PROTECTING PRIVACY AND THE RIGHTS OF FEDERAL EMPLOYEES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100040015-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 16, 2016
• Document Release Date: March 1, 2005
• Sequence Number: 15
• Publication Date: May 19, 1970
• Content Type: OPEN

*7352 A p p roved For RittmiCritnrgiMAL Qusaiwro-ontutow 100040015-4 May P9, / 9 M
Forstyn4A Saga," and the many excellent
programs 1"roduced by local stations.
Public Broadcasting has turned the corner
and the time has come for it to receive the
wholehearted support it has earned and so
richly deserves.
The public interest will be served by the
e actment of this legislation.
C-/
PROTECTING PRIVACY AND THE
RIGHTS OF FEDERAL EMPLOYEES
, The Senate proceeded to consider the
bill (S. 782) to protect the civilian em-
ployees of the executive branch of the
U.S. Government in the enjoyment of
their constitutional rights and to pre-
vent unwarranted governmental inva-
sions of their privacy which had been
reported from the Committee on the Ju-
diciary with amendments on page 2, line
16, after the word "origin", insert "or
citizenship"; in the same line, after the
word "employee", insert "or person or
of his forebears,"; on page 8, after the
word "requests:" insert "Provided, how-
ever, That a civilian employee of the
United States serving in the Central In-
telligence Agency or the National Secu-
rity Agency may be accompanied only
by a person of his choice who serves in
the agency in which the employee serves,
or by counsel who has been approved by
the agency for access to the information
Involved."; on page 18, line 19, after the
word "Agency", strike out "or of the
Federal Bureau of Investigation"; on
Page 19, line 4, after the word "desig-
nee", strike out "or the Director of the
Federal Bureau of Investigation or his
designee"; in line 9, after "SEc. 7." in-
sert "No civilian employee of the United
States serving in the Central Intelli-
gence Agency or the National Security
Agency, and no individual or organiza-
tion acting in behalf of such employee,
shall be permitted to invoke the provi-
sions of sections 4 and 5 without first
submitting a written complaint t,o the
agency concerned about the threatened
or actual violation of this Act and af-
fording such agency one hundred and
twenty days from the date Of such com-
plaint to prevent the threatened viola-
tion or to redress the actual violation:
Provided, however, That nothing in this
Act shall be construed to affect any exist-
ing authority of the Director of Central
Intelligence under section 403(c), of title
50, United States Code, and any author-
ities available to the National Security
Agency under section 833 of title 50,
United States Code, to terminate the
employment of any employee."
After line 23, insert a new section, 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 executive order. The personal cer-
tification by the Director of the agency that
disclosure of any information is inconsistent
with the provision of any statute or execu-
tive order shall be conclusive and no such in-
formation shall be admissable in evidence in
any interrogation under section 1(k) or in
any civil actin under section 4 or in any pro-
ceeding or civil action under section 5.
On page 20, after line 9, insert a new
section, as follows:
SEC. 9. This Act shall not be applicable to
the Federal Bureau of Investigation.
In line 12, change the section number
from "7" to "10"; and on page 21, line 3,
change the section number from "8" to
"11"; so as to make the bill read:
S782
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 offi-
cer of any, executive department or any exec-
utive agency of the United States Govern-
ment, 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 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 "ra-
tional origin of any of his forebears: Pro-
vided, however, That nothing contained in
this subsection shall be construed to prohibit
inquiry concerning the citizenship of any
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 necessary
or advisable to determine suitability for as-
signment 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 Ultimate, 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 as-
semblage, 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 author-
ity, or by any outside parties or organizations
to advise, instruct, or indoctrinate any civil-
ian employee of the United States serving
in the department or agency in respect to any
matter or subject other than the perform-
ance of official duties to which he is or may
be assigned in the department or agency, or
the development of skills, knowledge, or
abilities which qualify him for the perform-
ance of such duties: Provided, however, That
nothing contained In this subsection shall be
construed to prohibit taking notice of the
participation of a civilian employee in the
activities of any professional group or asso-
ciation.
