ADDRESS BY CHAIRMAN ROBERT E. HAMPTON, U.S. CIVIL SERVICE COMMISSION,

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00337R000500050028-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 20, 2016
• Document Release Date: February 7, 2006
• Sequence Number: 28
• Publication Date: May 25, 1970
• Content Type: SPEECH

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FOR RELEASE:
ON DELIVERY
EXPECTED AT 12:00 NOON
MAY 25, 1970
ADDRESS CBAR ASSOCIATION, TOM LARK AWARD LUNCHEON, ~ AT THE COMMISSION,
THE FEDERAL LAWYERS
'CLUB IN WASHINGTON, D.C., ON MONDAY, MAY 25, 1970.
THE FEDERAL ATTORNEY -- AN AID. TO MANAGEMENT
When I was asked if I would address the Bar Association for the Tom Clark
Award Luncheon, my initial reaction was to decline. First, I am not a lawyer,
but equally important, as most Government lawyers are not in the competitive
service, the Civil Service Commission has less to do with their employment than
with most Federal employees. But on further thought I recognized how important
lawyers are to managers in the executive branch in the area of personnel manage-
ment; and because of that recognition I am here to share with you some thoughts
I feel are particularly pertinent today.
When I speak of the lawyers' importance to management I do not refer to
the fact -- long established -- that lawyers are useful in aiding management in
the endless variety of Government missions. The Federal lawyer serves every
aspect of Government from building roads (for which he obtains rights of way) to
shipbuilding and aerospace missions (where his contracting-out ability is with-
out peer). I doubt that many persons take into account that the work of a
Government lawyer is so closely related to most executive tasks. He prepares the
statutes that authorize the programs we administer; his carefully drafted
regulations bring those programs into workable reality; and his advocating in
both administrative and judicial tribunals frequently saves us managers from
ourselves.
Today, however, I want to stress the importance of the Federal lawyer's
aid to proper personnel management. Personnel management deals with PE0'ILE --
their hiring; their assignment, training, and motivation; and their removal or
retirement. In many aspects of personnel management -- and I have mentioned but
a very few -- the lawyer's assistance is needed. Lawyers are experts in dealing
with PEOPLE, and indeed, in a fundamental sense,. that is what law is all about.
It is a "people to people" profession.
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From the contacts I have had with Government lawyers, and they are , .
fregr?en., I am convincer l. t' more than 9,000 attorneys in .he executi .
are both learned sir. Merely devoted to their work. - in many of
t;. :4 ae;::s of personnel management with which a Government executive deals,
kas need for sound and prompt legal advice is daily becoming more-important.
This is particularly so today when dissent is routine and personal rights have.
a value-standing that is at its highest point in many years.
The need.for professional legal advice is evident in many areas of
personnel management such as in the new labor-management relations. program'
within the executive branch -- with its various decisional authorities such
as the Federal Service Impasses Panel-and. the Assistant Secretary -of.Labor for
Labor-Management Relations. Lawyers are.already very much on the scene in this
new program writing regulations and submitting cases for decision.' But in one
particular personnel area the assistance of the Government lawyer is particularly
useful to management. I refer to adverse actions and appeals.
Critics of Government management have frequently voiced the-opinion
that the rules are so complex that the inefficient and unsuitablg employee
.cannot be removed or appropriately disciplined. First, it is not true that.
discipline cannot occur. Last year some 12,000 employees were removed,
suspended, or otherwise'discip1ined. 'More important, however, the rules are
not that complicated, and with the professional aid of his staff attorneys,
any manager can promptly effect whatever disciplinary action is warranted.
The basic statutes and regulations in the disciplinary area -- all
drafted with the aid of lawyers for the purpose of affording administrative
due process -- are really common-sense expressions of fair play. employee
must receive a notice of proposed action stating all the reasons for that
action, specifically and in detail; he has a double right of answer, both in'
writing and orally; and he is entitled to a decision expressly indicating the
reasons relied upon to support the action to be taken. If a valid cause exists,
the legal talent available in Government today can show the personnel manager
the proper way to effect the action needed. We as managers earnestly want due
process in the area of employee discipline and know it can be secured best with
the professional assistance of our lawyers.
