a statutory condition of tw ploy-
ment
2. The provision against coercion te em-
ployees to buy bonds or make chanted e do-
nations was amended to make it cleei that
it does not prohibit calling meetings tak-
ing any action appropriate to afford ti em-
ployee the opportunity voluntarily to .vest
or donate.
3. A new section providing for ad, oils-
trative remedies and penalties establi es a
Board on Employees' Rights to receit- and
conduct hearings on complaints of vk. tion
of the act, and to determine and adieu istar
remedies and penalties. There is judk. 1 re-
view of the decision under the Adrian era-
tive Procedure Act,
4. A specific exemption for the teral
Bureau of Investigation is included.
5. Exceptions to the prohibitions o eri-
vacy-ineading questions by examinatte in-
terrogations and psychological test-, are
provided upon psychiatric determin lion
that the information is necessary in the eag-
- nosis and treatment of mental illns in
individual cases, and provided that it not
elicited pursuant to general practice se reg-
ulation governing the examination or em-
ployees or applicants on the basis of tide,
job, or agency,
6. The section prohibiting requireme. is to
disclose personal financial informatior
:045-
tains technical amendments to assure that
only persons with final authority in eestain
areas may be subject to disclosure re' are-
rnents.
7. For those employees excluded frier the
ban on disclosure requirements, a net. sec-
tion (3), provides that they may orde " re-
quired to disclose items tending to aa .w a
conflict of interest.
8, Military supervisors of civilian ernr oyes
are included within the prohibitions e the
bill, and violation of the act is made a pun-
ishable offense under the Uniform Code of
Military Justice.
9. A new section 2 has been added to assure
that the same prohibitions in section 1 on
actions of department and agency officials
with respect to employees in their depart-
ments and agencies apply alike to officers of
the Civil Service Commission with respect to
the employees and applicants with whom
they des..
10. Section (b) of S. 3779, relating to the
calling or holding of meetings or lectures to
indoctrieate employees, was deleted.
11. Sece ions (c), (d), and (e) of S. 3779?
sections (le), (c), and (d) of S. 1035?con-
taining prohibitions on requiring attendance
at outsiee meetings, reports on personal ac-
tivities end participation in outside activi-
ties, were amended to make it clear that they
do not apply to the performance of official
duties or to the development of skill, knowl-
edge, and abilities which qualify the person
for his duties or to participation in profes-
sional groups or associations.
12. The crinainal penalties Were reduced
from a maximum of $500 and 6 months' on-
prisonment to $300 and 30 days.
13. Section (h) of S. 3779 prohibiting re-
quirements to support candidates, programs,
or police--; of any political party was revised
to prohibit requirements to support the
nomination or election of persons or to at-
tend meetings to promote or support activi-
ties or undertakings of any political party.
14. Other amendments of a technical na-
ture.
S. 782, 91st Congress?Comm ittee
amendments
S. 782, as introduced by Senator Ervin will;
54 cosponsors, was identical to S. 1035 of the
90th Cca .;reae. as passed by the Senate. .es
amended in Committee, it was reported to
the Semite on May 15, 1970, and passed by
unanimoes consent on May 19,
The Subcommittee met in executive se s-
sion on July 22, 1969, to receive testimony
from Riceard Helms, Director of the Central
Intelligeuxe Agency and other agency rep-
resentatiees. On the basis of this testimony
and aftei a number of meetings of subcom-
mittee members with officials of the Central
Intelliget ise Agency, the National Security
Agency, and the Federal Bureau of Investi-
gation, tile language contained in the com-
mittee amendments was drafted and meets
with the approval of the Directors of those
agencies.
Amendments
1. Amendments to section 1(a), page 2,
line 15 insert after the word "origin" the
words "or citizenship" and after the word
"employes", the words "or person, or his fore-
bears".
2. Ameedment to section 1(k), page 8, line
5 after the word "requests", strike the period
and insert the following:
: Provided, however, That a civilian employee
of she United States serving in the Central
Intelligei as Agency, or the National Secu-
rity Agency may he accompanied only by a
person of his choice who serves in the
agency ii, which the employee serves or by
counsel eho has been approved by the
agency fer access to the information in-
volved.
3. Ame sdrnent to section 6, page 18, lines
15 and le delete "or of the Federal Bureau of
Ins estig a .on".
4. Ameedment to section 6, page 18, line
25, and page 19, line 1 delete "or the Director
of the Federal Bureau of Investigation or his
designee".
5. On page 19, add a new section 7 as
follows:
"Sec. 7, No civilian employee of the United
States serving in the Central Intelligence
Agency or the National Security Agency,
and no individual or organization acting in
behalf of such employee, shall be permitted
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CONGRESSIONAL RECORD? SENATE S 3045
to invoke the provisions of sections 4And 5
without first submitting a written complaint
to the agency concerned about the threat-
ened or actual violation of this Act and
affording such agency 120- days from the
date of such complaint 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 50 U.S.C. 403(0), and any
authorities available to the National Secu-
rity Agency under 50 U.S.C. 833 to terminate
the employment of any employee."
6. On page 19, add a new section 8 as
follows:
SEC. 8. 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 execute order. The personal cer-
tification by the Director of the agency that
disclosure of any information is inconsist-
ent with the provision of any statute or
executive order Shall be conclusive and no
such information shall be admissible in
evidence in any interrogatien under sec-
tion 1(k) or in any civil action under sec-
tion 4 or in any proceeding or civil action
under section 5.
7. On page 19, add a new section 9 as
follows:
SEa. D. This act shall not be applicable to
the Federal Bureau of investigation.
S. On page 19, at line 5, renumber "SEC. 7"
as "SEc. 10" and at line 20, renumber "SEc: 8"
as "SEC. 11".
S. 1438, 92d Congress -
As introduced by Senator Ervin with 53
cosponsors, S. 1438 was identical to S. 782
of the 91st Congress as unanimously reported
by the Committee and unaimously approved
by the Senate. S. 1438 was approved by the
Committee without amendment on Decem-
ber 6, 1971, passed by the Senate by
unanithous consent on December 8, 1971, and
was referred to the House Post Office and
Civil Service Committee. There a majority
of the full committee voted to table the bill.
On August 1, 1972, upon a motion by Sena-
tor Ervin, the Committee added the text of
S. 1438 as Title II of the House-passed bill
H.R. 1t652, extending the life of the Civil
Rights Commission and expanding its
jurisdiction to include a study of the rights
of women. On August 4, 1972, the Senate
unanimously passed H.R. 12852 as amended.
This marked the fourth time in six years
that the Senate had approved the provisions
of the employee privacy bill.
The House rejected the Senate amendment
and requested a conference. The Senate con-
ferees stood by the Senate amendment until
it became apparent that it might jeopardize
passage of the entire legislation. When the
Senate passed the Civil Rights Commission
authorization, it accepted the conference
committee's decision to delete Title II from
the bill.
CfUESTIONS ON RACE, RELIGION, AND NATIONAL
ORIGIN
Many complaints received by the subcom-
mittee concerned official requests or require-
ments that employees disclose their race,
religion, or ethnic or national origin. This
information has been obtained from em-
ployees through the systematic use of ques-
tionnaires or oral inquiries by supervisors.
? Chief concern has focused on a policy in-
augurated by the Civil Service Commission
in 1966, under which present employees and
future employees would be asked to indicate
on a questionnaire whether they were "Amer-
ican Indian," "oriental," "Negro," "Spanish-
American" or "none of these." Approximately
1.7 million employees were told to complete
the forms, while some agencies including
some in the Department of Defense con-
tinued their former practice of acquiring
such information through the "head count"
method. Although the Civil Service Com-
mission directive stated that disclosure of
such information was voluntary, complaints
show that employees and supervisors gen-
erally felt it to be mandatory. Administra-
tive efforts to obtain compliance included in
some instances harassment, threats, and
intimidation. Complaints in different agen-
cies showed -that employees who did not
comply received airmail letters at their homes
with new forms; or their names were placed
on administrative lists for "follow-up" proce-
dures, and supervisors were advised to obtain
the information from delinquent employees
by a certain date.
In the view of John McCart, representing
the Government Employes' Council, AFL-
CIO:
"When the Civil Service Commission and
the regulations note that participation by
the, employee will be voluntary, this removes
some of the onus of the encroachment on an
individual's privacy. But in an organizational
operation of the size ? and complexity of the
Federal Government, it is just impossible to
guarantee that each individual's right to pri-
vacy and confidentiality will be observed.
"In addition to that, there have been a
large number of complaints from all kinds of
Federal employees. In the interest of main-
taining the rights of individual workers
against the possibility of invading those
rights, it would seem to us it would be better
to abandon the present approach, because
there are other alternatives available for
determining whether that program is being
carried out."
The hearing record contains numerous ex-
amples of disruption of employee-manage-
ment relations, and of employee dissatisfac-
tion with such official inquiries. Many told
the subcommittee that they refused to com-
plete the questionnaires because the matter
? was none of the Government's business;
others, because of their mixed parentage, felt
unable to state the information.
Since 1963, the policy of the American Civil
Liberties Union on the method of collecting
information about race has favored the head
count wherever posssible. Although the po-
licy is presently under review, the subcom-
mittee finds merit in the statement that;
"The collection and dissemination of in-
formation about race creates a conflict among
several equally important civil liberties: the
right of free speech and free inquiry, on the
one hand, and the rights of privacy and of
equality of treatment and of opportunity', on
the other. The 'ACLU approves them all. But
at this time in human history, when the
principle of equality and nondisrimination
must be vigorously defended, it is necessary
that the union oppose collection and dis-
semination of information regarding race,
except only where rigorous justification is
shown for such action. Where such collec-
tion and dissemination is shown to be justi-
fied, the gathering of information should be
kept to the most limited form, wherever pos-
sible by use of the head count method, and
the confidential nature of original records
should be protected as far as possible."
Former Civil Service Commission Chairman
Robert Ramspeck told the subcommittee:
"To consider race, color, religion, and na-
tional origin in making appointments, in
promotions and retention of Federal em-
ployees is, in my opinion, contrary to the
merit system. There should be no discrimina-
tion for or against minority persons in Fed-
eral Government employment."
As the hearings and complaints have dem-
onstrated, the most telling argument against
the use of such a questionnaire, other than
the constitutional issue, is the fact that it
does not work. This is shown by the admis-
sion by many employees that they either did
not complete the forms or that they gave in-
accurate data.
Mr. Macy informed the subcommittee:
"In the State of Hawaii the entire program
was cut out because it had not been done
there before, and it was inadevertently in-
cluded in this one, and the feeling was that
because of the racial composition there it
would be exceedingly difficult to come up
with any kind of identification along the
lines of the card that wexere distributing."
The Civil Service Commission on May 9
informed the subcommittee that it had "re-
cently approved regulations which will end
the use of voluntary self-identification of
race as a means of obtaining minority group
statistics for the Federal work force." The
Commission indicated its decision was based
on the failure of the program to produce
meaningful statistics. In its place the Com-
mission will rely on supervisory reports based
solely on observation, which would not be
prohibited by the bill.
As Senator Fong stated:
"It should be noted that the bill would not
bar head counts of employee racial extrac-
tion for statistical purposes by supervisors.
However, the Congress has authorized the
merit system for the Federal service and the
race, national origin or religion of the in-
dividual Or his forebears should have noth-
ing to do with his ability or qualifications
to do a job."
Section 1(a) of the bill was included to
assure that employees will not again be sub-
jected to such unwarranted invasion of their
privacy. It is designed to protect the merit
system which Congress has authorized for
the Federal service. Its passage will reaf-
firm the intent of Congress that a per-
son's religion, race, and national or ethnic
origin or that of his forebears have nothing
to do with his ability or qualification to per-
form the requisite duties of a Federal posi-
tion, or to qualify for a promotion.
By eliminating official authority to place
the employee in a position in which he feels
compelled to disclose this personal data, the
bill will help to eliminate the `basis for such
complaints of invasion of privacy and dis-
crimination as Congress has received for a
number of years. It will protect Americans
from the dilemma of the grandson of an
American Indian who told the subcommittee
that he had exercised his option and did not
complete the minority status questionnaire.
He did not know how to fill it out. Shortly
thereafter he received a personal memoran-
dum from his supervisor "requesting" him
to complete a new questionnaire and "re-
turn it immediately." He wrote: "I person-
ally feel that if I do not comply with this
request (order) , my job or any promotion
which comes up could be in jeopardy."
The prohibitions in section 1(a) against
official inquiries about religion, and in sec-
tion 1(e) concerning religious beliefs and
practices together constitute a bulwark to
protect the individual's right to silence con-
cerning his religious convictions and to re-
frain from an indication of his religious be-
liefs.
Referring to these two sections, Lawrence
Speiser, director, of the Washington office of
the American Civil Liberties Union testified:
"These provisions would help, we hope,
eliminate a constantly recurring problem in-
volving those new Government employees
who prefer to affirm their allegiance rather
than swearing to it. All Government em-
ployees must sign an appointment affidavit
and take an oath or affirmation of office.
"A problem arises not just when new em-
ployees enter Government employment but
in all situations where the Government re-
quires an oath, and there is an attempt made
on the part of those who prefer to affirm. It
is amazing the intransigence that arises on
the part of clerks or those Who require the
filling out of these forms, or the giving of the
statement in permitting individuals to affirm.
"The excuses that are made vary tremend-
ously, either that the form can only be signed
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S 3046 CONGRESSIONAL RECORD? &NATE March 7, 1-974
and they cannot accept a form in which "so
help me God- is struck out, because that is
an amendment, and they are bound by their
instructions which do not permit any
changes to be made on the forms at all.
"Also, in connection with the giving of
oaths. I have had one case in which an in-
vestigator asked a young man this question:
"For the purposes ofiadministering the oath,
do you believe in God?"
"It is to be hoped that the provisions of
this bill would bar practices of that kind.
The law should be clear at this time. Title
United States Code, section 1 has a number
of rules of construction, one Of which says
that wherever the word "oath" appears, that
ineaudes "affirmation," and wherever the
word "swear" appears, that includes "affirm."
"This issue comes up sometemes when
clerks will ask, "Why do you want to affirm?
Do you belong to a religious group tbat re-
quires an affirmation rather than taking an
oath?" And unless the individual gives the
right answer, the clerks won't let him affirm.
It is clear under the TOrcaso case that re-
ligious beliefs and lack of religious beliefs
are equally entitled to the protection of the
first amendment.
The objection has been raised that the pro-
hibition against inquiries into race, religion,
or national origin would hinder investigation
of discrimination complaints. In effect, how-
ever, it is expected to aid rather than hinder
in this area of the law, by decreasing the op-
portunities for discrimination initially. It
does not hinder acquisition of the informa-
tion elsewhere; nor does it prevent a person
from volunteering the information if he
wishes to supply it in filing a complaint or in
the course of an investigation.
CONTROL OF EMPLOYEE OPINIONS, OUTSIDE
ACTIVITIES
Reports have come to the subcommittee
of infringements and threatened infringe-
ments on first,arnendnient freedoms of em-
ployees: freedom to think for themselves free
of Government indoctrination; freedom to
choose their outside civic, social, and political
activities as citizens freet of official guidance;
or even freedom to refuse to participate at all
without reporting to supervisors.
Illustrative of the climate of surveillance
the subcommittee 'has found was a 13-year-
old Navy Department directive, reportedly
similar to those in other agencies, warning
employees to guard against "indirect re-
marks- and to seek "wise and mature" coun-
sel within their agencies before joining civic
or political associations.
In the view of the United Federation of
Postal Clerks:
Perhaps no other right is so essential to
employee morale as the right to personal
freedom and the absence of interference by
the Government in the private lives and ac-
tivities of its employees. Attempts to place
prohibitions on the private associations of
employees; mandatory reporting of social
contacts with Members of Congress and the
press; attempts to "orient" or "indoctrinate"
Federal employees on subjects outside their
immediate areas of professional interest; at-
tempts to "encourage" participation in out-
side activities or discourage patronage of se-
lected business establishments and coercive
campaigns for charitable donations are
among the most noteworthy abuses of Fed-
eral employees' right to personal freedom.
An eample of improper on-the-job indoc-
trination of employees about sociological and
political matters was cited in his testimony
by John Griner. president of the AFL-CIO
an-Meted American Federation of Govern-
ment Employees;
One instance of disregard of individual
rights of employees as well as responsibility
to taxpayers, which has come to my attention,
seems to illustrate the objectives of subsec-
tions (b), (c), and (d), Of section 1 e' the
Ervin bill. It happened at a large fie in-
stallation under the Department of ter +'use.
The office chief called meetings of lel,' .eent
groups of employees throughout teir day
* ? ?. A recording was played while em-
ployees listened about 30 minutes. I was
supposedly a speech made at a untie eity,
which went deeply into the importie c of
integration of the races in this 'fe ctry.
There Was discussion of the United Niei?
its?
what a great thing it was?and how here
never could be another world war. 'hen per-
son who reported this' incident made this
comment: "Think of the taxpayers' e oney
used that day to hear that record." I 'dolt
that speaks for itself.
Other witnesses were in agreeinen: with
Mr. Griner's view on the need for pi' 'ect-
ing employees now and in the future'rota
any form of indoctrination on issui* etre-
lated to their work. The Issue was dein, et at
hearings on S. 3779 in the following col equy
between the subcommittee chairman t Mr.
Griner.
If they are permitted to hold session, nch
as this on Government time and at elov-
ernment expense, they might then ala.. hold
sessions as to whether or not we shoe d be
involved in the Vietnam war or yec eher
we should not be, whether we should pull
out or whether we should stay, and / Link
It could go to any extreme under ' hose
conditions.
Of course, we are concerned with t yes.
But that is not a matter for the della rou-
tine of work.
Senator Elwin. Cad you think of an: icing
which has more direful implications or a
free America than a practice by wi a
government would attempt to indoffie inlets
any man with respect to a particula view
on any subject other than the prone: Per-
formance of his work?
Mr. GP.INER. I think if we attempted 0 do
that we would be violating the indive liars
constitutional rights.
Senator ERVIN. Is there any ,reason ? hat-
ever why a Federal civil service erce eiyee
should not have the same right to bat- his
freedom of thought on all things mid- the
sun outside of the restricted sphere the
proper performance of his work the' any
other American enjoys?
Mr. Gsrenta. No, sir.
With one complaint of atitempted ince
nation of employees at a Federal Ulster, ion,
a civil servant enclosed a memorandum ' ',ken
from a bulletin board stating the time, !lee,
and date of a lecture by a sociology peel ,ssor
on the subject of the importance of ,cial
integration. Attendance was to be vole iary
but the notice stated that a record wee d be
made of those attending or not attend .e.
Concerning such a practice, one we 'less
commented; "If I had been a Federel em-
ployee and / cared anything about my ib, I
would have been at that lecture."
Employees of an installation in Pe,
yenta complained of requirements to end
film lectures on issues of the cold war.
Witnesses agreed that taking notice at-
tendance at such meeting constituted e 'firm
of coercion to attend. Section 1(b) will :im-
inate such intimidation. It leaves untie 'ted
existing authority to use any apple)! Hate
means, including publicity, to provide em-
ployees information about meetings cola sell-
ing matters such as charily drives and " ?oci-
selling campaigns.
Section (c) protests a basic constitu nal
right of the individual employee to by free
of official pressure on him to engage Ii any
civic or political activity or under ;ing
which might involve him as a private ell sen,
but which has no relation to his Feder, em-
ployment. It preserves his freedom of thr ieht
and expression, including his right te eeep
silent, or to remain inaceive.
This section will place a statutor , bar
against the recurrence of employee em-
plaints snob as the following received by a
Member vi the Sereite,
Dear Senator : On -----, 1966, a
group of 'treasury Department administrators
were called to Miami for a conference led by
---, 'treasury Personnel Officer, with re-
gard to rew revisions in chapter 713 of the
Treasury Personnel Manual.
Over tics years the Treasury Department
has placed special emphasis on the hiring of
Negroes ander the equal employment oppor-
tunity program, and-considerable progress in
that regard has been made. However, the em-
phasis of the present conference was that our
efforts in the field of equal employment op-
portunite have not been sufficient. Under lice
leadership of Pres:dent Johnson and based
on his strung statement with regard to the
need for direct action to cure the basic causes
leading to discrimination, the Treasury De-
partment has now issued specific instruc-
tions requiring all supervisors and line man-
agers to become actively and aggressively in-
volved in the total civil rights problem.
The reguiremente laid down by chapter
713 and ne s,ppendlx include participation in
such groups as the Urban League, NAACP, et
cetera (these are named specifically) and in-
volvemern in the total community action
program, Including open housing, integration
of sehoole. et cetera.