(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 activi-
ties or undertakings are related to the per-
formance of official duties to which he is or
may be assigned in the department or agency,
or to the development of skills, knowledge,
or abilities which qualify him for the per-
formance of such duties.
(d) To require or request, or to attempt to
require or request, any civilian employee of
the United States serving hi 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 em-
ployment as a civilian employee in the execu-
tive branch of the United States Government,
to submit to any interrogation or examina-
tion 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 practices, or concerning his attitude or
conduct with respect to sexual matters:
Provided, however, That nothing contained
in this subsection shall be construed to pre-
vent a physician from eliciting such informa-
tion or authorizing such tests in the diagnosis
or treatment of any civilian employee or ap-
plicant where such physician deems such in-
formation necessary to enable him to deter-
mine whether or not such individual is suf-
fering from mental illness: Provided further,
however, That this determination shall be
made in individual cases and not pursuant to
general practice or regulation governing the
-examination of employees or applicants ac-
cording to grade, agency, or duties: Pro-
vided, further, however, That nothing con-
tained in this subsection shall be construed
to prohibit an officer of the department or
agency from advising any civilian employee
or applicant of a specific charge of sexual
misconduct made against that person, and
affording him an opportunity to refute the
charge.
(f) To require or request, or attempt to
require or request, any civilian employee of
the united States serving in the department
or agency, or any person applying for em-
ployment as a civilian employee in the exec-
utive branch of the United States Govern-
ment, to take any polygraph test designed
to elicit from him information concerning
his personal relationship with any person
connected with him by blood or marriage, or
or concerning his religious beliefs or prac-
tices, or concerning 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 groups of persons to
public office in the Government of the United
States or of any State, district, Common-
wealth, territory, or possession of the United
States, or to attend any meeting held to
promote or support the activities or under-
takings of any political party of the United
States or of any State, district, Common-
wealth, territory, or possession of the United
States.
(h) To coerce or attempt to coerce any
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 noth-
ing contained in this sUbsection shall be
construed to prohibit any officer of any ex-
ecutive department or any executive agency
of the United States Government, or any
person acting or purporting to act under his
authority, from calling meetings and taking
any action appropriate to afford any civilian
employee of the United States the oppor-
tunity voluntarily to invest his earnings in
bonds or other obligations or securities is-
sued by the United States or any of its
departments or agencies, or voluntarily to
make donations to any institution or cause.
(1) 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 disclose any items of his prop-
erty, income, or other assets, source of in-
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penile support may be seriously under-
PI I fed,
a commitment can best be given, of
cte, by permanent, long-range financing
the Corporation_ From the beginning it
was understood that the authorization and
appropriation process was only an interim
(me, until such time as the Administration
ctit submit a permanent financing plan to
Lie Congress, Your Committee has repeated-
ly -urged this Administration and its pred-
eeaeor to act in this respect. It is hopeful
such a plan will soon be forthcoming.
the meantime, however, the Corporation
ri sat have funds if it is to continue to grow
and aid the development of public broad-
cosi ing.
Y,m.tr Committee believes that the provi-
seene oi S. 3558 represent' anextended corn-
nt by Congress to this worthwhile
avor, and urges its enactment.
ittiaorizing the appropriation of such
as may be necessary for fiscal years
1972, and 1973, enactment of the
et would remove the present necessity of
authorizing funds each year.
T?le ability to plan and negotiate projects
on more than a yearly basis is vital in broad-
COS:7 ng, especially in the expanding medium
os aroadcasting. The present necessity of
yearly authorizations has. your Committee
wee told, inhibited the Corporation from
-MR king longer-range plans.
.1. 3588 would also authorize part of the
aperopriated funds to match a dollar for
tioaar basis, grants, donations, bequests or
other contributions received by the Corpora-
eion from non-Federal sources.
Your Committee feels that this is an ex-
cellent manner to generate wider support for
the Corporation. It is hoped that many of
the conunercial broadcasters who have so
often attested to the merits of public broad-
and the Corporation will choose to
is 'a, the Corporation under this provision.