In the current climate of protest and dissent, an executive would be
foolhardy to fail to avail himself of his lawyer's counsel. The problems
involving people and their relationships and their rights and obligations are
rapidly becoming the most sensitive and talked-about problems of our time.
And the3 million employees who work in the Federal Government have as much
need for legal guidance as the rest of the Nation's population, if not more.
The public expects us to handle employee problems fairly and judiciously in
the Federal service. Therefore, I say that Federal managers need, more than
ever before, the professional interpretation and application of law and court
decisions that the Federal lawyer is b st Ahl.e_ to provide.
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3.
To illustrate my po'.nt let me sketch a case situation for you that
is not entirely hypothetical. A Federal employee wears a peace or anti-war
b'.itvz,n or insignia on the job. In his immediate office his co-workers are
sympathetic or do not object, but there are others in adjacent offices
w}:are the employee's duties require him to go who are extremely disturbed
b, the button-wearing. In fact their disturbance goes beyond proper objection
r;, their part and into what may only be termed misconduct. The manager is
truly the man in the middle. If he orders the employee to take off the
button -- the wearing of which is certainly deserving of some constitutional
protection -- he is faced with the possibility that others may sympathize
with the button-wearer and begin their own button-wearing. If he does nothing
about the button-wearer he faces a work-site disruption that will interfere
with the efficient performance of his agency's work.
Indeed, the button protestors claim First Amendment rights in registering
their objection to the wearing. There are constitutional balances here that
need a lawyer's attention. Since I have already told you that this is a
lawyer's problem, I, a non-Lawyer, will not attempt to answer it for you. All
I want to make clear is that the situation today is ripe for challenges of
this type. Challenges that may well end up in court so that the manager's
action must, from the outset, recognize the legal facets involved, and his
decision must be legally defensible.
I feel that you as Government attorneys, regardless of your particular
legal area of specialization, would do well to keep up with the law of personnel
administration so that when a manager needs your professional advice you are
ready to give it. Perhaps I can motivate your interest in this legal field
by sketching for you some of the Commission's legal philosophy which has
developed over the years, and some of the mechanics of operating a merit system
and judging the fitness of applicants and employees.
The matter of employee fitness, and particularly the legal aspects of it,
have been much in the public eye in recent months and weeks. In some quarters
it has become fashionable to reincarnate the specter of "Big Brother" peering
over every man's shoulder and keeping voluminous dossiers, or worse, highly
efficient computerized data banks, filled with assorted bits of gossip with
which to disqualify the innocent. There has been talk of "puritanical"
standards of morality, of keyhole peeping, and of regularized invasions of
privacy. Some have tried to create the impression that any participation in a
campus demonstration, no matter how peaceful, provides an automatic basis for
disqualification for Government employment. Through it all there are dire
pronouncements about new, drastic, arbitrary suitability standards being adopted
by the Commission. The innuendo is not new. It certainly is not true.
The simple truth is that the Commission has no new standards of fitness
for Federal employment. Our present--suit ii-ity d-isqualifications have been
in effect for years. In essence--they are designed to fulfiTl two-fundamental
but interrelated aims: (1) To maintain the a##l.m.cncy v# 1:1,e o..w.rno, and (2)
to maintain -public confidence in the integrity of its civil servants.
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These aims are deeply rooted in our Nation's history. Gecrge Washington
en.,)'11,._,`j7,ed honesty and efficiency as paramount considerations in selecting
appointees. Later, the glaring scandals and inefficiencies of the spoils
system during the mid-1800's underscored the imperative need to restore
public confidence in the integrity of the Government. This was a major
influence in the passage of the Civil Service Act of 1883 with its emphasis
on capacity and fitness.
As the civil service system grew in size and stature, the principle of
removals only for such cause as will promote the efficiency of the service"
became firmly established--in the Lloyd-IaFollette Act of 1912, and again in
the Veterans' Preference Act of 1944.