The policies laid down in this regulation,
as verbally explained by the Treasury repre-
sentative:, at the conference, go fax beyond
any concept of employee personnel responsi-
bility previously expressed. In essence, this
regulation require,. every Treasury manager
Or superv 'or to become a social worker, both
during his official hours and on his own time.
This was only tangentially referred to in the
regulation and its appendages, but was
brought out forcefully in verbal statements
by Mr. - and . Frankly, this is
tremendously disturbing to me and to many
of the other persons with whom I have dis-
cussed the matter. We do not deny the need
for strong action the field of civil rights,
but we de sincerely question the authority of
our Government to lay out requirements to
be met oi our own time which are repugnant
to our personal beliefs and desires.
The question was asked as to what dis-
ciplinary measures would be taken against
individuals declining to participate in these
communiey action programs, The reply was
given by the equal employment officer, that
such refueal would constitute an undesirable
work attitude bordering on insubordination
and shount at the very least be reflected on
the annual efficiency rating of the employee.
The preiciples expressed in these regula-
tions ane in this conference strike me as
being of highly dangerous potential. If we,
who have no connection with welfare or so-
cial prop ems, can be required to take time
from our full-time responsibilities in our
particular agencies and from the hours nor-
mally reserved for our own refreshment and
recreation to work toward integration of
white neiehborhoods, integration of schools
by artificial mean:, and to train Negroes who
have not availed themselves of the public
schooling evailable, than it would seem quite
possible that under other leadership, we could
be required to perform other actions which
would actually be detrimental to the in-
terests of our Nation."
e I. ?
Testifying on the issue of reporting out-
side activities, the American Civil liberties
Union representative commented:
'To the extent that individuals are ap-
prehensh they arc going to have to, at some
future time, tell the Government about what
organizat inns they have belonged to or been
associated with, that is going to inhibit them
in their willingness to explore all kinds of
ideas, then willingness to hear speakers, their
wlllingne:e to do all kinds of things. That
leas almost as deadening an effect on free
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speech in a democracy as if the opportunities
were actually cut off.
Witnesses gave other examples of invasion
of employees' private lives which would be
halted by passage of the bill.
In the southwest a division chief dis-
patched a buck slip to his group supervisors
demanding: "the names * * * of employees
* * * who are participating in any activities
including such things as: PTA in integrated
schools, sports activities which are inter-
social, and such things as Great Books dis-
cussion groups which have integrated mem-
berships."
? a
* ? a ?
I a Washington office of the Department of
Defense, a branch chief by telephone asked
supervisors to obtain from employees the
names of any organizations they belonged to.
The purpose apparently was to obtain in-
vitations for Federal Government officials to
speak before such organizations.
? *, * a
Reports have come to the subcommittee
that the Federal Maritime Commission, pur-
suant to civil service regulations, requested
employees to participate in community ac-
tivities to improve the employability of mi-
nority groups, and to report to the chairman
any outside activities.
' a
In addition to such directives,^ many other
instances involving this type of restriction
have come to the attention of the subcom-
mittee over a period of years, For example,
some agencies have either prohibited flatly,
or required employees to report, all contacts,
social or otherwise, with Members of Con-
gress or congressional staff members. In many
? cases reported to the subcommittee, officials
have taken reprisals against employees who
communicated with their Congressmen and
have issued directives threatening such
action.
? * ?
The Civil Ser? vice Commission on its Form
85 for nonsensitive positions requires an in-
dividual to list: "Organizations with which
affiliated (past and present) other than reli-
gious or political organizations or those with
religious or political affiliations (if none, so
state)." ?
?
PRIVACY INVASIONS IN INTERVIEWS, INTERROGA-
TIONS, AND PERSONALITY TESTS
Although it does not outlaw all of the un-
warranted personal prying to which em-
ployees and applicants are now subjected,
section 1(e) of the reported bill will prohibit
the more serious invasions of personal pri-
vacy reported. The subcommittee believes
it will also result in limitations beyond its
specific prohibitions by encouraging adminis-
trative adherence to the principles it reflects.
It will halt mass programs in which, as
a general rule, agency officials conduct inter-
views during which they require or request
applicants or employees to reveal intimate
details about their habits, thoughts, and at-
titudes on matters unrelated to their quali-
fications and ability to perform a job.
It will also halt individual interrogations
such as that involving an 18-year-old col-
lege sophomore applying for a summer job
as a secretary at a Federal department.
In the course of an interview with a de-
partment investigator, she was asked wide-
ranging questions. For instance, regarding a
boy whom she was dating, she was asked
questions which denoted assumptions made
by the investigator, such as:
Did he abuse you?
Did he do anything unnatural with you?
You didn't get pregnant, did you?
There's kissing, petting, and intercourse,
and after that, did he foroe you to do any-
thing to him, or did he do anything to you?
The parent of this student wrote:
This interview greatly transcended the
bounds of normal areas and many probing
personal questions were propounded. Most
questions were leading and either a negative
or positive answer resulted in an appearance
of self-incrimination. During this experience,
my husband was on an unaccompanied tour
of duty in Korea and I attempted alone,
without success, to do battle with the Depart-
ment.
I called and was denied any opportunity to
review what had been recorded in my daugh-
ter's file. Likewise my daughter was denied
any review of the file in order to verify or
refute any of the record made by the State
Department interviewer. This entire matter
was handled as if applicants for State De-
partment employment must subject them-
selves to the personal and intimate questions
and abdicate all claims to personal rights
and privileges.
As a result of this improper intrusion into
my daughter's privacy which caused all
great mental anguish, I had her application
for employment withdrawn from the State
Department. This loss of income made her
college education that much more difficult.
Upon my husband's return, we discussed
this entire situation and felt rather than
subjecting her again to the sanctioned
methods of Government investigation we
would have her work for private industry.
, This she did in the summer of 1966, with
great success and without embarrassing or
humiliating Gestapo-type investigation.
Upon subcommittee investigation of this
case, the Department indicated that this
was not a unique case, because it used a
"uniform policy in handling the applications
of summer employees as followed with all
other applicant categories." It stated that
its procedure under Executive Order 10450 iS
a basic one "used by the Department and
other executive agencies concerning the
processing of any category of applicants who
wi'l be dealing with sensitive, classified
material." Its only other comment on the
case was to assure that "any information
developed during the course of any of our
investigations that is of a medical nature,
is referred to our Medical Division for proper
evaluation and judgment." In response to a
request for copies of departmental guide-
lines governing such investigations and in-
terviews, the subcommittee was told they
were classified.
Section 1(e) would protect every employee
and every civilian who offers his services to
his Government from indiscriminate and un-
authorized requests to submit to any test
designed to elicit such information as to the
following:
My sex life is satisfactory.
I have never been in trouble because of
my sex behavior.
Everything is turning out just like the
prophets of the Bible said, it would.
I loved my father.
' I am very strongly attracted by Members
of my own sex.
I go to church almost every week.
I believe in the second coming of Christ.
I believe in a life hereafter.
I have never indulged in any unusual sex
practices.
- I am worried about sex matters.
I am very religious (more than most
people).
? I loved my mother.
? I believe there is a Devil and a Hell in
afterlife.
I believe there is a God.
Once in a while I feel hate toward mem-
bers of my family whom I usually love.
I wish I were not bothered by thoughts
about sex.
The subcommittee hearings in 1965 on
"Psychological tests and constitutional
rights" and its subsequent investigations sup-
port the need for such statutory prohibitions
on the use of tests.
In other case, the subcommittee was told,
a woman was questioned for 6 hours "about
every aspect of her sex life?real, imagined,
and gossiped?with an intensity that could
only have been the product of inordinately
salacious minds."
The specific limitation on the three areas
of questioning proscribed in S. 1035 in no
way is intended as a grant of authority to
continue or initiate the official eliciting of
personal data from individuals on subjects
not directly proscribed. It would prohibit in-
vestigators, or personnel, security and medi-
cal specialists from indiscriminately requir-
ing or requesting the individual to supply,
orally or through tests, data on religion, fam-
ily, or sex. It does not prevent a physician
from doing so if he has reason to believe
the employee is "suffering from mental ill-
ness" and believes the information is neces-
sary to make a diagnosis. Such a standard
is -stricter than the broad "fitness for duty"
standard now generally applied by psychia-
trists and physicians In the interviews and
testing which an employee can be requested
and required to undergo.
There is nothing in this section to prohibit
an official from advising an individual of a
specific charge of sexual misconduct and af-
fording him an opportunity to refute the
charge voluntarily.
POLYGRAPHS
Section 1(f) makes it unlawful for any
officer of any executive department or agency
or any person acting under his authority to
require or request or attempt to require, or
request any civilian employee or any appli-
cant for employment to take any polygraph
test designed to elicit from him information
concerning his personal relationship with any
person connected with him by blood or mar-
riage, or concerning his religious beliefs, prac-
`tices or concerning his attitude or conduct
with respect to sexual matters. While this
section does not eliminate the use of so-
called lie detectors by Government, it as-
sures that where such devices are used for
these purposes it will be only in limited areas.
John MeCart, representing the Government
Employees Council of AFL-CIO, supported
this section of the bill, citing a 1965 report
by a special subcommittee of the AFL-CIO
executive council that:
_
The use of lie detectors violates basic con-
siderations of human dignity in that they
involve the invasion of privacy, self-incrim-
ination, and the concept of guilt until proven
innocent.
Congressional investigation 1 has shown
that there is no scientific validation for the
effectiveness or accuracy of lie detectors. Yet
despite this and the invasion of privacy in-
volved, lie detectors are being used or may
be used in various agencies of the Federal
Government for purposes of screening ajmli-
cants or for pursuing investigations.
This section of the bill is based on com-
plaints such as the following received by the
subcommittee:
When I graduated from college in 1965, I
applied at NSA. I went to 2 days of testing,
which apparently I passed because the inter-
viewer seemed pleased and he told ine that
they could always find a place for someone
with my type of degree.
About 1 month later, I reported for a
polygraph test at an office on Wisconsin
Avenue in the District or just over the Dis-
trict line in Maryland. I talked with the
polygraph operator, a young man around 25
years of age. He explained how the ma-
chine worked, etc. He ran through some
of the questions before he attached the wires
to me. Some of the questions I can remem-
ber are?
"When was the first time you had sexual
relations with a woman?
1 Hearings and reports on the use of poly-
graphs as "lie detectors" by the Federal
Government before a Subcommittee of the
House Comimttee on Government Opera-
tions, April 1964 through 1966.
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CONGRESSIONAL RECORD?SI NATE March 7, 1974
"How many times have you had sexual
intercourse?
"Have you ever engaged in homosexual
activities?
"Have you ever engaged in sexual activi-
ties with an animal?
"When was the first time you had inter-
course with your wife?
you have intercourse with her before
you were married? How many times?"
He also asked questions about my parents,
Communist activities, etc. I remember that
thought this thing was pretty outrageous,
but the operator assured me that he asked
everybody the same questions and he has
heard all the answers before, it just didn't
mean a thing to him. I wondered how he
could.ever get away with asking a girl those
kinds of questions.
When I was finished, I felt as though I had
been in a 15 round championship boxing
match. I felt exhausted. I made up my mind
then and there that I wouldn't take the job
even if they wanted me to take it. Also. I
concluded that I would never again apply
for a job with the Government, especially
where they make you take one of these tests.
Commenting on this complaint, the sub-
committee chairman obserVed:
"Certainly such practices should not be
tolerated even by agencies charged with se-
curity missions. Surely, the financial, scien-
tific, and investigative resources of the Fed-
eral Government are sufficient to determine
whether a person is a security risk, without
strapping an applicant to a machine and sub-
jecting him to salacious questioning. The
Federal Bureau of Investigation does not use
personality tests or polygraphs on appli-
cants for employment. I fail to see why the
National Security Agency finds them so fas-
cinating."
COERC/ON TO BUY BONDS AND CONTRIBUTE TO
CAUSES
The hearing record and subcommittee com-
plaint files amply document the need for
statutory protections against all forms of
coercion of employees to buy bends and con-
tribute to causes. Involved here is the free-
dom of .the individual to invest and donate
his money as he sees fit, without official coer-
cion. As the subcommittee chairman ex-
plained:
"It certainly seerns to me that each Federal
employee, like any other citizen in the United
States, is the best judge of his capacity, in the
light of his financial obligations, to partici-
pate or decide whether he will particiapte and
the extent of his participation in a bond
drive. That is a basic determination which he
and he alone should make.
"I think there is an interference with
fundamental rights when coercion of a psy-
chological or economic nature is brought on
a Federal employee, even to make him do
right. I think a man has to have a choice of
acting unwisely as well as wisely, if he is go-
ing to have any freedom at all."
The subcommittee has received from em-
ployees and their organizations numerous re-
ports of intimidation, threats of loss of job,
and security clearances and of denial of pro-
motion for employees who do not participate
to the extent supervisors wish. The hearing
record contains examples of documented
cases of reprisals, many of which have been
investigated at the subcommittee's request
and confirmed bY the agency involved. It is
apparent that policy statements and admin-
istrative rules are not sufficient to protect
aidividuals from such coercion.
The president of the United Federation of
Postal Clerks informed the subcommittee:
-Section 1, paragraph (i) of S. 3779 is
particularly important to all Federal em-
ployees and certainly to our postal clerks.
The extreme arm-twisting coercion, and
pressure tactics exerted by some postmasters
on our members earlier this year during the
savings bond drive must not be permitted
at any ftiture time in the Govern fen
service.
"Our union received complaints froin
over the country where low-paid pe?ard
clerks, most having the almost imp*: de
problem of trying to support a family le ed
exist on substandard wages, were practi.en'l y
being ordered to sign up for purchase of,.
savings bonds, or else. The patriotism of or
postal employees cannot be challengee
recently was advised that almost 75 peee, nt
of postal workers are veterans of the Are, d
Forces and have proven their loyalty
patriotism to this great country of cure -n11
the battlefield in many wars. Yet, Neese
postmasters questioned this patriotism' e ad
loyalty if any employee could not afford to
purchase a savings bond during the dr' e.?
The president of the National Associrti;
of Government Employees testified:
"We are aware of instances wherein e e-
ployees were told that if they failed to use-
ticipate in the bond program they would 're
frozen in their position without promotitesil.
opportunities.
"In another agency the names of indit ,1-
uals who did not participate were posted'
all to see. We have been made aware ofinis
situation for some years and we know *1. at
Congress has been advised of the many
stances and injustices Federal eiripl% (es
faced concerning their refusal or inabi 1, ty
to purchase bonds.
"Certainly, the Government, which Les
thousands of public relations men in IS
agencies and departments, should be cape ele
of promoting a bond program that does ii
Include the sledge-hammer approach." '
Some concern has been expressed by
of the United Community Funds led
Councils of America, the American Heart es-
sociation, Inc., and other charitable orgr .d-
zations, that the bill would hamper fleet*
campaigns n Federal agencies.
For this reason, the bill contains a prmaeo
to express the intent of the sponsors 'It at
officials may still schedule meetings and la lee
any appropriate action to publicize c? *11-
paigns and to afford employees the oppol u-
nity to invest or donate their money v61,1 1-
,
tarily. It is felt that this section leavs-
wide scope for reasonable action in pron. e -
Mg bond selling and charity drives.
The bill will prohibit such practices as
were reported to the subcommittee in I lie
following complaints:
? "We have not yet sold our former illele
and cannot afford to buy bonds while vs
have both mortgage payments and ref sl
payments to meet. Yet I have been forced to
buy bonds, as I was told the policy at ilas
base is, "Buy bonds or by-by.'
"In short, after moving 1,700 miles for is
good of the Government, I was told I Vie Id
be fired if I didn't invest my money ai
employer directed. I cannot afford to 'aers
bonds, but I can't afford to be fired? even
more.
* * *:
"Not only were we forced to buy bee. 1E,
but our superiors stood by the time alealt
with the blanks for the United Givers Fired,
and refused to let us leave until we sign al
up. I am afraid to sign my name,. but I -fl
employed at * *
* ?
A representative of the 14th District' :no -
partment of the American Federation of 0,
ernment Employees, Lodge 421, reported:
"The case of a GS-13 professional emple'?
who has had the misfortune this past $e ee
of underwriting the expenses incurred by le
last illness and death of both his met
and father just prior to this recent 601(1
drive. This employee had been unoffiele .ly
Informed by his supervisor that he had b
selected for a then existing GS-14 vacai y.
When it became known that he was decla -
lug to increase his participation in the as v -
tugs bond drive by Increasing his par ai
deduction for that purpose, he was informed
that he might as well, in effect, kiss that
grade 14 goodley."
DISCLOSURE OF ASSETS, DEBTS, AND PROPERTY
Sections f i) and (j) meet a need for im-
posing a reasonable statutory limitation on
the extent to which an employee must reveal
the details of his or his family's personal
finances, debts, or ownership of property.
The subcommittee believes that the con-
flict-of-interest statutes, and the many other
laws governing conduct of employees, to-
gether with appropriate implementing regu-
lations, are sufficient to protect the Govern-
ment from dishonest employees. Mere zealous
information at activities on the part of man-
agement were recommended by witnesses in
lieu of the many questionnaires now
required.
The employee criticism of such inquiries
was summarized as follows:
"There are ample laws on the statute
books dealing with fraudulent employment,
conflicts of interest, etc. The invasion of
privacy of the individual employee is seri-
ous enough, but the invasion of the pri-
vacy of family, relatives and children of the
employee is an outrage against a free society.
"This forced financial disclosure has
caused serious moral problems and feelings
by employees that the agencies distrust their
integrity. We do not doubt that if every
employee stas required to file an absolutely
?
honest financial disclosure, that a few,
though insignificant number of conflict-
of-interest cases may result. However, the
discovery of the few legal infractions could
in no way justify the damaging effects of
forced disclosures of a private nature. Fur-
ther, it is our opinion that those who are
intent on engaging in activities which result
in a conflict of interest would hardly supply
that information on a questionnaire or fi-
nancial statement. Many employees have in-
dicated the.; rather than subject their fami-
lies to any such unwarranted invasion of
their right to privacy, that they are seriously
considering other employment outside of
Government"
The bill u ill reduce to reasonable propor-
tions such Inquiries as the following ques-
tionnaire, which many thousands of em- -
ployees have periodically been required to
submit.
(Questionnaire follows:)
CONFIDENTIAL STATEMENT OF EMPLOYMENT
AND FINANCIAL INTERESTS
(For use by regular Government employees)
Name (Last, First, Initial).
Title of position.
Date of appointment in present position.
Organization location (Operating agency,
Bureau Division).
PART I. EMPLOYMENT AND FINANCIAL INTERESTS
List the names of all corporations, com-
panies, firms, or ether business enterprises,
partnerships, nonprofit organizations, and ed-
cational, or other institutions: (a) with
which you pre connected as an employee, of-
ficer, owner, director, member, trustee, part-
ner, adviser, or consultant; or (b) in which
you have any continuing financial interests,
through a pension or retirement plan, shared
income, or other arrangement as a result of
any current or prior employment or business
or professional association; or (c) in which
you have any financial interest through the
ownership of stock, stock options, bonds, se-
curities, or other arrangements including
trusts_ If none, write NONE.
Name and kind of organization (Use Part
1 designations where applicable).
Address.
Position in organization (Use Part 1(a)
designations, if applicable).
Nature of financial interest, e.g., stocks.
Prior Inconns (Use Part 1(b) & (a) designa-
tions if applicable).
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PART II CREDITORS
List the names of your creditors other than
those to whom you may be indebted by rea-
son of a mortgage on property which you
occupy as a personal residence or to whom
you may be indebted for current and ordi-
nary household and living expenses such as
household furnishings, automobile, educa-
tion, vacation, and similar expenses. If none,
write none.
Name and address cif creditor.
Character of indebtedness, e.g., personal
loan, note, security.
PART III. INTERESTS IN REAL PROPERTY
List your interest in real property or rights
in lands, other than property which you oc-
cupy as a personal residence. If none, write
none.
Nature of interest, e.g., ownership, mort-
gage, lien, investment, trust.
Type of property, e.g., residence, motel,
apartment, undeveloped land.
Address (If rural, give RFD of county and
State).
PART IV. INFORMATION REQUESTED OF OTHER
PERSONS
If any information is to be supplied by
other persons, e.g., trustee, attorney, account-
ant, relative, please indicate the name and
address of such persons, the date upon which
you requested that the information be sup-
plied, and the nature of subject matter in-
-volved, If none, write none.
Name and address.