',Oen. Committee also wishes to draw at-
tet/t,ort to the section of the Public Broad-
,7-0 IA Tar Act which provides that interconnec-
aon service can be provided by carriers at
'free or reduced rates." The availability of
an effective distribution system is basic to
the expansion and improvement of public
broadcasting,
iii the negotiations that are currently -un-
derway or may go on in the future for estab-
:Leal ng an interconnection system, your Com-
e:Pleats-) hopes that the parties will exhibit the
T.ante: spirit and commitment that is expected
of ad segments of the society and govern-
ment if we are truly to have a vital system
of public broadcasting.
At this time your committee also wishes
to re-emphasize that noncommercial tele-
eielon and radio, even though supported by
Feotiral funds, must be absolutely free from
f;.ny tederal Government interference over
programming. This also means that the Cor-
poration and the individual stations are to
be insulated from the threat of political con-
trol. and special interest influence from any
5.Cearee whatsoever.
Tr/ FARIN GS
V.
1r committee conducted 2 days of in-
Lonely? hearings on S. 3558, during which it
Learti testimony from a representative of the
Depalq.ment of Health, Education and Wel-
fare; the Chairman of the Federal Communi-
caelons Commission; the Chairman of the
.ff,ee ht and President of the Corporation for
Public Broadcasting, respectively; the Presi-
dent of the National Association of Educa-
tional Broadcasters, and others. All witnesses
teseilied to the outstanding efforts of the
Corporation and its contribution to public
broadcasting.
While the witnesses recognized the desir-
ability, indeed the necessity of a plan for
permanently financing the activities of the
Corporation, all urged enactment of S. 3558
pending the adoption of Such a plan,
Honorable James Allen, Assistant Secretary
of Education, and U.S. Commissioner of Edu-
cation, testified for the Administration end
said that a three-year authorization is es-
sential to allow the Corporation to plan ef-
fectively and to commit funds for radio and
television projects for the home as well as the
school on a more than one-year basis
The Chairman of the FCC, Dean Burch,
supported enactment of S. 3558 as a needed
extension of the interim financing for the
Corporation. He also stressed the crucial im-
portance of obtaining for the Corporation at
the earliest possible time a permanent finan-
cial base not dependent upon annual appro-
priations. Too great a delay in finding the
permanent financing solution will, he said,
adversely affect the development of the Cor-
poration and thus of the nation's noncom-
mercial educational broadcasting systems.
Mrs. Joan Ganz Cooney, creator of "Sesame
Street," and president of the Children's Tele-
vision Workshop, testified that public tele-
vision should and Clearly can set. the bench-
mark against which all of television is
judged.
"Non-commercial broadcasting, she said,
has not heretofore had enough money to
undertake this vital role in American life. The
perennial shortage of funds baa made it
almost impossible to recruit and retain first-
rate talent for a continuing period of time
and there ia very little incentive to con-
ceive the type of Innovative broadcasting
that takes 1, 2 or 3 years to develop and
bring to fruition.
"I hope that this committee will see fit to -
heed the President's request for extended
financing for the Corporation for Public
Broadcasting. Only then, in my opinion, will
future Seasame Streets be possible."
Mrs. Ann Kahn, representing the National
Congress of Parents and Teachers, told the
committee that:
"The hard evidence of achievement we
have seen firsthand in the short life of the
Corporation?and the even greater promise
of its plans for the future--make it clear
to us that the funds requested in the legis-
lation before you today will represent an
extraordinarily wise and economical invest-
ment in improved education and opportu-
nities for enrichment of our Nation's
children."
The President of the Corporation for Pub-
lic Broadcasting, John Macy, summarized the
activities of the Corporation and its direc-
tion for the future when he told your Com-
mittee that:
"The introduction of some new programs
has been favorably received by the public
and is working to improve the relationship
between public broadcasting and audiences.
As a byproduct, the public seems to be show-
ing its appreciation by a greater willingness
to Make contributions.
"The interconnection agency, PBS, Is In
being and begining to operate.
"National Public Radio has been organized
and is ready to begin producing a full radio
service as soon as funding can be provided.
"We are probing the boundaries of present
,ecbuology in order to assure public broad-
casting avails itself of the improvements
that can be expected in the future.