Efficiency . . . public confidence . . . integrity . . . these are the un-
changing foundations of our time-tested standards. They have served us well,
and continue to do so as we apply them to the problems presented by today's
social climate. In w hat sense are the problems new? They are new not because
human nature has changed significantly, but because the social climate in
which we function has changed and will continue to change. Public attitudes
today are more tolerant of some forms of human behavior.
A growing body of court decisions has interpreted the constitutional rights
of all citizens more broadly than ever before. Public and congressional con-
cern is more and more on the side of safeguarding the interests of the indivi-
dual in any action at the hands of the Government. Investigative processes
are increasingly and properly subjected to critical attention. Decisions that
may have been taken for granted a decade ago must now not only bear closer
administrative scrutiny but must stand up in a judicial review after attack by
alert and informed private attorneys.
All this is right and proper. Managers must not operate in a vacuum. We
know that a prime requisite of Government is to be responsive to the needs and
interests of its citizens. And we must constantly appraise what we do, why
we do it, and how it is done. Such an appraisal obviously involves as much
consideration of the law involved as the policies needed.
Of particular interest today is the legal position of the executive branch
with respect to a person's involvement in public protest demonstrations. The
First Amendment implications of this matter are obvious even to the layman.
With the help of our lawyers the Commission has spelled out our recognition
that employees, like all other citizens, are protected in their constitutional
right to express their views, to assemble, and to petition for change. In
some narrow and relatively infrequent situations we believe the employee of the
Government must refrain from attacking superiors with whom he has a close
working relationship and the programs which he is required to administer.
To the best of my knowledge no serious objection has been raised by anyone to
those narrow restrictions.
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5.
The-same rules apply to prospective appointees. If the protest is
constitutionally permissible, the protest action is not disqualifying for
appointment in the GovernmmenL. If the protest action, however, extends beyond
.the law so that the legal rights of others are invaded by violence or serious
disorder, the action may be disqualifying. I say may because we recognize no
automatic disqualification. In every such case there are several factors that
are always considered. The age of the applicant when the event occurred; the
surrounding conditions and social climate; the time that has elapsed since the
event; and, most importantly, whether there is evidence of what we might call
rehabilitation, Each case is judged on its own set of facts with full attention
to the legal aspects involved.
Please do not interpret my last remark as an assurance that every
Commission suitability decision is guaranteed against judicial reversal.
While I admire and respect the legal professionals on our staff I, like every
manager, recognize that no attorney can guarantee that his professional opinion
will find agreement within the judiciary.
The Commission does not consider itself to be the guardian of the public's
morals, and is not "puritanical" in its attitudes on moral fitness. Our main
concern in deciding cases involving alleged immoral conduct is to determine
whether or not whatever conduct is established is such as to render the .
applicant, in the minds of reasonable people, unfit for Federal employment.
The Commission looks at each of these cases in the light of today's
public attitudes on morality, not those of the distant past. We consider the
extent to which the individual's conduct indicates a gross or flagrant abuse
of generally accepted standards of moral conduct and would be truly offensive
to the sensibilities of the average person; the extent to which the individual's
conduct may bring serious discredit to the service and would impair its
efficiency; and whether the immorality represents a few isolated occurrences com-
pared to a pattern of flagrant abuses of generally acceptable moral standards.
I would be less than candid if I did not at this point admit that recent
decisions by the courts have caused us to reappraise our application of the
regulation concerning immoral conduct. And in doing so we act with the help
of our lawyers and with the firm belief that their professional guidance will
lead us to an application of our standard that will concurrently recognize the
employee's right of privacy and the Government's obligation to the public it
serves to exclude the truly unfit from Federal employment.
In this sensitive area of judging moral conduct, we are at present some-
what torn by differing judicial viewpoints. Some courts have held it essential
that a positive nexus be shown between the established immoral conduct and the
employee's performance of his particular job tasks. On the other hand we have
a most respectable decision that a job or task-related nexus is unnecessary;
that if the misconduct will bring the employing agency into public disrepute so
that there is a real likelihood that there will be interference with the
accomplishment of its mission, then the statutory requirement of the promotion
of the efficiency of the service is met and the separation of the employee is
proper. Obviously, here is a fertile field in which Government lawyers can aid
xsanagement.