Date of request.
Nature of subject matter.
(This space reserved for additional instruc-
tions).
I certify that the statements I have made
are true, complete, and correct to the best of
my knowledge and belief.
(Date).
(Signature).
The vagueness of the standards for requir-
ing such a broad surrender of privacy is il-
lustrated by the Civil Service Commission's
regulation applying this to any employee
whose duties have an "economic impact on
a non-Federal enterprise."
Also eliminated will be questionnaires ask-
ing employees to list "all assets, or every-
thing you and your immediate family own,
Including date acquired and cost or fair
market value at acquisition. (Cash in banks,
cash anywhere else, due from others?loans,
et cetera, automobiles, securities, real estate,
cash surrender of life insurance; personal ef-
fects and household furnishings and other
assets.)"
The view of the president of the United
Federation of Postal Clerks reflected the
testimony of many witnesses endorsing sec-
tions 1 (1) 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 un-
warranted invasion of employee privacy. Such
value as it may have in focusing employee at-
tention upon the problem of conflict of in-
terest and bringing to light honest over-
sights that may lead to conflict of interest
could surely be achieved by drawing atten-
tion to the 26 or more laws pertaining to
conflict of interest or by more zealous in-
formation activities on the part of manage-
ment."
The complex problem of preserving the
Confidential nature of such reports was de-
scribed by officials of the National Associa-
tion of Internal Revenue Employees:
"The present abundance of financial ques-
tionnaires provides ample material for even
more- abusive personnel practices. It is al-
most inevitable that this confidential infor-
Illation cannot remain confidential. Typical-
ly, the financial questionnaire is filed with
an employee's immediate .supervisor. The net
worth statements ultimately go into Inspec-
tion, but they pass through the hands of
local personnel administrators. We have re-
ceived a great number of disturbing reports?
as have you?that this information about
employees' private affairs is being used for
Improper purposes, such as enforced retire-
ment and the like."
Inadequacies in agency procedures for ob-
taining such information from employees
and for reviewing and storing it, are dis-
cussed in the Subcommittee report for the
89th Congress, 2d Session. Widely disparate
attitudes and- practices are also revealed in
a Subcommittee study contained in the ap-
pendix 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 SENATOR ERVIN: lam writing to ap-
plaud the stand you have taken on the new
requirement that Federal employees in cer-
tain grades and categories disclose their fi-
nancial holdings to their immediate 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 posi-
tion that involves the disposition of hun-
dreds of thousands of the taxpayers' money,
It is my conviction that my morality and
trustworthiness are already a matter of rec-
ord in the tiles of the Federal Government.
The requirement that my husband's finan-
cial assets be reported, as well as my own
assets and those we hold jointly, was par-
ticularly offensive, since my husband is the
head of our household and is not employed
by Government.
You might 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) we would be far
less deserving of respect had we not made
the prudent provisions for our retirement
which our assets and the income they earn
represent. Yet this reporting requirement
carries with it the implication that to have
"clean hands" it would be best to have no
assets or outside, unearned income when
you work for the Federal Government.
For your information I am a GS-15, earn-
ing $19,415. * * *
Thank you for speaking out for the con-
tinually maligned civil servant.
Sincerely yours,
DEAR SENATOR ERVIN: I am a 05-12 career
employee with over 16 years service.
The highest moral and ethical conduct has
been my goal in each of my positions of em-
ployment and I have found this to be true
of a vast majority of my fellow workers. It
may be true a few people do put material
gain ahead of their ethics but generally
these people are in the higher echelons of
office where their influence is much greater.
Our office has recently directed each em-
ployee from file clerk to the heads of sec-
tions to file a "Statement of Financial Inter-
est." As our office has no programs individuals
could have a financial interest in and espe-
cially no connections with FHA I feel it is
no one's business but my own what real
estate I own. I do not have a FHA mortgage
or any other real property and have no out-
side employment, hence have nothing to
hide by filing a blank form. Few Govern-
ment workers can afford much real property.
The principle of reporting to "Big Brother"
In every phase of your private life to me is
very degrading, highly unethical and very
unquestionable as to its effectiveness. If I
could and did use my position in some way
to make a profit I would be stupid to report
it on an agency inquiry form. What makes
officials think reporting will do away with
graft?
When the directive came out many man-
hours of productive work were lost in dis-
cussions and griping. Daily since the date
at some time during the day someone brings
up the subject. The supervisors filed their
reports as "good" examples but even they
objected to this inquiry.
No single thing was ever asked of Govern-
ment employees that caused such a decline
in their morale. We desperately need a "bill
of rights" to protect ourselves from any fur-
ther invasion of our private lives.
Fifteen years ago I committed myself to
Government service because: (a) I felt an
obligation to the Government due to my edu-
cation under the GI bill, (b) I could obtain
freedom from pressures of unions, (c) I
could obtain freedom from invasion of my
private life, and (d) I would be given the
opportunity to advance based solely on my
professional ability and not on personal poli-
tics. At this point I certainly regret my de-
cision to make the Government my career.
Sincerely,
DEAR SENATOR: I write to beg your support
of a "bill of rights" to protect Federal em-
ployees from official snooping which was in-
troduced by Senator Ervin of North Carolina.
I am a veteran of two wars and have or-
ders to a third war as a ready reservist. And
I know why I serve in these wars: that is to
prevent the forces of tyranny from invading
America.
Now, as a Federal employee I must fill out
a questionnaire giving details of my financial
status. This is required if I am to continue
working. I know that this information can
be made available to every official in Wash-
ington, including those who want to regu-
late specific details of My life.
Now I am no longer a free American. For
example, I can no longer buy stock of a for-
eign company because that country may be
in disfavor with officials of the right or left.
And I cannot "own part of America" by buy-
ing common stocks until an "approved list"
is published by my superiors.
I 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 may decide I should sell or rent to a
person or group not of my choosing.
In short, I am no longer free to plan my
own financial program for the future se-
curity of my family. In 1 day I was robbed of
the freedom for which I fought two wars.
This is a sickening feeling, you may be sure.
It seems plain that a deep, moral issue is
involved here that concerns every citizen. If
this thing is allowed to continue, tomorrow
or next year every citizen may come under
the inquisition. The dossier on every citizen
will be on file for the use of any person or
group having enough overt or covert power
to gain access to them.
Sincerely,
On August 1966, Federal employees who
were retired from the armed services were
told to complete and return within 7 days,
with their social security numbers, a 15-
page questionnaire, asking, among other
things:
How much did you earn in 1965 in wages,
salary, Commissions, or tips from all jobs?
How much did you earn in 1965 in profits
or fees from working in your own business,
professional practice, partnership, or farm?
How much did you receive in 1965 from
social security, pensions (nonmilitary) rent
(minus expenses), interests or dividends, un-
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employment insurance, welfare payments, or
from any ether source not already entered?
How much did other members of your
family earn in 1965 in wages, salary, com-
missions or tips? (Before any deductions.)
IFor this question, a family consists of two
or more persons in the- same household who
are related to each other by blood, marriage,
or adoption.) If the exact amount is not
known, give your best estimate.
How much did other members of your
family earn in 1965 in profits or fees from
working in their own business, professional
practices, partnership, or farm?
How much did any other member of your
family receive in 1965 from social security,
pensions, rent (minus expenses), interest or
dividends, unemployment insurance, welfare
payments; or from any other source not al-
ready entered?
RIGHT TO COUNSEL
Section 1(k) of the bill guarantees to Fed-
eral workers the opportunity of asking the
presence of legal counsel, of a friend or other
person when undergoing an official inter-
rogation 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 employees facing
disciplinary investigations or possible loss of
security clearances tantamount to loss of
employment. The Civil Service Commission
regulations are silent on this critical issue.
In the absence of any Commission initiative
or standard, therefore, the employing agen-
cies are pursuing widely disparate practices.
To judge from the questionnaires and other
evidence before the subcommittee, 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 apparently 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 Federal 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 Su-
preme Court. In view of the decisions of Mi-
randa v. Arizona, 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 Internal Revenue Service, ac-
knowledge an unqualified right to counsel
for an employee suspected of crime but de-
cline to do the same for coworkers threat-
ened 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 pol-
icy as well as bad law. It would be corrected
by this section of the bill.
The ultimate justification for the "right-
to-counsel" clause, however, is the Constitu-
tion itself. There is no longer any serious
doubt that Federal employees are entitled
to due process of law as an incident of their
employment relation. Once, of course, the
courts felt otherwise, holding that absent
explicit statutory limitation, the power of
the executive to deal with employees was
virtually unfettered.
The doctrinal underpinning of this rule
was the 19th-century notion that the em-
ployment relation is not tangible "property."
Both the rule and its underpinning have now
been reexamined. The Supreme Court in re-
cent years has emphasized the necessity of
providing procedural due process where a
man Is deprived of his job or livelihood *er
governmental action.
While the courts have as yet had no oo o
sion to articulate a specific right to coup, el
in the employment relationship, there ft 0
obviously be no doubt that the right a
counsel is of such a fundamental charac.
that it is among the essential ingredients e
due process. What is at stake for an employ
in a discharge proceeding?often includi; g
personal humiliation, obloquy and penure --
is just as serious as that involved in a crim-
inal trial. This is not to suggest that all it e
incidents of our civilized standard of a'a lir
trial can or should be imported into 11'ecie,11
discharge proceedings. But if we are to he '
fair play for Federal employees, the right
counsel is a sine qua non. It is of a pit e
with the highest traditions, the fairest lane
and the soundest policy that this country)",
produced. And, in the judgment of this ste -
committee, the clear affirmation of this ha. e
right is very long overdue.
The need for such protection was conflrixiP.
at the hearings by all representatives of Gee
ernment employee organizations and umen
The president of the National Associati
of Letter Carriers testified:
"It is a practice in the postal inspecteo
service, when an employee is called in nr
questioning by the inspectors on a sheet e
postal matter that does not involve a felor
to deny the right of counsel. The inspectte
interrogate the employee at length and, t
the completion of the interrogation, one
the inspectors writes out a statement an I
pressures the employee to sign it before Le
leaves the room. We have frequently ask,
the postal inspection service to permit the
employees to have counsel present at tett
time of the interrogation. The right for ste ;
counsel has been denied in all except a it
cases. If the employee is charged with
felony, then, of course, the law takes over at
the right for counsel is clearly established tir
In other investigations and interrogations e 9
counsel is permitted."
Several agencies contend that right re
counsel is now granted in formal advere
action proceedings and that appeals pros".
dures make this section unnecessary for be .
formal questioning, Testimony and con,
plaints from employees indicate that tb..
machinery does not effectively secure te
opportunity of the employee to defend hin.
self early enough in the investigation 1.,
allow a meaningful defense.
The predicament of postal employees e
described at the hearings reflects the situs.
tion in other agencies as reported in mail:
individual cases sent to the subcommitte-
While it is undoubtedly true that in SOH
simple questioning, counsel may not be net
essary, in many matters where interrogatier
will result in disciplinary action, failure Ile
have counsel at the first level reacts again
the employee all the way up through the Re
peal and review. In the case of a postal eh
ployee, the subcommittee was told?
"The first level is at the working foreman
level. He is the author of the charges; the
the case proceeds to the postmaster, who en.
pointed the foreman and, if the individual 1-
found guilty of the charge at the first leve
it is almost inevitable that this position wt. '
be supported on the second level, The tide'
level is the regional level, and the polio
there is usually that of supporting the lime I
postmaster. A disinteresting party is neete
reached. The fourth level is the Appeal.
Board, composed of officials appointed by lee;
Postmaster General. In some cases, the regnee,
will overrule the postmaster, but certain)
the individual does not have what one coultl
style an impartial appeals procedure."
Employees charged with no crime ha*
been subjected to intensive interrogation,
by Defense Department investigators win
ask intimate questions, make sweeping lel-
legation.s, and threaten dire consequence;
unless come at is given to polygraph tests.
Employees heve been ordered to confess oral-
ly or to write and sign statements. Such in-
terviews lutee been conducted after denial
of the empleyee'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 massified information by transfer
or reassignment, with the resulting loss of
promotion opportunities.
Witnesses testified that employees have
no recourse against the consequences of
formal charges based on information and
statements et quired during a preliminary in-
vestigation. This renders meaningless the
distinction urged by the Civil Service Com-
mission between formal and informal pro-
ceedings.
exceperoes
The act under section 9, does not 'apply
to the Federal Bureau of Investigation.
Furthermore, section 6 provides that nothing
in the act will prohibit an official of the
Central Inteligence. Agency and the Na-
tional Security Agency from requesting any
employee or applicant to take a polygraph
test or a psychological test, or to provide a
personal fine ncial statement designed to
elicit the personal information protected
under subsections 1(e), (f), (1), and (j).
In suoh eases, the Director of the agency or
his designee must make a personal finding
with regard to each individual to be tested
or examined that such test or information
is required to protect the national security.
An exception to the right-to-counsel sec-
tion has been provided to limit this right
for employee.) in the Central Intelligence
Agency and the National Security Agency
to a person who serves in the same agency
or a counsel cleared by the agency for ac-
cess to the information involved. Obviously,
it is expected that the employee's right to
be accompanied by the person of his choice
will not be denied unless that person's ac-
cess to the information for the purpose of
the case is clearly inconsistent with the na-
tional security. Other language' recognizes
problems untrue to these two agencies.
POT instance, section 7 requires exhaustion
of remedies be employees of the Central In-
telligence Agency and the National Security
Agency and states that the act does not affect
whatever existing statutory authority these
agencies now possess to terminate employ-
ment. Section 8 is designed to assure that
nothing in the act is construed to affect
negatively ate? existing statutory or execu-
tive authority of the Directors of the Central
Intelligence Agency and National Security
Agency to protect their information in cases
involving theit employees. Consequently, pro-
cedures commended to the subcommittee by
the Director of the Central Intelligence
Agency are Spelled out for asserting that au-
thority in certain proceedings arising under
the act. Other committee amendments to S.
1035, as detailed earlier, were adopted to meet
administrative requirements of the Federal
security progrun and the intelligence com-
munity as well as the Management needs
of the executive branch.
ENFORCE CSENT
Enforcement of the rights guaranteed in
sections 1 and 2 a the bill is lodged in the
administrative and civil remedies and sanc-
tions Of sections 3, 4, and 5. Crucial to en-
forcement of the act is the creation of an
Independent Board on Employee Rights to
determine the need for disciplinary action
against and military offenders under
the act and o provide relief from viola-
tions.
Testimony at the hearings as well as in-
vestigatien of eomplainte have demonstrated
that in the are5 of erriployee rights, a right
Is only as seem e as its enforcement. There is
overwhelming evidence that employees have
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March 7, 1974 CONGRESSIONAL RECORD?SENATE
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 under the act has
several courses of action:
(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 ex-
ercise of his right to seek other remedies.
(2) He may register his complaint with the
Board on Employee Rights and obtain a hear-
ing. If he loses there, he May appeal to the
district court, which has the power to ex-
amine the record as a whole and to affirm,
modify, or set aside any determination ox
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 a civil action in Federal
district court to prevent the threatened vio-
lation, or obtain complete redress against
the consequences of the violation.
He does, not need to exhaust any admin-
istrative remedies but if he elects to pursue
his civil remedies in the court under section
4, he may not seek redress through the Board.
Similarly, if he initiates action before the
Board under section 5, he may not also seek
relief from the court under section 4.
The bill does not affect any authority,
right or priyilege accorded under Executive
Order 11491 governing employee-manage-
ment cooperation in the Federal service. To
the'extent that there is any overlapping of
subject matter, the bill simply provides an
additional remedy.
THE BOARD ON EMPLOYEES' RIGHTS
As a result of hearings on S. 3779, the
section creating a Board on Employees'
Rights was added to the bill for introduction
as S. 1035.
Employees have complained that adminis-
trative grievance procedures have often
proved ineffectiie because they are cumber-
some, time-consuming, and weighted on the
side of management. Not only do those who
break the rules go unpunished many times,
but the fearful tenor of letters and tele-
phone calls from throughout the country
indicate that employees fear reprisals for
noncompliance with improper requests or for
filing of complaintg and grievances. Oral and
? written directives of warning to this effect
have been verified by the subcommittee. Sec-
tion 1(e) of the bill, therefore, prevents re-
? prisals for exercise of rights granted under
the act and in such event accords the indi-
? vidual cause for complaint before the Board
or the court.
Concerning the original bill in the 89th
Congress, which did not provide for a board,
representatives of the 14th department of
the American Federation 'of Government
Employees commented that the remedies are
the most important aspects of such a bill
because "unless due process procedures are
explicitly provided, the remaining provisions
of the bill may be easily ignored or circum-
vented by Federal personnel management. As
a matter of fact, we believe, the reason em-
ployees' rights have been eroded so rapidly
and so devastatingly in the last few years is
the absence of efficient, expeditious, uni-
form, and legislatively well defined proce-
dures of dile process in the executive depart-
ments of the Federal Government."
An independent and nonpartisan Board is
assured by congressional participation in its
selection and by the fact that no member
is to,be a government employee. Provision is
made for congressional monitoring through
detailed reports.
? Senator Ervin explained the function of
? the Board established by section 5 as follows:
"The bill sets up a new independent Fed-
eral agency with authority to receive com-
plaints and make rulings on complaints?
complaints of individual employees or unions
representing employees. This independent
agency, which would not be subject in any
way to the executive branch of the Govern-
ment, would be authorized tc make rulings
on these matters in the first instance. It
would make a ruling on action in a particu-
lar agency or department that is an alleged
violation of the provisions of the bill, with
authority either on the part of the agency
or the part of the individual or on the part
of the union to take an appeal 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
which the employee has complained. For pur-
poses of enforcing the act, sections 3, 4 and
5 assure adequate machinery for processing
complaints and for prompt and impartial de-
termination of the fairness and constitution-
ality of general policies and practices initi-
ated at the highest agency levels or by the
Civil Service Commission or by' Executive
order.
Finding no effective recourse against ad-
ministrative actions and policies which they
believed unfair or in violation of their
rights, individual employees and their fami-
lies turned to Congress for redress. Opening
the hearings on invasions of privacy, Senator
Ervin stated:
Never in the history of the Subcommittee
on Constitutional 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 in-
dignation from Government employees, 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 en-
croachment. Each new program brings a new
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 person-
nel practices in the Federal Government and
feel that they will get a fair hearing, that
they will secure what could be called 'em-
ployment 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 con-
tinuing to study this proposal, the subcom-
mittee has temporarily rejected this approach
in the interest of achieving immediate en-
forcement of the act and providing admin-
istrative remedies for its violation. For this
reason it supports the creation of a limited
Board on Employees' Rights.
Perhaps one of the i-nost important sections
of the bill, if not the most important section,
according to the United Federation of Postal
Clerks, is the proviaion establishing the
Board, The subcommittee was told?
"It would appear absolutely essential that
any final legislation enacted into law must
necessarily include such a provision. We can
offer no suggestion for improvement of this
section. As preSently constituted the section
is easily understood; and the most excellent
and inclusive definition of the proposed
"Board on Employees' Rights" which could
S 3051
possibly be enacted into law. It defines the
right of employees to challenge violations of
the proposedact; defines the procedures in-
volved, as well as the authority of the Board,
penalties for violation of the act, as well as
establishing the right of judiffial review for
an aggrieved party, and finally provided for
congressional review, and in effect, an an-
nual audit by the Congress of all complaints,
decisions, orders, and other related informa-
tion resulting from activities and operations
of the proposed act."
Sanctions
The need for sanctions against offending
officials has been evident throughout the
subcommittee's investigation of flagrant dis-
regard 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
offenders and afforded broad civil remedies,
and penalties.
Reporting on the experiences of the Ameri-
can Civil Liberties Union in such employee
cases, Lawrence Speiser testified:
"In filing complaints with agencies in-
cluding the Civil Service Commission, the .
Army and the Navy, as I have during the
period of time I have worked here in Wash-
ington, I have never been informed of any
disciplinary action taken against any in-
vestigator for asking improper questions, for
engaging in improper investigative tech-
niques, for barring counsel when a person
had a .right to have counsel, or for a viola-
tion of any number of things that you have
in this bill. Maybe some was taken, but I
certainly couldn't get that information out
of the agencies, after making the complaints.
I would suggest that the bill also encompass
provision for disciplinary action that would
be taken against Federal employees who
violate any of these rights that you have set
out in the bill."
Other witnesses also pointed to the need
for the disciplinary measures afforded by the
powers of an independent Board to deter-
mine the need for corrective action and
punishment, and felt they would be more
effective than criminal penalties.