"We are studying our audiences so as to
determine what programs work well and why
for the purpose of continually irnproving the
relevance and the communication value of
programs we support.
"We are actively engaged in making pub-
lic broadcasting a more attractive market so
that young people, writers, film makers,
artists of all types, will think of public broad-
casting as a place for their careers and for
their creations.
"We have a coordinated plan for the bal-
anced development of Corporation support
in the years immediately ahead.
"The crucial missing ingredient is Amin-
S 7331 -
clog. Authorization for the fineraerlig is pro-
vided by the bill before you. The Corpora-
tion strongly it; sore the bill and recom-
mends that yce act favorably on It "
.:Z.IZNDME NT
When the Pulaic Broadcast Act was being
considered, fears were expressed that tile gov-
ernment might influence puolic broadcast-
As a consequence, the intention that the
aerporation ante the individual stations be
,..:vaipletely free 0,-, any outside influence, gov-
ernmental or otnerwise, was expressed in the
etrougest terms possible by the Congress.
the Corporation and the stations are and
,,,hould be free.
In order to e.aure that this freedom re-
_mints unassailed. your Committee believes
;oat the noncommercial stations should keep
.:dequate record: including audio recordings
programs ta.ey broadcast that Involve
oublic affairs. In that way, if any one Seri-
...ably questions a station's impartiality or
,airuess, the rec,rci is there, and any doubts
nay be quickly resolved.
Your committee notes that noncommercial
are presently required by the Cor-
4oration for Public Broadcasting to provide
copy of any program to the Corporation
enicia has been specifically underwritten by
grant from the Corporation.
The amendment adopted herein is ex-
?,essly Intended to require noncommercial
Alucationai bre-it:least stations which re-
cived assistance ander Title II of the Public
iroadcasting Act to keep records, including
_Ludio recordings for a reasonable length of
Ante Of programs they broadcast involving
,eues of public importance, and to furnish
sCiti to the FCa if requested to do so. The
acmunissien in turn would make them avail-
eine to the requesting party at his expense
alder such circumstances and conditions as
slay he reasonatee and appropriate. In other
words, where a request is made for an audio
,eeording, the rectuesting party shall 'be re-
annisible to the station for the cost for re-
.roducing such recording deemed by the
annunission to be reasonable and proper.
It is to be emphasized that the amend-
sent only applies to programs involving
.eties of public importance such as public
stairs and news :,ype programs, and not to
egrains such is "Sesame Street,? "Ms-
erogers Neighborhood," etc.
In order to assure that an onerous burden
:4 not imposed by this amendment. your
ommittee feels that the records kept put-
sant to it shealld Oe retained for a reasonable
ngth of time, at least three months.
Moreover, where a program is broadcast
ver many statics is such as "The Advocates,"
a is expected that the Federal Commu.n1ca-
.0ns Commission will adopt appropriate
-.rocedures for Jetermining who will be
iiarged with the responsitility of keeping
'se required recoals in individual cases.
The committee wishes to make It clear
sat any member of the public may make the
ppropriate request for the audio recordings
,quired to be kept under this ernendment
Your cornnaittee also wishes to make it
aderstood that this amendment is in no
ay intended to Infringe on the autonomy of
nal stations or interfere with program pro-
action or content.
!?ICLUSTON
It cannot be emphasized strongly enough
at a nation whose children will have
itched 22,000 hours of television by the
'use they reach 16 years of age, and who
spends nearly one-quarter of its Wak-
g hours watchang television, has deeply
id irrevocably committed itself to that
edium.
The American people have shown that
Mlle television has a very special and
ded role, as demonstrated by their en-
aisiastic response and wide aceeptanoe of
r.ograms such as "Sesame Street," "The
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-
come, or liabilities, or his personal or do-
mestic expenditures or those of any member
of his family or household: Provided, how-
ever, That this subsection shall not apply
to any civilian employee who has authority
to make any final determination with re-
spect to the tax or other liability of any
person, corporation, or other legal entity
to the United States, or claims which re-
quire expenditure of moneys of the United
States: Provided further, however, That
nothing contained in this subsection shall
prohibit the Department of the Treasury or
any other executive department or agency
of the United States Government from re-
quiring any civilian employee of the United
States to make such reports as may be nec-
essary or appropriate for the determination
of his liability for taxes, tariffs, custom
duties, or other obligations imposed by law.