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6.
Recent newspaper reports on the so-called loyalty oath decisions have
created an impression among a significant part of the public that loyalty
standards for Government ,employees have been revoked, c_nd that our doors are
open to avowed Communists and persons actively seeking the overthrow of our
constitutional Government by -forces or violence. I want to assure anyone con-
cerned that the suitability factor of loyalty to our C:ove,:nment is not extinct.
No single employee suitability element causes more concern among our citizens
than the loyalty element. The idea that Federal employees may not be required
to be loyal to the Government they serve truly shocks the public. Because of
the high public interest about this element, managers have a special need to
obtain the best legal advice available whenever a personnel action in any way
is affected by the issue of loyalty.
Closely related to the loyalty element is the matter of the so-called
Government "blacklist.:" The erroneous concept exists that the Commission and
other executive agencies maintain a blacklist which names individuals
rE.ted unfit for appointment on the basis of unevaluated items of information
clipped from newspapers or drawn from other sources. We not only do not have
such a list; we have never had one and never intend to have one. Like any
organization that is efficiently organized, our Bureau of Personnel Investi-
gations maintains security files. It has done so since World War II. There
is information in those files from a variety of sources. Some of that infor-
mation is "raw" or unevaluated, some is fully evaluated, but none of it is
used by itself to disqualify anyone._iFiles of a similL.r nature are frequently
used by business concerns to enable them to make adequate inquiries to deter-
mine a credit rating.
All the files do is give us leads which may result in investigations.
If an investigation raises a reasonable doubt as to an applicant's suitability,
he is informed of the evidence against 14m and given an opportunity to refute
or explain it. He may be-assisted by his own counsel in that refutation or
explanation. Only after his side of the matter is evaluated, together with
the rest of the case, is a decision made. I feel our practices are reasonable
and fair and supply the due process to which our applicants are entitled.
Although we have lost cases on the merits in the courts, no court has yet
found the procedures I have just described to be lacking in due process.
Returning to my opening thought, I want to emphasize that there are many
situations and processes in personnel management in which the Federal manager
(as the saying goes) "needs a good lawyer." Every Federal agency has good
lawyers -- some of the very best in the country -- but it is my impression
that they are not being used to advise on personnel management matters to the
extent they should be. Perhaps that is a weakness on the part of management
and, if so, as professionals you should remind them of your availability to aid
them. Obviously your first obligation is to be expert in your agency's parti-
cular field, but I urge that you devote some of your time to keeping abreast of
personnel law, particularly in the areas in which the conetitutiurn.t -4ehts of
employees are involved, so that tto managers can call and rely upon your leg...
advice.
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In my position I have seen too many cases in which attention to
applicable procedures and employee rights has been neglected because of
a lack of true professional application of legal requirements and
obligations. Almost every aspect of Federal personnel administration is
governed by statute, case law, Executive orders, and regulations. A failure
to follow these requirements is not only unfair to the employee concerned, it
is offensive to proper personnel management principles. You as lawyers can
go far in preventing such failures.
There is another side of the coin about which my associates in admini-
strative positions are deeply concerned. Administrators are generally quite
alert to the strictures and constraints placed on their actions by law and'
regulation. They try to live by the rules but feel that at times some lawyers
who serve them fail to recognize that there is a need for balance. Within
the executive branch we deal with a tremendous work force and a complex variety
of problems. This means that the overall management of that work force is,
in itself, a major governmental mission. The lawyer who undertakes to advise
a manager or administrator should make a proper effort to help him and should
not over-interpret the law and regulations so as to penalize the legitimate
and effective accomplishment of the management mission.
I hope you will consider the aid that Government lawyers can give in
the area of personnel management a challenge worth taking up. All of us --
Government managers and Government lawyers and the employees concerned -- will
profit from your assistance.
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