In view of the difficulty of filing criminal
charges and obtaining prosecution and con-
viction of executive branch officials which
might render the criminal enforcement pro-
vision meaningless for employees, the crim-
inal penalties were deleted and a Board on
Employee Rights incorporated into the
scheme of remedies and sanctions in the bill1
Although the Civil Service Commission
and the executive agencies have advocated
placing such administrative remedies within
the civil service grievance and appeals sys-
tem, the subcommittee believes that the key
to effective enforcement of the unique rights
recognized by this act lies in the employee's
recourse to an independent body.
"The theory of our Government," Profes-
sor Westin testified, "is that there should be
somewhere within the executive branch
where this kind of malpractice is corrected
and that good administration ought to pro-
vide for control. of supervision or other prac-
tices that are not proper. But the sheer size
of the Federal Establishment, the ambiguity
of the relationship of the Civil Service Com-
mission to employees, and the many differ-
ent Interest's that the Civil Service Commis-
sion has to bear in its role in the Federal
_Government, suggest that it is not an effec-
tive instrument for this kind of complaint
procedure."
SECTION-BY-SECTION ANALYSIS
SECTION 1
Section 1(a) makes it unlawful for a Fed-
eral official of any department or agency to
1 In the 89th Congress, S. 1035.
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3052 CONGRESSIONAL RECORD ? St NATE March 7, 1971
require or request, or to attempt to require
or request, any civilian employee of the
United States serving in the department or
aleency or any person seeking employment to
disclose his race, religion, or national origin,
or the race, religion, or national origin of any
of his forebears.
This section does not prohibit inquiry con-
eerning citizenship of such individual if his
..;tizenship is a statutory condition of his ob-
i aining or retaining his employment. Nor does
it preclude inquiry of the individual concern-
ine his national origin or citizenship or that
of his forebears when such inquiry is thought
necessary or advisable in order to determine
suitability for assignment to activities or
undertakings related to national security
within the United States or to activities or
undertakings of any nature outside the
United States.
This provision is directed at any practice
which places the employee or applicant under
coinpulsion to reveal such information as a
condition of the employment relation. It is
intended to implement the concept under-
lying the Federal merit system by which a
person's race, religion, or national origin
have no bearing on his right to be consid-
ered for Federal employment or on his right
to retain a Federal position. This prohibition
does not limit the existing authority or the
executive branch to acquire such informa-
tion by means other than self-disclosure.
Section 1(b) makes it unlawful for any
officer of any executive department or execu-
tive agency of the U.S. Government. or for
any person acting or purporting to act under
this authority, to state, intimate, or to at-
tempt 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 at-
tendance at any assemblage, discussion, or
lecture held or called by any officer of the
executive branch of the U.S. Government,
or by any person acting or purporting to act
under his authority, or by any outside parties
or organizations to advise, instruct, or. in-
doctrinate any civilian employee of the Unit-
ed States serving in the department or agency
in respect to any matter or subject other
than (1) the performance of official duties
to which he is or may be assigned in the
department or agency, or (2) the develop-
ment of skills, knowledge, or abilities which
qualify him for the performance of such
duties.
Nothing contained in this section is to be
construed to prohibit taking notice of the
participation of a civilian employee in the
activities of any professional group or
association.
This provision is designed to protect any
employee from compulsion to attend meet-
ings, discussions, and lectures on political,
social, and economic subjects unrelated to
his duties. It prevents Government officials
from using the employment relationship to
attempt to influence employee thoughts, at-
titudes, and actions on subjects which may
be of concern to them as private citizens.
In particular, this language is directed at
practices and policies which in effect require
attendance at such functions, including offi-
cial lists of those attending or not attend-
ing; its purpose is to prohibit threat, direct
or implied, written or oral, of official re-
taliation for nonattendance.
This section does not affect existing au-
thority for providing information designed
to promote the health and safety of em-
ployees. Nor does it affect existing authority
to call meetings for the purpose of publi-
cizing and giving notice to activities or
service, sponsored by the department or
agency, or campaigns such as charitable
fund campaigns and savings bond drives.
Section 1(c) makes it unawful for any
officer of any executive department or
agency, or for any person acting or pur-
porting to act under his authority, to re-
quire or request or to attempt to require r
request any civilian employee serving in r
department or agency to participate in t
way in any activities or undertakings utel
they are related to the performance of offis
duties to Which he is or may be assigned
the department or agency or to the dei : -
opinent of skills, knowledge, or abilin --
which qualify him for the performance f
such duties.
This section is directed against ?file -1
practices, requests, or orders that an e, 1-
ployee take part in any civic function, -
litical program, or community endeavor, .r
other activity which he might enjoy ar
private citizen, but which is unrelated to' .5
employment. It does not affect any exists n
authority to use appropriate techniques
publicizing existence of community p :-
grams such as blood-donation drives, :r
agency programs, benefits or services, se .1
for affording opportunity for employee p
ticipation if he desires.
Section 1(d) makes It unlawful for e'
officer of any executive department or agt
cy, or for any person acting under his e to
thority to require or request or attempt
require or reqeust, any civilian empioe.
serving in the department or agency to maO e
any repoet of his activities or undertakb
unless they are related to the performai ?
of official duties or to the development
skills, knowledge, or abilities which quid
him for the performance of such dutiea, .s
(2) unless there is reason to believe ti
the employee is engaged in outside act( -
ties or employment in conflict with his o
ficial duties.
Thin section is a minimum guarantee 1'
the freedom of any employee to paretic:1p, e
or not to participate in any endeavor or i
tivity in hie private life as a citizen, free
compile:4ton to report to supervisors his t -
tion or his inaction, his involvement or
noninvolvement. This section is to asat e
that in his private thoughts, actions, in i
activities he is free of intimidation or -
hibition as a result of the employme
relation.
The exceptions to the prohibition are
legislative mandates to require such infs
mation in those circumstances, but men --
provide an area of executive discretion I -
reasonable management purposes and for c.
servance and enforcement of existing la.
governing employee conduct and conflicts
interest.
Section 1(e) makes it unlawful for a ?
officer of any executive department or age -
cy, or any person acting under his auttem
ity, to require or request any civilian et
ployee serving in the department or agen
or any person applying for employment as
civilian employee to submit to any inten
gation or examination or to take any tie -
chological test designed to elict from le ,
any infOrmation concerning his personal s --
lationship with any person connected vel
him by blood or marriage, or concerning)
religious beliefs or practices, or canceled.,
his attitude or conduct with respect to se '-
mai matters.
In accordance with an amendment ma, o
after hearings on S. 3779, a proviso is n
eluded to assure that nothing contained
this section shall be construed to prevent ,
physician from eliciting such information
authorizing such test in the diagnosis o
treatment of any civilian employee or app: -
cant where be feels the information is neoe -
sary to enable him tO determine whetb
or not the individual is suffering from me, -
tel. illness. The bill as introduced limited th
inquiry to psychiatrists, but an amendme
extended it to physicians, since the sin -
committee was told that when no psychiatri
Is available, it may be necessary for a ge;
eral physician to obtain this information
determining the presence of mental Hine ?
and the need for further treatment.
This medical determination is to be man
in individual cases and not pursuant to gen-
eral practice or regulanion governing the ex-
amination of employees or applicants accord-
ing to grade, agency, or duties.
Under an amendmeut to the bill, this lan-
guage is not to be construed to prohibit an
official from advising an employee or appli-
cant of a specific Charge of sexual miscon-
duct made against that person and affording
him an opportunity to refute the charge.
While providing no authority to request or
demand slice information, the section does
not prevent an official who has received
charges of misconduct, which might have a
detrimental effect on the person's employ-
ment from obtaining a clarification of the
matter if the employee wishes to provide it.
This section would not prohibit all per-
sona/ley tests but merely those questions on
the tests Whir h inquire into the three areas
in which cliteens have a right to keep their
thoughts to themselve.s.
It raises the criterion for requiring such
personal information from the general "fit-
ness for duty'' test to the need for diagnosing
or treating mental illness. The second pro-
viso is designed to prohibit mass-testing pro-
grams. The language of this section provides
guidelines for the various personnel and
medical spec alists whose practices and de-
terminations may invade employee's personal
privacy and thereby affect the individual's
employment prospects or opportunities for
advancement
An amendment in section 6 provided an ex-
ception to this prohibition in the case of the
use of such psychological tests by the Cen-
tral Intelligence Agency and the National
Security Agency, only if the Director of the
agency or his designee makes a personal find-
ing that the mformation is necessary to pro-
teet the national security.
Section 1(ie makes it unlawful for any of-
ficer Of any executive department or agency
or any person acting under his authority, to
require or request or attempt to require or
request any civilian employee or any appli-
cant for employment to take any polygraph
test designed to elicit from him information
concerning Ins personal relationship with
any person connected with him by blood or
marriage, or eancernixig his religious beliefs
or practices or concerning his attitude or
conduct with respect to sexual matters. While
this section does not eliminate entirely the
use of so-called lie detectors in Government,
It assures that, where such devices are used.
officials may not inquire into matters which
are of a personal nature.
As with psychological testing, the Central
Intelligence Agency and the National Secur-
ity Agency, under section 6, are not pro-
hibitecl from acquiring such information by
polygraph, provided certain conditions are
met.
Section 1(g) makes it illegal for an offi-
cial to require or request an employee under
his management to support the nomination
or election of anyone to public office through
personal endeavor, financial contribution, or
any other thing of value. An employee may
not be required or requested to attend any
meeting held to promote or support the ac-
tivities of an; political party in the United
States.
The purpose of this section is to assure
that the employee is free from any job-re-
lated pressures to conform his thought.; and
attitudes and actions in political matters
unrelated to his job to those of his super-
visors. With respect to his superiors, it pro-
tects him in the privacy of his contribution
or lack of contribution to the civic affairs
and political life of his community, State
and Nation. :a particular, it protects him
from commands or requests of his employer
to buy ticket.; to fundraising functions, or
to attend such functions, to Compile posi-
tion papers or research material for political
purposes or make any other contribution
which constitutes a political act or which
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March 7: 1974 CONGRESSIONAL RECORD ? SENATE S 3053
places him in the position of publicly ex-
pressing his support or nonsupport of a par-
ty or candidate. This section also assures
that, although there is no evidence of
such activities at present, no Federal agency
may in the future improperly involve itself
in the undertakings of any political party in
the United States, its territories, or posses-
sions.
Section 1(h) makes it illegal for an offi-
cial to coerce or attempt to coerce any civil-
ian employee in the department hr agency
to invest his earnings in bonds or other Gov-
ernment obligations or securities, or to make
donations to any institutions or cause, This
section does not prohibit officials from call-
ing meetings or taking any other appro-
priate action to afford employees the oppor-
tunity voluntarily to invest his earnings in
bonds or other obligations or voluntarily
to make donations to any institution or
cause. Appropriate action, in the committee's
view, might include publicity and other
forms of persuasion short of job-related pres-
sures, threats, intimidation, reprisals of
various types, and "blacklists" circulated
through the employee's office or agency to
publicize his noncompliance.
Section 1(1) makes it illegal for an official
to require or request any civilian employee
In the department or agency to disclose any
items of his property, income, or other as-
sets, source of income, or liabilities, or his
personal or domestic expenditures or those
of any member of his family. Exempted
from coverage under this provision is any
civilian employee who has authority to make
any final determination with respect to the
tax or other liability to the United States of
any person, corporation, or other legal entity,
or with respect to clainis which require ex-
penditure of Federal moneys. Section 6 pro-
vides certain exemptions for two security
agencies.
Neither the Department of the Treasury
nor any other executive department or agen-
cy is prohibited under this section from re-
quiring any civilian employee to make such
reports as may be necessary or appropriate
for the determination of his liability for
taxes, tariffs, custom duties, or other obliga-
tions imposed by law. This proviso is to as-
sure that Federal employees may be subject
to any reporting or disclosure requirements
demanded by any law applicable to all per-
sons in certain circumstances,
-Section 1(j) makes it illegal to require or
request any civilian employee exempted from
application of section 3(1) under the first
proviso of that section, to disclose any items
of his property, income, or other assets,
source of income, or liabilities, or his per-
sonal 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 perform-
ance of any of the official duties to which he
Is or may be assigned.
This section is designed to abolish and pro-
hibit broad general inquiries which em-
ployees have likened to "fishing expeditions"
and to confine any disclosure requirements
imposed on an employee to reasonable in-
quiries about job-related financial interests.
This does not preclude, therefore, question-
ing in individual cases where there is reason
to believe the employee has a conflict of in-
terest with his official duties.
Section 1(k) makes it unlawful for a Fed-
eral official of any department or agency to
require or request, or attempt to require or
request, a civilian employee who is under
investigation for misconduct, to submit to
Interrogation which could lead to dis-
ciplinary action without the presence of
counsel or other person of his choice, if he
wishes.
This section is intended to rectify a long-
standing denial of due process "by which
agency investigators and other officials pro-
hibit or discourage presence of counsel or a
friend. This provision is directed at any inter-
rogation which could lead to loss of job,
pay, security clearance, or denial of promo-
tion rights.
This right insures to the employee at the
inception of the investigation, and the sec-
tion does not require that the employee be
accused formally of any wrongdoing before
he may request presence of counsel or friend.
The section does not require the agency or
department to furnish counsel.
A committee amendment to S. 782 adds a
proviso that a civilian employee serving in
the Central Intelligence Agency or the Na-
tional 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 acdess to the information involved.
Sectrbn 1(1) makes it unlawful for a Fed-
eral official of any department or agency to
discharge, discipline, demote, deny promo-
tion, relocate, reassign, or otherwise impair
existing terms or conditions of employment
of any employee, or threaten to commit any
such acts, because the employee has refused
or failed I to comply with any action made
unlawful by this act or exercised any right
granted by the act.
This section prohibits discrimination
against any employee because he refuses to
comply with an illegal order as defined by
this act or takes advantage of a legal right
embodied in the act.
SECTION 2
Section 2(a) makes it unlawful for any
officer of the U.S. Civil Service Commission
or any person acting or purporting to act
under his authority to require or request, or
attempt to require or request, any executive
department or any executive agency of the
U.S. Government, or any officer or employee
serving in such department or agency, to
violate any of the provisions of section 1
of this act.
Specifically, this section is intended to en-
sure that the Civil Service Commission, act-
ing as the coordinating policymaking body
In the area of Federal civilian employment
shall be subject to the same strictures as the
Individual departments or agencies.
Section 2(b) makes it unlawful for any
officer of the U.S. Civil Service Commission,
or any person acting or purporting to act
under his authority, to require or request,
or attempt to require or request, any per-
son seeking to establish civil service status or
eligibility for civilian employment, or any
person applying for employment, or any
civilian employee of the United States serv-
ing in any department or agency, to submit
to any interrogation or examination or to
take any psychological test which is designed
to elicit from him information concerning
his personal relationship with any person
connected with him by blood or marriage,
or concerning his religious beliefs or prac-
tices, or concerning his attitude or conduct
with respect to sexual matters
This section is intended to assure that
the Civil Service Commission shall be sub-
ject to the same prohibitions to which de-
partments and agencies are subject in sec-
tions 1 (e) and(f). The provisos contained
in section 1(e) are restated here to assure
? that nothing in this section is to be con-
strued to prohibit a physician from acquir-
ing such data to determine mental illness,
or an official from informing an individual
..of a specific charge of sexual misconduct and
affording him an opportunity to refute the
charge.
Section 2(c) makes it unlawful for any
officer of the U.S. Civil Service Commission
to require or request any person seeking to
establish civil service status or eligibility for
employment, or any person applying for em-
ployment in the executive branch of the U.S.
Government, or any civilian employee serv-
ing in any department or agency to take any
polygraph test designed to elicit from him
information concerning his personal rela-
tionship with any person connected with him
by blood or marriage, or concerning his re-
ligious beliefs or practices, or concerning his
attitude or conduct with respect to sexual
matters.
This section applies the provisions of sec-
tion 1(f) to the Civil Service Commission in
Instances where it has authority over agency
personnel practices or in cases in which its
officials request information from the appli-
cant or employee.
SECTION 3
This section applies the act to military
supervisors by making violations of the act
also violations of the Uniform Code of Mili-
tary Justice.
SECTION 4
Section 4 provides civil remedies for vio-
lation of the act by granting an applicant
or employee the right to bring a civil action
in the Federal district court for a court order
to halt the violation, or to obtain complete
redress against the consequences of the vio-
lation. The action may be brought in his own
behalf or in behalf of himself and others
similarly situated, and the action may be
filed against the offending officer or person in
the Federal district court for the district in
which the violation occurs or is threatened,
or in the district in which the offending offi-
cer or person is found, or in the District
Court for the District of Columbia.
The court hearing the dase shall have jur-
isdiction to adjudicate the civil action with-
out regard to the actuality or amount of
pecuniary injury done or threatened. More-
over, the suit may be maintained without re-
gard to whether or not the aggrieved party
has exhausted available administrative rem-
edies. If the individual complainant has pur-
sued his relief through administrative rem-
edies established for enforcement of the act
and has obtained complete protection against
threatened violations or complete redress for
violations, this relief may be pleaded in bar
of the suit. The court is empowered to pro-
vide whatever broad equitable and legal re-
lief it may deem necessary to afford full pro-
tection to the aggrieved party; such relief
natty include restraining orders, interlocutory
injtinctions, permanent injunctions, manda-
tory injunctions, or such other judgments or
decrees as may be necessary under the cir-
cumstances.
Another provision of section 4 would per-
mitan aggrieved person to give written con-
sent- to any employee organization to bring
a civil action on his behalf, or to intervene
In such action. "Employee organizations" as
used in this section includes any brotherhood,
council, federation, organization, union, or
professional association made up in whole or
In part of Federal civilian employees, and
Which deals with departments, agencies, com-
missions, and independent agencies regard-
ing employee matters.
A committee amendment provides that the
Attorney General shall defend officers or per-
sons who acted pursuant to an order, regula-
tion, or directive, or who, in his opinion, did
not willfully violate the provisions of the act.,
SECTION 5
Section 5 establishes an independent Board
on Employees' Rights, to provide employees
with an alternative means of obtaining ad-
ministrative relief from violations of the act,
short of recourse to the judicial system.
Section 5(a) provides for a Board com-
posed of three merhbers, appointed by the
President with the consent of the Senate. No
member shall be an employee of the U.S.
Governenent and no more than two members
may be of the safne political party. The Presi-
dent shall designate one member as Chair-
'man.
Section 5(b) defines the term of office for
members of the Board, providing that one
members of the initial Board shall serve for
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5 years, one for 3 years, and one for 1 year
from the date of enactment; any member ap-
pointed to fill a vacancy in one of these terms
shall be appointed for the remainder of the
term. Thereafter, each member shall be ap-
pointed for 5 years.
Section 5(c) establishes the compensation
tor Board members at $75 for each day spent
tent king in the work of the Board, plus actual
travel expenses and per diem in lieu of sub-
sistence expenses when away from the their
usual places of residence.
Section 5(d) provides that two members of
I he Board shall constitute a quorum for the
transaction of business.
Section 5(e) provides that the Board may
appoint and fix the compensation of neces-
eary employees, and make such expenditures
necessary to carry out the functions of the
Board.
Section 5(f) authorizes the Board to make
necessary rules and regirlations to carry out
its functions.
Section 5(g) provides that 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 hear-
ing on each such complaint. Moreover, within
10 days after the receipt of such a complaint,
the Board must furnish notice of time, place,
and nature of the hearing to all interested
parties, and within 30 days after concluding
the hearing, it must render its final decision
regarding any complaint.
Section 5(h) provides that officers or repre-
sentatives of any employee organization in
any degree concerned with employment of
the category in which the violation or threat
occurs, shall be given an opportunity to par-
ticipate In the hearing through submission
of written data, views, or arguments. In the
discretion of the Board they are to be afforded'
an opportunity for oral presentation. This
section further provides that Government
employees called upon by any party or by
any Federal employee organization to parti-
cipate in any phase cit any administrative or
judicial proceeding under this section shall
be free to do so without incurring travel cost
or loss in leave or pay. They shall be free from
restraint, coercion, interference, intimidation,
or reprisal in or because of their participa-
tion. Any periods of time spent by Govern-
ment employees during such proceedings
shall be held to be Federal employment for
all purposes.
Section 6(i) applies to the Board hearings
the provisions of the Administrative Proce-
dure Act relating to notice and conduct of
hearings insofar as consistent with the pur-
pose of this section.
Section 5(1) requires the Board, if it deter-
mines after a hearing that this act has not
been violated, to state such determination
and notify all interested parties of the find-
ings. This determination shall constitute a
final decision of the Board for purposes of
Judicial review.