(j) To require or request, or to attempt to
require or request, any civilian employee of
the United States embraced within the terms
oT 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 house-
hold other than specific items tending to in-
dicate a conflict of interest in respect to the
performance of any of the official duties to
which he is or may be assigned.
(k) To require or request: or to attempt
to require or request, any civilian employee
of the United States serving in the depart-
ment or agency, who is under investigation
for misconduct, to submit to interrogation
which could lead to disciplinary action with-
out the presence of counsel or other person of
his choice, if he so requests: Provided, 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 serves, 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 other-
wise discriminate in regard to any term or
condition oT employment of, any civilian
employee 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 such employee to submit
to or comply with any requirement, request,
or action made unlawful by this Act, or by
reason of the exercise by such civilian em-
ployee of any right granted or secured by
this Act.
SEC. 2. It shall be unlawful f6r 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 department
or any executive agency of the United States
Government, or any officer or employee serv-
ing in such department or agency, to vio-
late 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 per-
son applying_sfor employment in the execu-
tive branch of the United States Govern-
ment, 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 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: Provided, however,
That nothing contained in this subsection
shall be construed to prevent a physician
from eliciting such information or authoriz-
ing such tests in the diagnosis or treatment
of any civilian employee or applicant where
such physician deems such information nec-
esssary to enable him to determine whether
or not such individual is suffering from men-
tal illness: Provided further, however, That
this determination shall be made in indi-
vidual cases and not pursuant to general
practice or regulation governing the exam-
ination of employees or applicants according
to grade, agency, er dirties: Provided further,
however, That nothing continued in this sub-
section shall be construed to prohibit an
officer of the Civil Service Commission from
advising any civilian employee or appli-
cant of a specific charge of sexual miscon-
duct made against that person, and afford-
ing him an opportunity to refute the charge.
(c) To require or request, or to attempt
to require or request, any person seeking
to establish civil service status or eligibility
for employment in the executive branch of
the United States Government, or any person
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 take any poly-
graph test designed to elicit from him infer-
- mation concerning his personal relationship
with any person connected with him by blood
or marriage, or concerning his religious be-
liefs or practices, or concerning his atti-
tude or conduct with respect to sexual
matters.
SEC. 3. It shall be unlawful for any com-
missioned officer, as defined in section 101 of
title 10, United States Code, or any member
of the Armed Forces acting or purporting to
act under his authority, to require or request,
or to attempt to require or request, any
civilian employee of the executive branch of
the United States Government under his
authority or subject to his supervision to
perform any of the acts or submit to any of
the requirements made unlawful by section
1 of this Act.
SEC. 4. Whenever any officer of any execu-
tive department or any executive agency
of the United States Government or any
person acting or purporting to act under
his authority, or any commissioned of-
ficer 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, violates or threatens to
violate any of the provisions of section 1, 2,
or 3 of this Act, any civilian employee of
the United States serving in any department
or agency of the United States Government,
or any person applying for employment in
the executive branch of the United States
Government, or any person seeking to estab-
lish civil service status or eligibility for em-
ployment in the executive branch of the
United States Government, affected or ag-
grieved by the violation or threatened viola-
tion, may bring a civil action in his own be-
half or in behalf of himself and others sim-
ilarly situated, against the offending officer
or person in the United States district court
for the district in which the violation oc-
curs or is threatened, or the district in
which the offending officer or person is found,
or in the United States District court for the
District of Columbia to prevent the threat-
ened violation or to obtain redress against
the consequences of the violation. The At-
torney General shall defend all officers or
persons sued under this section who acted
pursuant to an order, regulation, or directive,
or who, in his opinion, did not willfully vio-
late the, provisions of this Act. Such United
States district court shall have jurisdiction
to try and determine such civil action irre-
spective of the actuality or amount of pe-
cuniary injury done or threatened, and with-
out regard to whether the aggrieved party
S 7353
shall have exhausted any administrative
remedies that may be provided by law, and
to issue such restraining order, interlocu-
tory injunction, permanent injunction, or
mandatory injunction, or enter such other
judgment or decree as may be necessary or
appropriate to prevent the threatened viola-
tion, or to afford the plaintiff and others sim-
ilarly situated complete relief against the
consequences of the violation. With the writ-
ten consent of any person affected or ag-
grieved by a violation or threatened violation
of section 1, 2, or 3 of this Act, any em-
ployee organization may bring such action
on behalf of such person, or may intervene
in such action. For the purposes of this sec-
tion, employee organizations shall be con-
strued to include any brotherhood, council,
federation, organization, union, or profes-
sional association made up in whole or in
part of civilian employees of the United
States and which has as one of its purposes
dealing with departments, agencies, commis-
sions, and independent agencies of the
United States concerning the condition and
terms of employment of such employees.