Section 5(k) specifies the action to be
taken by the Board if, after a hearing, it
determines that any violation of this act has
been committed or threatened. In such case,
the Board shall immediately issue and cause
to be served on the offending officer or em-
ployee an order requiring him to cease and
desist- from the unlawful practice or act. The
Board is to endeavor to eliminate the unlaw-
ful act or practice by informal methods of
conference, conciliation, and persuasion.
Within its discretion, the Board may, in
the case of a first offense, issue an official
teprimand against the offending officer or
employee, or order the employee suspended
nom his position -without pay for a, period
not exceeding 15 days. In the case of a second
or subsequent offense, the Board may order,
the offending officer or employee suspended
without pay for a period not exceeding 80
days, or may order his removal from office.
Officers appointed by the President, by an
with the advice and consent of the Senat
are specifically excluded from the applint-
tion of these disciplinary measures; but tee
section provides that, in the case Of a viol t -
tion of this act by such individuals, tl e
Board may transmit a report concerning stit
violation to the President and the Congree
Section 5(1) provides for Board actle
when any officer of the Armed Forces of tit -
United States or any person acting under les
authority violates the act. In such event, ti --
Board shall 11) submit a report to the Preets
dent, the Congress, and to the Secretary V
the military department concerned, (2) 0, -
deavor to eliminate any unlawful act or prat -
tice through informal methods of confereni,
conciliation, and persuasion, and (3) rnft
Its determination and the record in the a s
to any person authorized to convene genee
courts-martaal under section 822 (article le t
of title 10, United States Code. When
determination and report is received, the
son designated shall immediately dispose
the matter under the provisions of ?haat t
47 of title 10 of the United States Code.
Section 5(m) provides that when any par' t
disagrees with an order or final determinatk 't
of the Board, he may institute a civil eclat e
for judicial review in the Federal distrh
court for the district wherein the violatio
or threatened violation occurred, or in tit ?
District Court for the District of Columba
The court has jurisdiction to (1) elfin-
modify, or set aside any determination- r
order made by the Board, or (2) require tit
Board to make any determination or ord r
which it is authorized to make under sec& t
5(k) but which it has refused to make. ,
considering the record as a whole, the cone,
Is to set aside any finding, conclusion, d.
termination, or order of the Board unste -
ported by substantial evidence.
The type of review envisioned here is sire' -
las to that obtained under the Administre -
tive Procedure Act in such cases but tat
section affords a somewhat enlarged sccs
for consideration of the case than is r.kr,
generally accorded on appeal of empleee -
cases. The court here has more discrete-
for action on its own initiative. To the 4 -
tent that they are consistent with this se, -
tion, the provisions for judicial review
title 5 of the United States Code would appl.
Section 5(n) provides for congressional yr.
view by directing the Board to submit to el ?
Senate and to the House of Ftepresentatila
an annual report which must include a stata
ment concerning the nature of all complain'
filed with it, the determinations and orde,
resulting fie= hearings, and the names 5
all officers or employees against whom al
penalties have been imposed under tin
section.
Section 5(o) provides an appropriation t,
$100,000 for the Board on Employee Right
SECTION 6
Section 6 provides that nothing in the at ,
shall be construed to prohibit aneofficer '
the Central Intelligence Agency or of ta
National Security Agency, under specific cot -
ditions, from requesting an applicant or ese,
ployee to submit a personal financial state -
ment of the type defined in subsection 1 at
and (1) or to take any polygraph or psyclaf -
logical test designed to elicit the persoste`
information protected under subsection 10
or l(f).
In these agencies, such information rine
be acquired from the employee or appliceet
by such methods only if the Director of t
agency or his designee makes a personal flee
ing with regard to each individual that such
test or information is required to protet
the national security.
SECTION 7
Section 7 requires, in effect, that ern
ployees of the Central Intelligence Agent.
? and the National Security Agency exhauf
their administrative remedies before invok
7, 1974
lug the provisions of section 4 (the Board
on Employee Rights) or section 5 (the Fed-
eral court action). An employee, his repre-
sentative, or any organization acting in his
behalf, must first submit a written com-
plaint to the agency and afford it 120 days to
prevent the threatened violation or to re-
dress the actual violation. A proviso states
that nothing in the act affects any existing
legal authority of the Central Intelligence
Agency under 50 U.S.C, 403(c) or of the Na-
tional Securisy Agency under 50 U.S.C. 833
to terminate employment.
SECTION
Section 8 provides that nothing in the
act shall be construed to affect in any way
authority of the directors of the Central In-
telligence> Agency or the National Security
Agency to protect or withhold information
pursuant to statute or Executive order. In
cases involving his employees, the personal
certification by the Director of the agency
that disclosuie of any information is incon-
sistent with the provision of any statute or
Executive order is to be conclusive and no
such informaGion shall be admissible in evi-
dence in any civil action under section 4 Or
in any proceeding or civil action under sec-
tion 5. Nor may such information be receiv-
able in the record of any interrogation of an
employee under section 1(k).
SECTION 9
Section 9 provides that the Federal Bureau
of Investigation shall be excluded from the
provisions of this act.
SECTION ID
Section 10 provides that nothing contained
In sections 4 or 5 shall be construed to pre-
vent the establishment of department and
agency grievance procedures to enforce this
act. This section makes it clear that the
existence of such procedures are not to pre-
clude any applicant or employee from pur-
suing any other available remedies. How-
ever, if under the procedures established by
an agency, the complainant has obtained
complete protection against threatened vio-
lations, or complete redress for violations,
such relief may be pleaded in bar in the
U.S. district court or in proceedings before
the Board on Employees' Rights.
Furthermore, an employee may not seek
his remedy through both the Board and the
court. If he elects to pursue his remedies
through the Board under section 5, for in-
stance, he waives his right under section 4
to take his cane directly to the district court.
SECTION Ii
Section 11 is the standard severability
clause.
Mr. HRUSEA. Mr. President, I am
pleased today to join my distinguished
colleague from North Carolina, Senator
Emit, in support of S. 1688, which seeks
to protect certain constitutional rights
of employees of the executive branch of
Government
This measure has come before the Sen-
ate on several previous occasions and has
received unanimous approval each time
as I recall; bat has subsequently failed to
receive similar approval in the House.
The thrust of the bill is to prohibit the
Federal Government from requiring em-
ployees of the executive branch and ap-
plicants for other Government positions
to disclose their race, religion, or national
origin. The measure also prohibits ques-
tions about the activities of employees
after duty hours and in activities unre-
lated to their work or about their person-
al attitudes mid beliefs, or their political
views or pi eferences. In addition, it
makes illegal the requirement for the
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filing of a personal financial statement
unless a conflict-of-interest question is
raised.
Some of the major objections to pre-
vious measures on this subject have been
overcome in the instant bill. The Federal
Bureau of Investigation, Central Intel-
ligence Agency, and National Security
Agency are exempt completely from the
provisions of S. 1688. Moreover, the bill
now provides for the right to have coun-
sel present during certain proceedings,
and for access to the courts for judicial
remedy where complaints may arise.
It is fitting that S. 1688 come before
the Senate for consideration at this time.
This measure coincides with the Presi-
dent's recent announcement on the es-
tablishment of a Cabinet-level Commis-
sion on Privacy. The purpose of the Com-
mission is to institute positive efforts by
the Federal Government to protect the
fundamental rights of privacy for all
citizens. S. 1688 is one segment of that
effort as it provides the Congress an op-
portunity to express its Collective will in
an area of concern to all Americans.
I urge my colleagues in the Senate, and
in the other body, to act in an expeditious
manner on this measure so that it may
be placed before the President for his
_approval in the near future. This legis-
lation is overdue, as a recognition of the
President's proposal for a Commission
on Privacy indicates. Therefore, it is now
within the grasp of the Congress to rec-
ognize the need for the protection of the
rights of privacy for executive branch
employees and take appropriate action
to achieve that end.
Mr. ERVIN. I am deeply grateful to
the Senator from Nebraska, not only for
his remarks on this occasion but for his
assistance throughout the years in per-
fecting this measure. I think the bill in
its present form protects the right to
privacy of Federal employees without
doing any substantial injury to the nec-
essary processes of government.
The PRESIDING OVEICER. The bill
is open to amendment. If there be no
amendment to be proposed, the question
is on the engrossment and third reading
of the bill.
The bill (S, 1688) was ordered to be
engrossed for a third reading, read the
third time, and passed, as follows:
S. 1688
Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled,
SECTION 1. It shall be unlawful for any
officer of any executive department or any
executive agency of the United States Gov-
ernment, or for any person acting or pur-
porting 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 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 c,ontined in
this subsection shall be construed to prohibit
inquiry concerning the citizenship of any
such 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 be 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 activities 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 or-
ganizations to advise, instruct, or indoctri-
nate 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 department or
agency, or the development of skills, knowl-
edge, or abilities which qualify him for the
performance of such duties: Provided, how-
ever, That nothing contained In this sub-
section shall be construed to prohibit taking
notice of the participation of a civilian em-
ployee In the activities of- any professional
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
performance 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 performance of such duties.
(d) To reqiure or request, or to attempt to
require or request, any civilian employee of
the United States serving in the department
or agency to make any report concerning any
of his activities or undertakings unless such
activities or undertakings are related to the
performance 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 performance of such duties, or unless
there is reason to believe that the civilian
employee is engaged in outside activities or
employment in conflict with: his official
duties.
(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 be 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 fur-
ther, however, That this determination shall
be made in individual cases and not pursu-
ant to general practice or regulation govern-
ing the examination of employees or appli-
cants according to grade, agency, or duties:
Provided further, however, That nothing
contained in this subsection shall be con-
strued to prohibit an officer of the depart-
ment or agency from advising any civilian
employee or applin'ant of a specific charge of
S 3055
sexual misconduct made against that per-
son, and affording him an opportunity to
refute the charge.
(f) To require or request, or 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
take any polygraph test 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 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 en-
deavor 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, Com-
monwealth, territory, or possession of the
United States, or to attend any meeting held
to promote or support the activities or un-
dertakings of any political party of the
United States or of any State, district, Com-
monwealth, territory, or possession of the
United States.
(h) To coerce or attempt to coerce any
civilian employee of the United States serv-
ing 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
donations 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
acting or purporting to act under his au-
thority, from calling meetings and taking
any action appropriate to afford any civilian
employee of the United States the opportu-
nity voluntarily to invest his earnings in
bonds or other obligations or securities issued
by the United States or any of its depart-
ments or agencies, or voluntarily to make
donations 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 department
or agency to diclose any items of his property,
income, or other assets, source of income, or
liabilities, or his personal or domestic ex-
penditures or thoose of any member of his
family or household: Provided, however, That
this subsection shall not apply to any civil-
ian employee who has authority to make any
final determination with respect to the tax
or other liability of any person, corporation,
or other legal entity to the United States, or
claims which require expenditure of moneys
of the United States: Provided further, how-
ever, That nothing contained in this subsec-
tion shall prohibit the Department of the
Treasury or any other executive department
or agency of the United States Government
from requiring any civilian employee of the
United States to make such reports as may
be necessary or appropriate for the determin-
Lnation of his liability for taxes, traiffs, cus-
tom 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 tp indicate a
conflict of interest in respect to the perfom-
ance of any of the official duties to which he
is or may be assigned.
(k) To require or request, or to attempt to
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require or request, any civilian employee of
the United States serving in the department
or agency, who is 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: Provided, how-
ever, That a civilian employee of the United
States serving in the Central Intelligence
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 server, or by counsel who has
been approved by the agency for access to
the information involved.
(1) To discharge, discipline, demote, deny
promotion to, relocate, reassign, or otherwise
discriminate in regard to any term or con-
dition of employment of, any civilian em-
ployee of the United States serving in the
department or agency, or to threaten to com-
mit any of such acts, by reason of the re-
fusal or failure of tuch 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 em-
ployee of any right granted or secured by this
Act.
SEC. 2. 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 em-
ployee 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 Government, 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 con-
nected with him by blood or marriage, or
concerning his religious beliefs or practices,
or concerning his attitude or conduct with
respect to sexual matters: Provided, how-
ever, That nothing contained in this sub-
section shall be construed to prevent a phy-
sician 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 de-
termine whether or not such individual is
suffering from mental illness: Provided fur-
ther, however, That this determination shall
be made in individual cases and not pur-
suant to general practice or regulation gov-
erning the examination of employees or ap-
plicants 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 ci-
vilian employee or applicant on a specific
charge of sexual misconduct made against
that person, and affording him an oppor-
tunity 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
or employment in the executive branch of
the United States Government, or any per-
son applying for employment in the execu-
tive branch of the United States Govern-
ment, or any civiliar. employee of the United
States serving in any department or agency
of the United States Government, to take
any polygraph test designed to elicit from
him information concerning his personal i--
lationehip with any person connected 1,S, th
him by blood or marriage, or concerning is
religious beliefs or practices, or concern, eg
his attitude or conduct with respect to Si s-
isal matters.
SEC. 3. It shall be unlawful for any cr.s-
missioned officer, as defined in section +
of title 10, United States Code, or any nit r -
her of the Armed Forces acting or pullet -
Ing to act under his authority, to require + sr
request, or to attempt to require or mom ,t,
any civilian employee of the exectri e
branch of the United States Governai, ,t
under his authority or subject to his sup + -
vision to perform any of the acts or milers t
to any of the requirements made unlaw tl
by section 1 of this Act.
SEC. 4. Whenever any officer of any exe,
tive department or any executive agency I
the United States Government, or any per. .+n
acting or purporting to act under his mt-
thority, or any commissioned officer as t+ +--
fined in section 101 of title 10, United Sta
Code, Or any member of the Armed For es
acting or purporting to act under his autbs r-
ity, violates or threatens to violate any of tto
proeisiOns of section 1, 2, or 3 of this A
any civilian employee of the United Ste ,
serving in any department or agency of to
United States Government, or any person e
plying for employment in the execut
branch of the United States Government,
'any person seeking to establish civil sere -;t?
status hr eligibility for employment in to
executive branch of the United States M +-
ernment, affected or aggrieved by the vio c.'
tion or threatened violation, may bring a
civil action in his own behalf of himself ti.,o1
others similarly situated, against the offer t-
lug officer or person in the Unitedi+States ci
trict court for the district in which the vt e-
lation occurs or is threatened, or the it
trict in which the offending officer or le 4-
son is found, or in the United States Distr'et
Court for the District of Columbia, to ty e-
vent the threatened violation or to obtetn
redress against the consequences of the vio
tion. The Attorney General shall defend
officers or persons sued under this secti-m
who acted pursuant to an order, regulati, +-+
or directive, or who, in his opinion, dicl'nit
willfully violate the provisions of this A
Such United States district court shall hr. ;e
Jurisdiction to try and determine such etii
-
action irrespective of the actuality or amon it
of pecuniary injury done or threatened, and
without regard to whether the aggrie. , a
party shall have exhausted any administ
tire remedies that may be provided by lits +i.
and to issue such restraining order, int
locutory injunction, permanent injunctlt
or mandatory injunction, or enter such otl
Judgment or decree as may be necessary a
appropriate to prevent the threatened vio ,-
tion, or to afford the plaintiff and others at -
ilarly situated complete relief against ?tl.5
consequences of the violation. With the wi-
ten consent of any person affected or 1- ?
grieved by a violation or threatened v10
tion of section 1, 2, or 3 of this Act, any em-
ployee organization may bring such act ,ti
on behalf of stich person, or may intervert
in such action. For the purposes of this es --
tion employee organizations shall be cc
strued to include any brotherhood, count
federation, organization, union, or proh
sional association made up in whole or ,i
part of civilian employees of the Unit+ d
States and which has as one of its purpo 3
dealing with departments, agencies, comm -
sions, and independent agencies of tne
United States concerning the condition a d
terms of employment of such employees,
Sec. 5. (a) There is hereby established it
Board on Employees' Eights (hereinafter -
ferred to as the "Board"). The Board shall 0
composed of three members, appointed
the President, by and with the advice a'- 'I
consent of the Senate. The President she ti
designate one member as chairman. No rn,
7, 191'4
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 mem-
ber 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.
(c) -Members of the Board shall be com-
pensated at the rate of $75 a day for each
day spent i i the work of the Board, and
shall be paiRt actual travel expenses and per
diem in lien of subsistence expenses when
away from their usual places of residence,
as authorized by section 5703 of title 5,
United Stotts Cade.
(d) Two members shall constitute a quo-
rum for the transaction of business.
(e) The Board may appoint and fix the
compensatio t of such officers, attorneys, and
employees, and make such expenditures, as
may be necessary to carry out its functions.
(f) The B sard shall make such rules and
regulations us 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. With n ten days after the receipt of
any such complaint, the Board shall furnish
notice of the time, place, and nature of the
hearing there= to all interested parties.
The Board shall render its final decision with
respect to arty 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 w th employment of the category
in which any alleged violation of this Act
occurred or t3 threatened shall be given an
opportunity to participate in each hearing
conducted ueder this section, through sub-
mission of weitten data, views, or arguments,
and in the discretion of the Board, with op-
portunity for oral presentation. Government
employees culled 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 irea to do SO without incurring
travel cost os 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.
(i) Insoftm 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 conducing agency
hearings, shall be applicable to hearings
conducted 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 p mties 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 employ-
ee of the United States, the Board shall
Immediately (1) issue and cause to be served
on such officer or employee an order requir-
ing stich officer or employee to cease and
desist from the unlawful act or practice
which constitutes a violation, (2) endeavor
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to eliminate any such unlawful act or prac-
tice by informal methods of conference, con-
ciliation, 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, iskie an official repri-
mand against 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 office': 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 of-
ficer appointed by the President, by and with
the advice and consent of the Senate, trans-
mit 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 tir
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
constitutes such a violation by informal
methods of conference, conciliation, and per-
suasion, and (3) refer its determination and
the record in the case to any person author-
ized to convene general courts-martial under
section 822 (article 22) of title 10, United
States Code. Thereupon such person shall
take immediate steps to dispose of the mat-
ter under chapter 47 of title 10, United
States Code (Uniform Code of Military Jus-
tice).
(m) 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. In 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
under 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 substan-
tial 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 report on its activities under this section
during the immediately preceding calendar
year, including a statement concerning the
nature of all complaints filed with it, its de-
terminations and orders resulting from hear-
ings thereon, and the names of all officers
or employees of the United States with re-
spect to whom any penalties have been im-
posed under 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 sec..
tion.
? SEC. 6. 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
polygraph test, or to take a psychological
any civilian employee or applicant to take a
test, designed to elicit from him information
concerning his personal relationship 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, 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
such test or information is required to pro-
tect the national security.
SEC. 7. No civilian employee of the United
States serving in the Central Intelligence
Agency or the National Security Agency, and
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 complaint
to the agency concerned about the threatened
or actital violation of this Act and affording
such agency one hundred and twenty days
from the date of such complaint 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 au-
thorities available to the National Security
Agency under section 833 of title 50, United
States Code, to terminate the employment
of any employee.
SEC. 8. 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 in-
consistent with the provision of any statute
or Executive order shall be conclusive and-
no such information shall be admissible in
evidence 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.
See. 9. This Act shall not be applicable
to the Federal Bureau of Investigation.
SEC. 10. 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 exis-
tence 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 established, the
employee or applicant has obtained complete
protection against threatened violations or
complete redress for violations, such action
may be pleaded in bar in the United States
district court or in proceedings 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 inde-
pendent action under the remaining section.
SEC. 11. If any provision of this Act or the
application of any provision to any person
or circumstance shall be held invalid, the
remainder of ths 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.
Mr. ERVIN. Mr. President, I ask
unanimous consent that the text of the
bill and a statement prepared by me with
respect to the bill be printed in the
RECORD at this point.
There being no objection, the bill and
the statement were ordered to be printed
in the RECORD, as follows:
Mr. ERVIN. Mr. President, over the past
decade I have taken the floor many times to
urge passage of legislation to insure that the
privacy of federal employees is respected and
protected. My colleagues here in the Senate
S 3057
have been unstinting in their support of my
efforts. They have repeatedly approved,
usually by unanimous votes, the Federal Em-
ployee Privacy Bill?also known as the "Fed-
eral Employees Bill- of Rights"?which was
again passed by the Senate this afternoon as
S. 1688.
I am gratified by the Senate's renewed
unanimous approval of these privacy-pro-
tective measures. It is now up to the House
of Representatives to vote on this legislation
which heretofore has languished and died in
the House Post Office and Civil Service Com-
mittee. This year I understand that, through
the good efforts of Representative Waldie
and his colleagues on the House Retirement
and Employee Benefits Subcommittee, who
have recently held hearings on this legisla-
tion, there is a good chance that the Federal
Employee Privacy Bill will at last be reported
out for a vote on the House floor. I urge my
friends in the House of Representatives to
consider favorably this federal employee
privacy legislation, which the Senate has so
often approved in the past.
I have been impressed in recent days by
the broad bipartisan support for seeking
ways to assure individual Americans of their
right to privacy. Everywhere I turn these
days I am pleased to see new evidence of this
bipartisan determination to protect indi-
vidual privacy from unwarranted govern-
mental. interference. Forty-four Senators, on
both sides of the aisle, have joined me in
cosponsoring S. 1688, the Federal Employee
Privacy Bill.
On another front in the fight to protect
individual privacy, Senators of both political
parties, as well as the Justice Department, are
currently cooperating in drawing up legisla-
tion designed to protect the privacy of in-
dividuals who may be the subjects of crimi-
nal justice information systems. As Chairman
of the Constitutional Rights Subcommittee,
I am in the process of chairing hearings re-
garding this important privacy legislation. I
am particularly impressed by the broad areas
of agreement among virtually all interested
parties that more effective constraints on the
unwarranted collection, storage and dissemi-
nation of criminal justice information are
needed now. ?
Moreover, the President's recent Address on
Privacy underscores the Administration's
comitment to the protection of individual
privacy as "the most basic of all individual
rights." The President concluded his address
with a statement in which I emphatically
concur:
"In the first half of this century, Mr. Jus-
tice Brandeis called privacy the 'right most
valued by civilized men.' In the last half of
this century, we must also make it the right
that is most protected."
I look forward to the "direct enforceable
measures" which the President has pkomised
as the fruits of this concern about individ-
ual privacy.
The passage of the Federal Employee Pri-
vacy Bill by the Senate today is further evi-
dence of this broad bipartisan support for the
protection of individual privacy. I urge both
Democratic and Republican Members of the
House of Representatives, as well as the
President to join the Senate in taking posi-
tive privacy protective action by seeing that
this legislation designed to protect the pri-
vacy of government servants becomes law.
The need for this legislation is greater now
than ever before. The report on the Federal
Employee Privacy Bill (S. 1688) , which I ftled
earlier this week, outlines in great detail the
kinds" of abuses and invasions of privacy
which the federal employee privacy legisla-
tion is designed to prevent. Let me take just
a moment now to share with you some of the
additional threats to individual privacy
which federal employees have brought to my
attention in the past few weeks.
One instance involves some constituents
of mine down in Durham, North Carolina.
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S 3058 CONGRESSIONAL RECORD ? S NATE
March 7, 1974
They are data processing, administrative and
clerical personnel (GS-4 through GS-13) Who
work for the Environmental Protection
Agency in the Data System/is and Procurement
Management Divisions. Early this year twenty
or more of these folks received a notice that
"your position has been identified as one re-
quiring a post-appointment full field investi-
gation." They were instructed to complete, in
triplicate, Form 86, "Security Investigation
Data for Sensitive Position," as well as Form
87, the FBI fingerprint form.
Now, as Mr. Huston Blair of Durham, North
Carolina, who informed me of this matter,
pointed out, none of these twenty data proc-
essing, administrative and clerical workers
were in any way involved in matters affecting
the national security. Nor did they hold posi-
tions classified as sensitive. It sounded to
Huston Blair, and it sounds to me, like un-
necessary government snooping into the pri-
vate lives of its employees.
I asked the Environmental Protection
Agency to look into the matter and explain
to me why these twenty civil servants down
in North Carolina should be required to
provide, on pain of criminal penalties, per-
sonal information about themselves, mem-
bers of their families (living and dead) and
their associations, so that their "character
and honesty" can be evaluated. The En-
vironmental Protection Agency replied that
these so-called "security investigations" of
people in non-sensitive clerical and adminis-
trative positions were standard operating
procedures "consistent with policies of other
regulatory agencies.''
In addition, within the past few days I
learned about some secret files kept hy all
supervisors of Air Force civilian employees.
The Air Force Regulation under which the
files were established describes them as con-
taining "a record of the employee's conduct,
performance evaluations, reprimands, com-
mendations, debts, and complaints that
may be necessary and useful in making and
supporting decisions of' work assignments."
This regulation further provides that "an
employee has no right to see" his record. On
the other hand, his record must be available
"for easy review by CPO [Central Personnel
Office] representatives, higher level super-
visors, and others authorized to make such
a review." An Air Force civilian employee
has described to me some of his difficulties
in trying to find out about what he describes
as "derogatory and libelous information
about me, my personal life and medical his-
tory," which has been made a part of this
secret file.
I have also been reading recently about
revised instructions for preparing and sub-
mitting "Minority Group Designator data,"
as , well as revisions of Agency Personnel
Management Evaluation Systems which are
to incluude various reports, evaluations and
"personnel questionnaire surveys." Now, I
do not yet know precisely what al? these
plans and changes mean for the privacy of
federal employees. But these changes do
demonstrate the fact that without the enact-
ment of federal employee privacy legislation,
the possibilities for increasing intrusions
into the private lives of federal employees
are unlimited.
In speaking about "government bureauc-
racies [which] seem to thrive on collecting
additional information," President Nixon
called, in his Address on Privacy, for "rea-
sonable limits on what is collected and how
it is used." I submit that Presidential sup-
port for the Federal Employee Privacy Bill,
which has just passed the Senate, is perhaps
the most appropriate way I can think of for
him to begin setting these reasonable limits
on governmental intrusion into people's
private lives.
It is said that charity begins at home. I
think that is where privacy begins, too. I
hope that the President will see lit to begin
his promised privacy protective measures
right here in the Executive Branch,
statutory protections for the privacy of is
own people, the millions of federal employ t as
whose privacy is Invaded perhaps more rn a-
lessly than any other Americans.
ORDER OF BUSINESS
ROBERT C. BYRD. Mr. Pre dent, what what is the pending matter bet- e
the ate?
The RESIDING OrrICER. There Is
no mat r pending before the Senate it
this poin
HOUSING COMMUNITY DEVI. ?-
OP T ACT OF 1974
Mr. ROB T C. 13YRD, Mr. Pre
dent, I ask un mmous consent that the
Senate proceed to the consideration st
Calendar No. 66 S. 3066, so that it inqy
become the pend g business, and t
no time be cons on the bill toff, v.
The PRESIDING OFFICER. The 1 11
will be stated by titl
The second assista legislative cit. it
read as follows:
A bill (S. 3066) to co I date, simpil t,
and improve laws relative housing 0,,d
housing assistance, to prov e Federal -
sistance in support of comm ity devei ?-
ment activities, and for other urposes.
The PRESIDING Olaf' ICE Walla It
objection, the Senate will pro ed to ts
consideration.
Mr. ROBERT C. BYRD. Mr. Pre .-
dent, under the agreement pre 'on ,'y
entered into, I ask the Chair wh .r
the amendments to be offered by Vita
Senator from New York (Mr. JAVd,
which are specified in the agreeme,
would be in order regardless of th
germaneness.
The PRESIDING 01410iCER. Unt?
the precedents of the Senate, nate, d
amendments under a unanimot -
consent agreement would not have o
be germane.
Mr. ROBERT C. BYRD. I thank
Chair. That was my intention in re i -
pounding the request.
So that there will be no question abe ft
it, I ask unanimous consent that the e
amendments by Mr. JAVITS be in ord4 r.
regardless of their germaneness.
The PRESIDING OFFICER. Withe A
objection, it is so ordered.
ORDER FOR ADJOURNMENT UNff.
10:30 A.M. TOMORROW
Mr, ROBERT C. BYRD. Mr. Presidet 1.
I ask unanimous consent that when 'V e
Senate completes its business today It
stand in adjournment until the hour 4
10:30 a.m. tomorrow.
The PRESIDING OFFICER. Witbt t
objection, it is so ordered.
AUTHORITY FOR STAFF IVIEMBEI
TO RECEIVE BIT RESOV
TIONS, AND AMENDMENTS AT `11111,:'
DESX WHE/4 SIGNED AND Pit.?
SENTED BY A SENATOR DURO ,1
THE REMAINDER OF THIS CO -
GRESS
Mr. ROBERT C. BYRD. Mr. Presidel
I ask unanimous consent that during Ie
remainder of this Congress it be in onti,,r
for the proper members of the staff,
receive bills, resolutions, and amend-
ments at the desk when signed and
presented by a Senator at any time dur-
ing the day of a session of the Senate
when no question is raised thereon, and
that in accordance with the rules, it be
in order to refer them to the appropriate
committee or to refer the amendments,
or order them printed and to lie on the
table, as requested by the said Senator.
May I say to the Senator from Texas
that this request has been cleared earlier
today with the leadership on his side
of the aisle.
The PRESIDING OFFICER. Without
objection, it is so ordered.
TRANSACTION OF ROUTINE
MORNING BUSINESS
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that there now
be a period for the transaction of rou-
tine morning business, with statements
therein limited to 5 minutes.
The PRESIDING 0.teriCER. Without
objection, it is so ordered.
COMMUNICATIONS FROM EXECU-
TIVE DEPARTMENTS, ETC.
The ACTING PRESIDENT pro tem-
pore (Mr. BARTLETT) laid before the Sen-
ate the following letters, which were
referred as indicated:
REPOPT OF DEPARTMENT OF NAVY
A letter from the Secretary of the Navy,
transmitting a report of the facts concerning
action pertaining to the Fleet Missile Sys-
tems Analysis and Evaluation Group, Co-
rona, Califotnia (with an accompanying re-
port). Referred to the Committee on Armed
Services.
PROPOSED LEGISLATION OF SMALL BUSINESS
ADMTNISTRATION
A letter from the Administrator, United
tates Small Business Administration, trans-
tting a draft of proposed legislation to
fy the authority of the Small Business
nistration, and for other purposes
an accompanying paper) Referred to
ommittee on Banking, Housing and
,Affair;.
Eli LEGISLATION BY FEDERAL ENERGY
OFFICE
from the Administrator, Federal
transmitting a draft of pro-
posed legis ion to provide for the labeling
of major aPpllanaes and motor vehicles to
promote and 'effect energy conservation, and
for other purAoses (with an accompanying
papery. Refarrell to the Committee on Com-
merce.
REPORT Op BIGITWAY TRUST FUND
A letter from the Fiscal Assistant Secre-
tary of the Treasury, transmitting, pursuant
to law, the eighteenth annual report on the
financial condition and results of the opera-
tions of the Highway Trust Fund dated
June 30, 1(373 (with an accompanying re-
port) : Referred to the Committe on Finance.
?
REPORT OF OVERSEAS PRIVATE INVESTMENT
CORPORATION,
A letter ft )m the President, Overseas Pri-
vate Investment Company, \transmitting,
pursuant to law, a report on "P sibilities of
Transferring OPIC Programs to e Private
Sector" (with an accompanying r ort). Re-
ferred to tha? Committee on Fore n Rela-
tions.
PROPOSED LEGISLATION BY DEPARTMENT
OF STATE
A letter from the Acting Assistant Secre-
tary for Congressional Relations, Department
of State, transmitting a draft of proposed leg-
cl
A
(wi
the
Urb
PROP
A lett.
Energy 0
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In conclusion, Mr. President, I would
add that the purpose of the bill I intro-
duce today is to protect the privacy and
first amendment rights of all Americans.
While the bill would not affect law en-
forcement or State or local governments,
it would prohibit the compelling of Amer-
icans to submit to polygraphs in order
to obtain or to hold a job in the Federal
Government or in industries whose ac-
tivities affect interstate commerce. The
wealth of considered opinion on the un-
reliability of lie detectors and the un-
fairness of permitting them to be used as
a test of employment has persuaded me
that the time has now come for Congress
to express itself against their use.
I ask unanimous consent that the text
of the bill be printed in the RECORD.
There being no objection, the bill was
ordered to be printed in the RECORD as
follows:
El. 2836
Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled,
SECT/ON. 1. It shall be unlawful for any
officer or employee of any executive depart-
ment or agency or any individual acting
under the authority of such officer and em-
ployee to do the following:
(a) to require or request, or to attempt
to require or request, any officer or employee
of the United States, or any individual ap-
plying for employment as an officer or em-
ployee of the United States, to take any
polygraph test in connection with his serv-
ices or duties as such officer or employee,
or in connection with such individual's ap-
plication for employment;
(b) to deny employment to any individual,
or to discharge discipline, or deny promotion
to any officer or employee of the United
States, or to threaten to commit any such
act by reason of his refusal or failure to
submit to such requirement or request.
SEC. 2. It shall be unlawful for any person
engaged in any business or other activity
in or affecting interstate commerce, or any
individual acting under the authority of
such person to do the following:
(a) to require or request, or to attempt
to require or request any officer or employee
employed by such person or any individual
applying for employment in connection with
such business or activity to take any poly-
graph test in connection with his services
or duties or in connection with his appli-
cation for employment.
(b) to deny employment to any individual,
or to discharge, discipline, or deny promo-
tion to any officer or employee employed in
connection with such business or activity,
or to threaten to commit such act by reason
of his refusal or failure to submit to such
requirement or request.
Szc. 3. Whoever willfully violates or will-
fully attempts to violate any of the pro-
visions of this Act shall be guilty of a mis-
demeanor, and, upon conviction, shall be
punished by a fine not exceeding $1,000, or
by imprisonment not exceeding one year, or
by both such fine and imprisonment.
Sze. 4. (a) Whenever?
(1) any officer or employee of any execu-
tive department or any executive agency of
the United States Government, or any per-
son acting or purporting to act under his
authority, or
(2) any commissioned 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, or
(8) any person engaged in any business or
other activity in or affecting interstate com-
merce, or any individual acting under the
EnEthority of such person.
TiOlates or threatens to violate any of the
provisions of section 1 or 2 of this Act, any
employee or officer of the United States, or
any person applying for employment in the
executive 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, or any individual apply-
ing for employment in connection with any
business or activity engaged in or affecting
interstate commerce, or any employee or of-
ficer employed by a person engaged in such
business or activity, who is affected or ag-
grieved by the violation or threatened viola-
tion, may bring a civil action in his own
behalf or in behalf of himself and others
similarly situated, against the offending of-
ficer or employee or person in the United
States District Court for the district in which
the violation occurs or is threatened, or for
the district In which the offending officer or
person is found, or in the United States Dis-
trict Court for the District of Columbia, to
prevent the threatened violation or to obtain
redress against the consequences of the vio-
lation.
(b) Such United States district court shall
have jurisdiction to try and determine such
civil action irrespective of the actuality or
amount of pecuniary injury done or threat-
ened, and without regard to whether the ag-
grieved party shall have exhausted any ad-
ministrative remedies that may be provided
by law, and to Issue such restraining order,
interlocutory injunction, permanent injunc-
tion, or mandatory injunction, or enter such
other judgment or decree as may be necessary
-or appropriate to prevent the threatened vio-
lation, or to afford the plaintiff and others
similarly situated complete relief against the
consequences of the violation.
(a) With the written consent of any person
affected or aggrieved by a violation Or threat-
ened violation of section 1 or 2 of this Act,
any employee organization may bring such
action on behalf of such person, or may in-
tervene in such action. For the purposes of
this section, employee organizations shall be
construed to include any brotherhood, coun-
cil, federation, organization, union, or profes-
sional organization made up in whole or in
part of employees and which has as one of
its purposes dealing with departments, agen-
cies, commissions, independent agencies of
the United States, or with businesses and
Industries engaged in or affecting Interstate
commerce, concerning the conditions and
terms of employment of such employees.
By Mr. HART (for himself, Mr
HUGH Scoxr, Mr. CASE, and M
CLARK) :
S. 2 37. A bill to regulate the r-
state a d foreign commerce tradi g of
futures ontracts in order to prey t un-
fair an deceptive acts and p tctices,
Referred the Committee o Agricul-
ture and restry.
S EXCHANGE T
Mr. HART. r. Preside t, today, with
Senators Iluc SCOTT Republican of
Pennsylvania, IFF0 CASE, Republi-
can of New Jer and DICK CLARK,
Democrat of Iowa am introducing a
comprehensive bi regulate the trad-
ing of futures ntr. ts. Senator HUM-
PHREY and Se tor M VERN previously
introduced b s to stren hen regulation
of futures .ntracts as d ? some Mem-
bers of t House. It is my ope that all
our eff to soon will result l action in
this i' ? .rtant field.
T the uninitiated, futures dtracts
ar mystifying. They are simple the-
y but complex in fact. Basically -fu-
mes contract is an agreement to biIi or
sell a good, service or intangible for e-.
S 23495
ivery in the future. The contract is verb
1 only. It is traded on an exchan
uch like a stock. The contract te s
e set forth in the rules and re a-
ti ns of the exchange on which I is
tr. ded. A person who wants to buy o sell
a tures contract places an order th a
br er, who may sell stocks as w'11 as
fut es. The order then is execu ed by
a fl r broker on one of the exc anges
whe the particular contract is raded.
Ther are 13 active futures e hange.s
whic for the most part, trade ? ifferent
contr ts.
The -xchange rules state th quantity,
qualit and delivery places of he under-
lying god, service or intang le which is
cover' it by a contract. Des .ite the fact
that fu ures contracts p vide for de-
livery, s ch delivery takes ace less than
3 percen of the time. Fu es contracts,
then, ar not a device to uy or sell pro-
ducts, b t rather a p per transaction
that van i us commerci 1 interests claim
they use ? hedge aga st fluctuations in
prices. 0 ers who ave no direct in-
terest in e produc also trade futures
contracts it the hop of making a profit.
They are c lied spe ulators.
Futures c ntract are traded on a va-
riety of thi s. In luded are such agri-
cultural co odit as cotton, corn, soy-
beans and w at nd food products pro-
duced primari o tside the United States
such as cocoa :ar, and coffee. Non-
agricultural pr ncts also are involved,
such as plywood propane, silver and var-
ious moneys, fo example, Japanese yen,
British pound, e tsche mark, U.S. silver
coins. It rece tl has been announced
that trading 11 c mence in ship char-
ters and is , eing considered on home
mortgages d pet oleum. Trading has
grown enor Dimly. 1972 the volume of
trading was almost 00 billion. In 1973
it is expec d to be $ 00 billion. In 1969
it was $81 ion.
The pri e of futures contracts poten-
tially affe ts everyone f k r they serve as a
basis for sroducer, mid. eman and con-
sumer rices. For exti, pie, when a
farmer ? rings his grain ,? the country
elevato operator for sal, the country
evelat ? often will pay th farmer based
on th futures price, less ch rges for han-
dling, storage, and tran -.ortation. A
come,: ny selling flour to a baker to be
deliv red some months hen e, will often
con act with the baker at the futures
pri for wheat for the um th nearest
der ery time plus or minus a ifferential
for processing and other cos . As the
fu res price is referred to in t e various
st ? !es of processing, the price t the ulti-
. te consumer in influenced b the fu-
)res price.
Commercial interests claim t at they
e futures contracts to shift th risk of
rice fluctuations to the specula . They
contend that without futures co tracts
consumers would have to bear the isk in
the form of higher prices. This is th eco-
nomic justification given for the ; ? 'st-
ence of futures markets. Some p: ?ple
contend futures trading is merely le al-
ized gambling. In any case, It app rs
futures trading is here to stay. Th it
Is crucial that it be adequately
lated.
/ Presently, there is a law?the Co
modity Exchange Act?which regulat s
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specifically listed commodities. It is ad-
ministered by the Department of Agri-
Vulture's Commodity Exchange Author-
ity. The act does not apply to most non-
agricultural products such as money and
plys\
' od or to those products grown out-
side e United States like sugar, coffee
and c ,oa or the anticipated contracts
in home; mortgages and petroleum. In
1972 over, $130 billion in futures con-
tracts?oro percent of the total?were
completely u*egulated.
The attention of Congress and the
press has focuSed on futures contracts
in the past seve I months because of
the volatility of tle markets and rising
food costs. Well-pu icized is the fact
that the soybean pricb. rose about $3.30
ds,e\
to $12.90 a bushel an has settled at x
around $6 today. Corn a d wheat also
had gigantic price rises a did cocoa--
which more than doubled. The causes of
the volatility of the futuressamarkets,
some claim, were a lax Coramo)a
the kt; Ex-
change Authority, e Russian heat
deal, manipulation of the markeea by
giant grain companies, excessive spec -
tion, or all of those things. Others s
merely the the markets reflected supply
and demand. To me, the cause is un-
clear. What is important is that the wild
fluctuations of those markets brought
them to the public's attention. For the
first time many people became aware of
futures markets?and aware when the
CEA was referred to, it did not neces-
sarily mean the Council of Economic Ad-
visors, but might mean the Commodity
Exchange Authority.
Scrutiny of the futures market re-
vealed many disturbing things?
First. Many contracts involving prod-
ucts essential to our well being were com-
pletely unregulated. '
Second. Contracts that were regulated
were under the jurisdiction of the De-
partment of Agriculture although farm-
ers seldom trade in futures and although
futures contracts are much more like an
Insurance policy or a security than they
are a sale of agricultural commodities.
Third. The Commodity Exchange Au-
thority lacks sufficient personnel, money
and legislative authority adequately
regulate the markets.
These conditions invite abuse o the
markets.
The ideal market is one whic effects
economic factors?supply, d and, fi-
nancial conditions, and in e case of
agricultural products, w ther condi-
tions, and crop failures. ideal market
Is one not subject to anipulation by
giant corporations or nscrupulous in-
dividuals. The thrust at this bill is to pre-
vent any form of d - .rtion of the mark-
ets so that they y function freely.
To date, mu of the regulation has
been left to t exchanges. While, in-
deed, some a the exchanges must be
compliment i on their self-regulation,
one canno expect those trading in this
market to lice themselves as diligently
as is ne ssary. It is difficult to act both
as the w enforcer and the accused.
Ce inly, day-to-day operations of
the xchange should be left to the ex-
ch ges. So should certain functions?
Ii e the setting of margins?with which
e exchange may be more intimately
acquainted than a Federal agency.
However, a Federal agency shoult have
broad supervisory powers over as ex-
change, even as to something like tiar-
gins. It is conceivable that an exc ange
might set a margin at 1 percent or 2
percent, a figure, I think, everyone ould
agree is too low. In such a situatio , the
Federal Government should have aver
to change the margin. Thus, arhila var-
ious sections of the bill give the exe ange
power to make rules and regulate 5 re-
garding many functions of the owl aige,
section 202 provides that the Comm sion
may modify rules of the exchange, titer
hearings and findings supported by hose
hearings. Basically, this bill gio the
initial decisionmaking power to ti ex-
change, with oversight power b the
Commission.
The bill I introduce today, as the - in-
troduced by Senators Hussman, and
McGovalus, sets up an indepe dent
agency to regulate trading of ft urea
contracts. This is essential for ss, reral
reasons. First, some futures cons 'at
cover products, services, and intare b ,
which are not agricultural in n sure.
Second, a futures contract does , re-
late directly to the underlying duct
\hut rather is more like insur or a
security. Third, this is an ind try Mob
haX grown to a half a trlllipi doll, ls in
voluine?a size which wptld see a to
make',4 merit a special 1?ncy ta deal
with volume trading a its roblems. Four, not only -, the tc
volading ge, but a fair
market ise ssential reasonable .on-
sumer prices\
This bill diffkrs rom those which 4ave
been introduced.ii the Senate in Ss 'eral
significant way.:
First. It s a ' comprehensive bill.
tIc
Rather tha amend
the Corner Tiny
Exchange ct, which as been am( Ided
18 times nd is now an ost Incas pre-
hensib this bill begins alaew. Will) this
may c e some members o the ind Btu
to fe insecure, surely if ware t ying
to prove the law it should pill into
m ern intelligible language a " aose
rts of the Commodity Exchari'lx Act
hich are still relevant to the tradi- tg of
futures contracts are incorporated i _ the
bill.
Second. It requires exporters an im-
porters to report to the Coramissio in-
formation relating to the initiation, om-
pletion or termination of negotiatim , for
exports or imports. The purpose : to
keep the Commission informed cs the
size of exports or imports so that i, the
amount is so substantial that it aia,y
cause a chaotic market the Comini don
may take action in the public int rest.
This provision is aimed at preventin the
feverish trading?and distorted prl 4,s?
which followed announcement oi the
Russian grain sale.
Third. It requires the clearing) 'use
or the exchange to make a daily re ord
showing the time of each trade, the on-
tract, the price, the delivery month and
the name of the trader. While sons,? ex-
changes make part of this inforin tion
available, none of them identify the
trader because the broker is not req f red
to give the name of the trader to tit ex-
change. This bill requires him to d so.
Certainly a case can be made that the
name of the trader should not be a ,ade
public, or else other traders might ake
unfair advantage of such information.
However, it seems essential that e
name of the trader, along with the er
information required, be availabl the
Commission. This would allow e Com-
mission to examine who had ade what
transactions during a giv day and
might well alert it to a po tial manipu-
lation of the market.
Fourth. The bill foils'? s foreign traders
from trading on Am can futures mar-
kets unless they po a surety bond which
will be forfeited' they refuse to submit
to the jurisdictIon of the courts, the
Commission an exchange. Recently,
increasing mbers of foreign individuals
and companies have begun to trade on
U.S. fu es markets. If those companies
do no do business in the United States,
ther is no way to obtain jurisdiction
ov?them should they violate a law of
te Untied States. This provision would
ure that they submit to the jiirisdic-
ton of U.S. authorities or forfeit a slim
of money.
Fifth. The bill requires that a broker
only take orders from persons he has
reasonable grounds to believe are finan-
cially suited to deal in futures contracts
and who sign a statement indicating that
they understand the high probability of
loss. Similarly, it requires advertisements
and promotional literature to state that
the trading of futures contracts is highly
speculative. Studies indicate that futures
trading is highly hazardous. These pro-
Visions would discourage anyone from
dealing in futures contracts unless they
are financially able to do so, This pro-
tects both the potential trader and the
marketplace by keeping those out of it
who are not financially able to meet its
obligations.
Sixth. This bill requires that all per-
sons who deal with the public?brokers,
salesmen and investment advisers?and
contract analysts, take examinations to
demonstrate an understanding of the fu-
tures market. This should protect the
Public and the market from uninformed
traders so the marketplace should func-
tion better.
Seventh. It prohibits any person from
engaging in unfair and deceptive prac-
ices: Some are defined in this bill, This
ovision was made broad so that the
Co mission, either by rule or in court,
wouS have the power to prohibit unfair
and eceptive schemes as they are
devis
Eighth. 4 prevents the fixing of Com-
mission rates. In the past, members of
exchanges h ve price-fixed the amount
of commissio rates. This practice is
being challenged4n a suit by the Depart-
ment of Justice. Xtlso was challenged in
some private suitS, which have been
settled and would phse out one of the
three types of co ions in 4 years.
This provision goes further and makes
price-fixing of all c,ommissions illegal,
which would seem in accordance with the
antitrust laws.
Ninth. It permits the COmmission to
make exceptions for so-called world con-
tracts--products which are, produced
primarily outside the United States and
traded on foreign and U.S. achanges.
Exchanges trading such products con-
tend they need certain exceptions. If this'
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CONGRESSIONAL RECORD ?SENATE December 20, 1973
automatically accepted the concluding sen-
tence "Consider him a security risk."
But the most disturbing statement in the
Galles' report is that his failure to show
"much response" to incriminating (relevant)
questions may indicate "guilt" for in other
reports too much response is said to indicate
guilt. In short, It would seem that employees
were termed security risks equally for giv-
ing too little response or too much response
to relevant questions.
Fortunately for Gailes?and nine other
individuals who also "failed" their poly-
graph tests and were discharged?the
trial examiner ordered the company to
offer them "immediate and full rein-
statement to their former or substan-
tially equivalent positions without preju-
dice to their seniority of other rights and
privileges" and full back pay.
However, a woman in Idaho was not
as fortunate in her experience with a
polygraph examination. She was fired
from her job for refusing to submit to the
test. Since then, in addition to being un-
able to find another job, she has also
been denied unemployment insurance
benefits because the State department of
employment considers her refusal to
take the test "insubordination" and
"noncompliance" with company policy.
In appealing the ruling denying her un-
employment benefits on the basis of her
"misconduct"?refusing to submit to the
polygraph test?wrote:
When I agreed to work at the store, I was
faced with the choice of starvation or sub-
mission to the polygraph examination. I
much prefer to work instead of being sup-
ported by the government. However, I refuse
to be taken advantage of. When I began to
work, I did not know the polygraph exam-
ination included questions personal and in
many instances unrelated to employment
The test including giving the examiner an
Itemized list of my bills and expenses per
month. It also included questioning work
habits and ethics of other employeas?a prac-
tice I consider highly unethical. There were
also questions of a legal nature?have you
ever written a bad check? Do you use mari-
juana, or narcotics? Have you ever driven
While drunk?
Of course, I was recommended for employ-
ment at the conclusion of the test; but hav-
ing experience a polygraph examination, I
decided that starvation is better than sub-
mitting to personal probes of circumstances
unrelated to employment. I feel it was de-
moralizing and a definite infringement of my
rights. I believe an employee should not be
coerced into giving personal information to
an employer for the sake of being able to
work for him.
After learning what the polygraph exam-
ination involved, I would have been exceed-
ingly stupid to consent to another examina-
tion of this sort?especially under an im-
plied accusation concerning a shortage of
money in the store.
Toil determined that my unemployment
is due to "having been discharged for miscon-
duct in connection with the employment"
Misconduct is defined in Webster's Diction-
ary as "improper or illegal conduct." I really
can't understand how my refusal to pub-
licize personal information can be construed
as "improper conduct." I would think instead
that being asked to reveal this information
is "improper conduct."
I am angered that retaining a job requires
the sacrifice of principles and a willingness
to reveal personal information. It it especial-
ly disappointing that my employer should
state that I was "an honest and dependable
employee" and say that he found that I went
out of my way to do a very good job in the
store?and yet fire me.
The statement to which she referred
was a recommendation given her by her
Immediate supervisor. He wrote:
She was released for refusing to take a
polygraph examination. The examination Is a
company policy and if a person refuses to
take it then [the Company] will no longer
let them continue employment.
[The woman] refused the exam because of
personal principles and not because of dis-
honesty.
It is my personal opinion that [the wom-
an] was an honest and dependable employee.
Mr. President, in my opinion, a law-
abiding person seeking a job should not
be coerced by means of a lie detector to
reveal personal information against his
will. I am not questioning the right of
an employer to hire whomever he feels
would be the best candidate for a posi-
tion or to dismiss an employee for cause.
However, traditional employment screen-
ing procedures provide companies with
ample access' to sources of information
on individuals without sacrificing the
constitutional rights of all employees or
applicants because of the transgressions
of a few.
If an individual chooses not to respond
to reasonable questions in a traditional
employment interview and to provide
proper information to facilitate inquiries
about himself, then, of course, he should
not be hired. Business must be able to
protect itself. Yet, in this, as in other
areas, expediency must not be permitted
to negate the liberties of all Americans.
Our rights should never be measured on
a dollar-and-cents basis.
Recently I received a sampling of poly-
graph reports from the President of a
large midwestern ? company which were
intended to demonstrate how valuable
the tests are in effective employee screen-
ing programs. In describing the results
of the polygraph examinations he wrote:
In practically every, one of these cases the
man involved was, from appearances, most
acceptable, and it was only after a revelation
of his past history that we could make a
valid decision about his possibilities as an
employee.
You will notice that in all of these in-
stances our decision was made on the evi-
dence that the man himself gave. We did not
condemn anyone because the machine or the
examiner passed an opinion. The evidences
here are based upon the statements made by
the people being tested.
While these reports were sent to sup-
port the position that the polygraph was
essential in employment, I submit that
they may in fact show the opposite. If
one discounts completely the evaluation
of the examiner as to the subject's suit-
ability or honesty, or the machine itself,
the justification for its use evaporates.
Almost all of the case histories I re-
ceived contained information pertaining
to previous criminal activities. Many of
the subjects had been arrested and con-
victed of varied offenses including glue
sniffing, driving while intoxicated, sell-
ing drugs, rape, and armed robbery.
Several of the subjects had medical
problems which would have prevented
them from performing the duties of the
position for which they were applying.
Some had poor work records.
Several had taken merchandise or
money from previous employers.
A few were regular users of narcotics.
Since, in most instances such informa-
tion is readily revealed and verified by
traditional employment procedures, the
Polygraph is not essential in ferreting out
this information.
Yet, these polygraph reports also con-
tain a wealth of extraneous information
unrelated to employment such as:
He was arrested once for sniffing glue at
the age of 13 or 14 and remanded to his
mother's custody.
The subject states that he had received a
total of fifty cents in tips while working for
[a Company].
Subject has approximately $158 in fixed
monthly bills of which $93 is his car pay-
ment. His just purchased his car last week
and the first payment is due on 10/20/72.
Subject was arrested in 6/71, he loaned
his vehicle to an unlicensed drive (sic) who
was involved in a car accident, released on
bond. Charges dropped . . .
Subject stated that between the age of
12 and 15, he occasionally shoplifted maga-
zines, candy bars.
Subject has approximately $268 in fixed
monthly bills, all current. His wife is em-
ployed and has a monthly income of $450
gross.
At the age of 13, subject was kicked in the
genitals (involved in a fight) which resulted
in some swelling. Subject has never seen
a doctor for this and states no residual prob-
lem.
If this information is irrelevant, why
? collect it? Why report it? One answer
Is that irrelevant questions are required
in order to establish reaction patterns
for the relevant questions. However, I
must admit that I can see no justifica-
tion for this line of personal inquiry. It
Is scarcely compatible with the rights of
privacy guaranteed our citizens.
And finally, what uses will be made of
a polygraph report? In this computer
age, every detail acquired from such in-
vestigations about a person's life, habits,
attitudes, and beliefs can be made avail-
able in seconds. Therefore, it is more im-
portant than ever that the individual be
assured that information conveyed about
him be correct, current, and relevant to
the decisions being made about him.
I was particularly disturbed to see that
a carbon copy of one of the "confi-
dential reports I received was sent to a
private detective agency. Who else re-
ceives the information from polygraph
reports? Do polygraph companies pool
their information? If the judgment and
evaluations of the polygraph examiner
is made part of an indilvduars personnel
file, will it then find its way into credit
files and the like?
These are not idle concerns. In view
of the proliferation of the use of the poly-
graph, and other truth detection devices
such as the Psychological Stress Evalua-
tor (PSE) and "wiggle seat," we should
all be concerned about the use of ma-
chines which compel people to reveal
their innermost thoughts about their
most personal matters in order to ob-
tain employment.
The legislatures of our land have be-
gun to express themselves against the
use of such machines. To a varying de-
gree 13 States prohibit the use of poly-
graph tests in connection with applica-
tion for employment or as a condition to
continuation of employment. Of the re-
maining States, 15 required polygraph
operators to be licensed.
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December 20, 1973 CONGRESSIONAL RECORD ? SEN ATE S 23493
fool for a client, so / hired an attorney. He
obtained the Prosecutor's agreement to re-
test me, given the great disparity between
the facts and the polygraph, on the single
condition that they pick the operator to be
used and that I stipulate that the exam
could be introduced against me. They chose
a man in New York City, whom I paid a
rather substantial sum of money to fly to
Seattle and give me the second test. He did.
and, like the first polygraph operator, failed
me,
it is extremely difficult to explain to any-
one the mental conflict that goes on inside
a person's mind when he is told by a ma-
chine that he lied when he knows he was
telling the absolute truth. The conflict be-
comes even clearer when a second polygraph
man, presumably one of the best in the na-
tion, tells him the same thing. I was fortu-
nate in that the objective facts were highly
Inconsistent with the opinion of the poly-
graph operators.
You would understand that if an attorney
wished to smuggle contraband to a client in
the city Jail, a very simple and absolutely
foot-proof method exists: all he has to do is
to go to the Jail and ask to see his client to
confer, and his client is brought to a small
interview room where he can speak with his
client in absolute privacy with no bars or
other impediments separating them. Any
small item of contraband can be passed to
the client in absolute safety as the clients
are never searched by the Jail personnel on
the way back to their cell. Therefore, if an
attorney wished to smuggle a balloon filled
with heroin to a client, a simple and secure
method for so doing exists. On the other
hand, it is standard procedure to screen every
Item of clothing, food, cigarettes, etc. that
they receive for Jail inmates and so an at-
torney who gave cigarettes to a Jail matron
for a Jail inmate, knowing there to be con-
traband inside the cigarettes, would know
the chances of him being discovered and
prosecuted were extremely high.
T asked my law partner to take the ciga-
rettes to the Jail, knowing full well that he
was going to deliver them to the matron.
Therefore, if I had known there was contra-
'band in the cigarettes. I would have known
that I was going to be discovered and pros-
ecuted. Thus, you can see the absurd conflict
between the objective facts as to how the
cigarettes were delivered and what the poly-
graph operators said I knew at the time the
cigarettes left my office. They said that I
knew there was heroin in the cigarette pack.
To shorten this story somewhat, after six-
and-one-half months of waiting, my case was
brought to trial and was tried for six days
to a packed courtroom. The Prosecutor was
allowed by the Court to introduce every shred
of evidence that they could muster. I and
my attorney had researched the polygraph
and its operation and history with extreme
thoroughness during thc months interven-
ing my being charged and the trial and were
able to cross-examine the polygraph opera-
tors, one of whom you should remember is
one of this country's most highly acclaimed
operators, with such thoroughness that the
inconsistencies and absurdities in the the-
ories supporting the polygraph became crys-
tal clear to everyone. These absurdities and
inconsistencies were highlighted by our own
reuse, which consisted of the objective facts
s.orrounding the incident and an expert wit-
ness from the University of Washington De-
periment of Physiopsychology, Dr. Hans
Doerr.
Dr. Doerr is a professor in the University
of Washington School of Medicine and is di-
rector of the school's Physiopsychology Lab-
oratory. Physiopsychology, as you know, is
the medical discipline that studies the rela-
iionship between psychology and physiology.
In his research, Dr. Doerr uses sixteen ex-
tremely sophisticated polygraphs to Meas-
ure physiological changes which occur is
conjunction with psychological changes. EVill
with all of these polygraphs hooked up to
godlier and working on one individual, an(
assisted by amplifiers, filters, and computer,
to analyze results, Dr. Doerr testified tha
only a fool would say he could determine
whether or not a person was telling the truth
or not,
After hearing all the evidence, the Judge
wasted little time in convicting my co-de.
fendant, the individual who had brought the
cigarettes into my office, and acquitting me
indicating that there was not the slightest
shred of evidence against me, including
the polygraph. Since that time, the Prosecu-
tor's office has indicated to me that their
confidence in the polygraph was so shaken
by our defense in my case, that they have
decided not to take polygraphs into con-
sideration in deciding whether to file charges
or not in the future; thus, it appears that In
the future, others will not have to suffer as
I did because of the pseudoscientific hocus
pocus of the polygraph hucksters.
Another positive effect that my trial had
was to education people in this area in a
rather classic confrontation between objec-
tive facts and the polygraph, that the poly-
graph is indeed fallible and can do a great
deal of damage.
I might mention that Dr. Doerr has be-
come so interested in the use of the poly-
graph as a lie-detector, that he proposes to
call a symposium of physiopsychologists from
around the country in the near future to ad-
dress themselves to just this question.
mention this because the product of this
symposium might be of some use to you in
gaining support for your Bill.
I apologize for taking so much of your time,
but would again like to indicate my support
and offer my assistence. If I can be of help to
you in any way whatsoever, please do not
hesitate to let me know. Anything I can do
to prevent or minimize the damage and
heartache the polygraph might cause to
others, I will do. Thank you for your time.
Sincerely yours.
Room W. jontssoN.
Mr. ERVIN. Mr. President, quite apart
from the unreliability of the polygraph
are the questions of necessity in employ-
ment situations, due process rights, and
basic fair play. Industrial use of the
polygraph both for preemployment
screening and for on-going surveillance
of its work force has become more wide-
spread. A report by the Maritime Trades
Published in 1970 indicates that:
Industrial firms which use the polygraph
run the gamut of America's economy.
Many use polygraphs in an attempt to halt
the theft of such state and federally regu-
lated products as narcotics and alcohol?
hence, drug and liquor manufacturers, hos-
pitals and even doctors' offices, are frequent
clients for polygraph agencies.
Businesses such as electronic and chemical
companies, which produce expense products
and which are concerned about possible theft
of material or industrial espionage, fre-
quently employ "lie detector" firms or main-
tain their own staff of examiners,
Banks and investment firms, whose em-
ployees customarily handle large sums of
money, have been among the more active
users of polygraphs. So have mail order
houses, discount shops, clothing and shoe
stores, a leading restaurant chain, tobacco
stores and supermarkets.
Use of polygraphs on a regular basis has
been found among delivery companies and
freight movers?where pilferage has been a
common complaint for years. But the devices
are found, as Well, among copper refiners,
steel producers, rubber manufacturers, food
and oil processors and meat packers.
The American Polygraph Association
estimates that one-fourth of all major
corporations now use the polygraph with
between 200,000 and 300,000 tests admin-
istered last year in the United States
alone.
However, it remains to be shown that
the use of polygraph tests actually
"screens out potential thieves" or "keeps
workers honest." The main value of the
polygraph apparently is the psycholog-
ical pressures it brings to bear upon an
employee or applicant. Whether the ma-
chine actually works is irrelevant to
whether the subject believes it works.
That is why proponents of the polygraph
are intent on preserving its image.
What is a prospective employee to do
when confronted by a polygraph exam-
ination. If an employee refuses to submit
to the test then he is automatically sus-
pected of "hiding" something. If he sub-
mits he is faced with the burden of
proving his "honesty" to the satisfaction
of the examiner. What has happened to
our cherished presumption of innocence?
For example, in a published decision
of the NLRB in the Lone Star Co and
General Drivers, Warehousemen, and
Helpers Local Union No. 968 case?No.
23-CA-1563, November 13, 1964?the fol-
lowing polygraph report was the basis
for firing an employee.
Subject Galles has many, many gripes.
Stated that his pay was too low, that he had
to do too much work. States that he does not
:mow just hoW much he is making per hour.
States that he does not like the idea of
having to leave his COD payments in a box
to be counted by someone else the next day
because he is being shorted. Stated that
every pay day there is some taken out of his
check because of errors in COD payments.
States that the only way the company has
been good to him is that when he had an
emergency they loaned him some money.
/his person seemed very unhappy with the
.:ompany. This person has taken the test
about 5 or 6 times. He does not show much
response to the relevant questions. There
could be reasons for this: (1) he Is com-
aletely innocent and therefore is uncon-
'erned: (2) he has taken the test so many
times that it does not bother him to lie
which could be the reason; (3) he is the type
.4' person who, because of his environment,
As learned or been taught that stealing was
aot wrong and that everything that a per-
,on can get and get away with is theirs.
atter? (sic) it is possible that a combination
things, his lack of concern for the test,
ad his guiltless' feelings over stealing. Could
,e the reason for his lack of concern. Con-
icier him a security risk.
Obviously the polygraph examiner re-
,cted out of hand the possibility that
,lailes was "completely innocent: of
tealing from the company despite the
Ack of any evidence to the contrary. In
iseSSing the conclusions of the poly-
, raph report, the trial examiner said:
Of course the most striking thing about
is report is the admission that Galles
might be "completely innocent" of any
rongdoing. But if he was not innocent,
hat had he dont? The report dogs not say
and It does not even speculate on what Galles
might possibly" have done. There is no
, idence, however, that Lone Star inquired
. Truth Verification which explanation-1/1-
.)cent or guilty? seemed more probable or
at it asked what Galles had lona if the
rnpletely innocent- explanation appeared
less likely of the two. Instead, Lone Star
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- CONGRESSIONAL RECORD ?SENATE December 20, 1973
automatically when a person lies or tries
to deceive. A polygraph Is a machine
which records one's physical response
against the statements he makes. A
pneumatic tube is placed around the sub-
ject's chest, a blood pressure cuff around
his upper arm and sensors are attached
to his palm or finger tips. The recording
units track the subject's blood pressure
and pulsations, his breathing patterns,
and his galvanic skin responses on a con-
tinuous graph. The galvanic skin response
or GSR is the amount of electric resist-
ance in the skin which is affected by the
subject's sweat gland activity.
The premise behind the use of the poly-
graph is the assumption that lying leads
to conflict; conflict causes tension; this
tension can be accurately recorded and
measured by the polygraph; and the op-
erator by studying these reactions can
tell whether the subject is being decep-
? tive or truthful. However, no regular
relationship between lying and physical
responses has yet been established.
What is recorded, therefore, is not the
subject's veracity, but his physiological
responses to the examiner's questions.
The graphs recorded by the "lie de-
tector" are worthless unless "interpreted"
by the examiner.
In interpreting the results, the exam-
iner makes personal judgment as to what
may have produced a tension response.
A tension response can be induced by
fear, anxiety, love, hate, hostility, frus-
tration, conflict, or physical discomfort
as well as by guilt. A negative reaction
can be caused by resentment at the im-
pertinent questions being asked, but we
must rely on the training of the examiner
to decide whether the response indicates
a lie. Furthermore, differences in hered-
ity, environment and background will in-
fluence an individual's mental, emotional
and motor behavior, further obscuring
the reason for a tension reaction, or lack
of reaction, during a polygraph examina-
tion.
Thus, the interpretation process is not
the mechanical function which some
would have us believe. The examiner in-
terprets the recorded tension reactions
based upon his subjective judgment con-
cerning the subject's motivation, honesty,
and reliability. Since another examiner
can and frequently does reach an oppo-
site conclusion after reviewing the same
graph, this form of truth verification
can hardly be called an exact science. In
fact, I have likened it to 20th century
witchcraft and I have seen no documen-
tation to alter my view.
There are too many variables involved
in polygraphy. There are too many sub-
jective judgments required in polygraphy.
Bear in mind that it is not the machine
or some demonstrated scientific fact
which determines that the subject is be-
ing deceptive. It is solely the examiner's
interpretation of the readings. As such,
the polygraph examination is quite dif-
ferent from the types of comparisons in-
volved in fingerprint identifications, bal-
listic tests, or even blood-alcohol tests.
The late J. Edgar Hoover rejected the
idea that the polygraph was a "lie detec-
tor" and declared that?
Ninety percent of the polygraph's useful-
ness depends on the careful evaluation of
the results by experienced examiners.
And even then certain categories can
fool the most experienced operators: the
brazen liar or hardened criminal; the
dull-witted or "supercool"; or a person
with no cultural belief about right or
wrong. At the same time, an innocent,
honest, introspective, serfitive person
might register "deceptive" reactions be-
cause he is nervous or hostile to the test.
Nevertheless, proponents of the poly-
graph have made extravagant claims as
to its value as a test of deception in rou-
tine uses. Attempts at proving the relia-
bility of the polygraph as a lie detector
have not sustained the virtual infallibil-
ity claims by its proponents.
First of all, independent tests to verify
polygraph determinations are susceptible
to the same criticism as the polygraph
test itself. Such verification generally
consists of having a group of polygraph
examiners independently review selected
cases to determine if the examining oper-
ator was correct in his judgment.
Whether running the actual polygraph
test or reviewing test results, each opera-
tor brings with him his own set of values,
interpretation and methods of arriving
at his conclusions. Therefore, any such
study more accurately measures the
extent of agreement or consistency
among examiners and not whether the
judgments are correct. Unfortunately it
is possible to be both consistent and
wrong.
Despite this criticism, the accuracy
rates established during independent ver-
ification studies do not sustain the use
of the polygraph as a lie detector. In 1965
the Department of Defense established a
joint services group on a coordinated
R. & D. program of lie detection research
to study the reliability of the poly-
graph chart as the sole basis for judging
deception. Their preliminary findings re-
leased on August 28, 1968, indicated a
"reliability" rate between 30 and 93 per-
cent depending upon the type of poly-
graph examination reviewed. It is inter-
esting to note that during this same pe-
riod of time the number of polygraph ex-
aminations given by the Defense Depart-
ment in criminal cases dropped from
5,626 in 1965 to 1,445 in 1967.
However, even a 99-percent accuracy
figure is of little comfort to an individ-
ual falsely accused as a result of "failing"
a polygraph test. I received a letter from
an attorney in Seattle who described the
unreliability of polygraphs in terms of his
own personal experience.
I ask unanimous consent to have his
letter printed at this point in the RECORD.
There being no objection, the letter
was ordered to be printed in the RECORD,
as follows:
SEATTLE, WASH.,
January 29, 1973.
Hon. SAM J. ERVIN,
U.S. Senate Old Senate Office Building,
Washington, D.C.
DEAR SENATOR ERVIN: I happened to read
in the January 13 issue of Business Week
an article regarding pre-employment screen-
ing with polygraphs, and I noted that you
are sponsoring a Bill to severely limit or pro-
hibit the use of that device for screening Job
applicants. I would first like to applaud your
efforts and indicate my strong support for
the Bill, and secondly, relate to you an ex-
perience I recently had which will perhaps
explain my attitude.
First, I am an attorney practicing here in
Seattle, Washington. A large part of my pra.c-
tics consists of representing people accused
of crimes. In April of 1972, I was represent-
ing a young woman incarcerated in the City
Jail and charged with a felony. On April 15,
her husband came into my office and asked
if I might be going over to see his wife that
afternoon. I indicated I hoped to, and he
asked me if I would drop off some cigarettes
for his wife. He tossed two sealed packages
of cigarettes on my desk when I indicated
I would do so. We talked for awhile about his
wife's case and he opened one of the packs
of cigarettes and smoked several cigarettes
from it. Then he left.
After a bit, my partner came down to the
office (it was Saturday) and asked what I
was working on. We chatted briefly and he
mentioned he was going over to the City
Jail later that afternoon. I asked him to
cheek with me befori he went as I might
be going over also and we could walk over
together.
During the course of the afternoon, I
smoked two or three cigarettes from the open
pack that my client's husband had brought
in. The other pack remained on my desk,
sealed. Later, my partner came back into my
office and asked if I was ready to go to the
Jail. I told him I still had work to do and
asked if he would drop the sealed pack of
cigarettes off at the Jail for my client. He
said he would leave them with the matron
for the woman, and I said that would be fine.
He left them with the matron, and during
a routine check of the package of cigarettes,
the matron discovered there was a small bal-
loon of heroin inside.
When my partner and I learned of this, we
cooperated with the police detectives in ev-
ery way we could, explaining exactly what
had happened, and indicating the name and
identity of the person who brought the ciga-
rettes into our office. Then the Prosecuting
Attorney told us he would have to ask us to
take a lie-detector test and would have to
ask us to stipulate that it could be used
against us if we failed it. We agreed, re-
questing only that he stipulate that if we
passed the polygraph, there would be no
charges filed. This he said he couldn't do.
My partner and I agreed to their conditions
and he took the test that evening. I was
scheduled to take it the next day.
While my law partner was taking the test,
I became somewhat angry tha they had re-
quired him to go through this, especially
considering that he had practiced in this
community for better than 20 years and his
reputation for integrity and honesty was un-
impeached. The next day I told the Prosecu-
tor that I would be more than happy to take
their polygraph test and would stipulate that
it be used against me if I failed it, but that
they were going to have to stipulate that if
I passed it there would be no charges filed.
Again, they' said they could not do that. I
indicated to them that I knew they could do
that because they had done that before with
clients of mine, some of whom had long crim-
inal records, and I thought that it was only
fair that we be treated at least as well as
they were willing to treat criminals with long
records. They told me they couldn't do it,
and I refused to take their test.
Later that day they offered me a non-
stipulated test, pointing out that if I failed
it, it couldn't hurt me or be used against
me, and if I passed it, they made no promises
that they wouldn't still file charges. I re-
fused the non-stipulated test, and again
told them the only kind of polygraph I would
take was one where it was stipulated that if
I failed it, it could be used against me and
if I passed it, there would be no charges
filed. Finally they agreed. I took the test, and
the polygraph operator failed me. The fol-
lowing day I was charged with attempting
to smuggle. heroin into the City Jail.
It was at that point that I finally realized
that the man who represents himself has a
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Approved For Release 2005/03/24: CIA-RDP81-00818R000100060021-5
December 20, 1973 CONGRESSIONAL RECORD ? SE:\ ATE
1 By Mr. NELSON:
S. 2845. A bill to amend the Federal F
Drog, and Cosmetic Act in order to pro
co umers against food additives wh
\
mut nic or teratogenic effects on
anima. . Referred to the Commit
and Pu c Welfare.
ByHART (for httnsel
so Mr. CHILES, and
S. 2846. A . 1 to protect
state comme from unr
environmental .. - th
quate supply of ? lo
cads and substance
safe drinking wa
treatment. Ref
Commerce, by nim
By Mx.
S. 2847. A
Olivia York.
the Judie
ave
or
a Labor
Ill for
formed to
. MAGNI,-
. EASTLAND) :
e flow of inter-
sable damage to
assuring an ade-
e and other checmi-
oh are necessary for
and for waste water
? the Committee on
? consent.
?
relief of Barbara
?e Committee on
By
. HATFIELD (
MMES. Mr. DOHEN
SEN. Mr. Norm*, Mr.
ALLEN, Mr. FANNEN,
Mr. Hurn,Err, Mi. Cnn,
RANDOLPH) :
82. Res. 183. Original joint resol
aim April 30, 1974, as a National
umiliatiori, Fasting, and Prayer. Cons
and passed.
himself, Mr.
Mr. am-
NSTON, Mr.
SIENNA
and Mr.
on to
y for
ed
STATEMENTS ON INTRODUCED
BILLS AND JOINT RESOLUTIONS
By Mr. ERVIN:
S. 2836. A bill to protect the constitu-
tional rights of citizens of the United
States and to prevent unwarranted in-
vasion of their privacy by prohibiting the
use of the polygraph for certain pur-
poses. Referred to the Committee on
the Judiciary.
Mr. ERVIN. Mr. President, on June
24, 1971, I introduced S. 2156, a bill to
protect the American people against the
Invasion of their privacy through the
use of the polygraph. Today I reintro-
duce this measure.
The technological era is not one of un-
mixed blessings. We all can take great
pride in our American ingenuity which
has made the United States the world's
greatest industrial Nation. However,
only recently have we awakened to the
dangers of permitting expediency to dic-
tate the course of our economic and
social progress. Our great industrial and
technological revolution has been not
only at the expense of the quality of the
air we breathe and water and food we
consume, but at the expense of the
uniqueness and dignity of all of us as in-
dividuals.
I refer specifically to the trend to use
this new technology to promote contro-
versial behavioral science theories which
are supposed to help us obtain and meas-
ure truth. One such theory which has
found currency in the employment field
Is that if one can only acquire sufficient
Information in advance on an individual,
then one can predict and control be-
havior, so "truth verification" devices
have been developed. The most widely
used device is the polygraph or so-called
lie detector.
Increasingly, traditional employment
practices are being abandoned in favor
of polygraph examinations. This instru-
ment is being used to determine the fit-
ness of individuals for employment, for
promotion, for dealing with security in-
ormation, or to determine ethical mt..
conduct or violations of personnel ref
ulations. And they are being used devil., -
the fact that there is no clear scientife
proof that they prove anything or preclk
anything for employment purposes.
During a polygraph examination it
common practice for the operator ts
probe into many personal details of al
individual's life, unrelated to his employ
meat. In fact, personal, controversial, ce
stimulating questions are deliberatel,
asked in order to form a basis of "norm
for measuring reactions to "relevant'
questions. Consequently, polygraph re
ports contain such personal information
as how the subject thinks; how he be -
haves in his personal life; what he reads
what his conduct and attitudes are in
sexual matters; how he relates to his
parents and family; and what he dream
about.
As long as these machines are per-
mitted in employment situations, thav
will be a perpetual danger to the free-
dom which is most cherished by us all?
our right to privacy.
The Constitution itself creates a right
to privacy which is designed to assure
that the minds and hearts of Americans,
remain free. The bulwark of this con-
stitutional principle is the first amend-
ment. The first amendment was designed
to protect the sanctity of the individuart
private thoughts and beliefs. It protects-
the individual's right to free exercise of
conscience; his right to assemble to peti-
tion the Government for redress of
grievances; his right to associate peace-
ably with others of like mind in pursuit
of a common goal; his right to sneak
freely what he believes; and his right to
try to persuade others of the worth of
his ideas.
The fourth amendment guarantees
"the right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and sm.
mires." In addition to the privacy of
one's home and personal effects, the pri-
vacy of his person--or bodily integrity?
and even his private telephone conver-
sations are protected by the fourth
amendment. The fifth amendment guar-
antees that an individual shall not be
forced to divulge private information
which might incriminate him. It also
protects individual privacy by prevent-
ing unwarranted governmental interfer-
ence with the individual's person, per-
sonality, and property without due proc-
ess of law.
The ninth amendment's reservation
that "the enumeration in the Constitu-
tion of certain rights, shall not be con-
strued to deny or disparage others re-
tained by the people" clearly shows that
the Founding Fathers contemplated that
certain basic individual rights not spe-
cifically mentioned in the Constitution--
such as privacy?should nevertheless be
safe from governmental interference.
The Supreme Court has held many as-
pects of individual privacy to be con-
stitutionally protected. In recognizing
that "specific guarantees in the Bill of
Rights have perumbras formed by
emanations from those guarantees that
help give them life and substance"
(Griswold v. Connecticut, 381 U.S. 479,
S 23491
484) the Court has found that those
penumbras protect the right to give and
receive information, the right to family
life and child-rearing according to one's
conscience, the right to marriage, the
right to 'procreation, the right to con-
traception, and the right to abortion.
All Americans can testify to the power
of those protections of the individual's
rights. The Constitution assures these
rights to all citizens whether their exer-
cise is pleasing to Government or not.
And by the same token, it assures the
Individual the converse of these lights:
the right not to speak what he believes,
whether his silence is pleasing to Gov-
ernment or not; and his right not to act,
not to associate, not to assemble,
whether his inaction is pleasing to Gov-
ernment or not.
During the study or privacy which the
Constitutional Rights Subcommittee has
been conducting, we found that the num-
ber and kinds of privacy invasions are
limited only' by the ingenuity of human
beings and by their technical capacity
for committing them. It is sometimes
hard to find rhyme or reason to some ac-
tions. This is why the subject of privacy
is a very difficult field in which to draft
legislation to protect individual rights.
If I were forced to find one comman
denominator for all of these techniques
and practices, I would say it is the effect
they have on the individual's free exer-
cise of his mind and his freedom to seek
his own destiny.
Probably no instrument in modern
time so lends Itself to threats to constitu-
tional guarantees of individual freedom
as the polygraph or so-called lie detector
The threat of its use or the intimidation
inherent in its use restricts free expres-
sion and communication of ideas; in-
trudes on an individual's subconscious
thought; makes him fear ? to speak his
thoughts freely; or compels him to speak
against his will.
To my mind the entire purpose of
these machines is to invade a man's
mind and find what lurks in the inner-
most part of his mental consciousness
for reasons which have nothing to do
with his ability to perform a job. If the
sight of privacy means anything at all,
and if it is a right to be cherished in our
?;eciety, it means that people should be
entitled to have thoughts, hopes, desires,
and dreams that are beyond the reach of
a bureaucrat, an employer, or an elec-
tronic technician. This is something
which enthusiasts for these machines do
eot seem to understand. They do not
understand and they do not appreciate
Sow important privacy is to each Amer-
ican and as long as that lesson is not
enderstood, we all will find our right to
erivacy constricted, if not abrogated
I propose this legislation to ban the
Lin of the polygraph for employment
Purposes in the hopes that Congress will
pause for a moment, step back, and take
s, long look at the issues involved in the
unrestrained use of the polygraph. Leg-
elation is necessary to bring some order
nd control to the practice.
Just what is a polygraph? Contrary to
,epular belief, it is not a "lie detector."
liens do not ring and lights do not flash
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STAT
S I s
UNCLASSIFIE*Pmvenoiartlaft
ONLY 2005/03/24: CIA-R101-0ONFOBeral0A060021-5 E] SECRET
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
S. 1688
FROM:
OLC
7D35
EXTENSION
NO,
DATE
8 March 1974
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
INITIALS
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
1.
DDM&S
D/Pers
Senator
tecting
employees,
favorably
Senate
4 March
without
7 March.
from
which
and the
missing
Committee
which
The bill
referred
Office
Committee.
with
exemption
granted
Ervin's bill on pro-
the privacy of Federal
S. 1688, was
reported out by the
Judiciary Committee on
and passed the Senate
dissenting vote on
Attached is an excerpt
the Congressional Record
?
D/S
OMS
3-
IG
OGC
4.
reflects floor statements
text of the bill. The
pages set forth the
report, a copy of
is attached.
should as in the past be
to the House Post
and Civil Service
Our efforts will be
that staff to seek a total
for the Agency, as
the FBI.
?
'
Copy of entire
excerpt and this
. II i ip o
OS
3/13/74
?
10.
Assistant L islative Counse
11.
12.
13.
14.
15.
FORM 61 0 USE PREVIOUS
3-62 EDITIONS
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