SEC. 5. (a) There is hereby established a
Board on Employees' Rights (hereinafter re-
ferred to as tb,e "Board"). The Board shall
be composed of three members, appointed
by the President, by and with the advice and
consent of the Senate. The President shall
designate one member as chairman. No more
than two members of the Board may be of
the same political party. No member of the
Board shall be an officer or employee of the
United States Government.
(b) The term of office of each member of
the Board shall be five years, except that (1)
of those members first appointed, one shall
serve for five years, one for three years, and
one for one year, respectively, from the date
of enactment of this Act, and (2) any 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 in the work of the Board, and shall
be paid actual travel expenses and per diem
in lieu of subsistence expenses when away
from their usual places of residence, as au-
thorized by section 5703 of tie 5, United
States Code.
(d) Two members shall constitute a quo-
rum for the transaction of business.
(e) The Board may appoint and fix the
compensation of such officers, attorneys, and
employees, and make such expenditures, as
may be necessary to carry out its functions.
(f) The Board shall make such rules and
regulations as shall be necessary and proper
to carry out its functions.
(g) The Board shall have the authority
and duty to receive and investigate written
complaints from or on behalf of any person
claiming to be affected or aggrieved by any
violation or threatened violation of this Act
and to conduct a hearing on each such com-
plaint. Within ten days after the receipt of
any such complaint, the Board shall furnish
notice of the time, place, and nature of the
hearing thereon to all interested parties. The
Board shall render its final decision with re-
spect to any complaint within thirty days
after the conclusion of its hearing thereon.
(h) Officers or representatives of any Fed-
eral employee organization in any degree
concerned with employment of the category
in which any alleged violation of this Act
occurred or is threatened shall be given an
opportunity to participate in each hearing
conducted under this section, through sub-
mission of written data, views, or arguments,
and in the discretion of the Board, with op-
portunity for oral presentation. Government
employees called upon by any party or by
any Federal employee organization to partic-
ipate in any phase of any administrative or
judicial proceeding under this section shall
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ma free to do so without incurring travel cost
ir suffering loss in leave or pay; and all such
employees shall be free from restraint, coer-
sion, interference, intimidation, or reprisal in
ai- because of their participation. Any periods
1 time spent by Government employees dur-
eg such participation shall be held and
emisidered to be Federal employment for all
;purposes.
(i) Insofar as consistent with the pur-
prises of this section, the provisions of sub-
, eapter If of chapter 5 of title 5, United
Sates Code, relating to the furnishing of
eistice and manner of conducting agency
hearings, shall be applicable to hearings con-
meted 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
ahall state its determination and notify all
interested parties of such determination.
'Nisch 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 employee
of. he United States, the Board shall :im-
mediately (1) issue and cause to be served
on such officer or employee an order requir-
ing such officer or employee to cease and de-
sist from the unlawful act or practice which
constitutes a violation, (2) endeavor to elim-
inate any such unlawful act or practice by
Informal methods of conference, conciliation,
aen 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
tile President, by and with the advice and
consent of the Senate. issue an official
reprimand against such officer or employee
or order the suspension without pay of such
miteer or employee from the position or office
held by him for a period of not to exceed
fifteen days, and in the case of a second
er subsequent offense by any such officer or
employee, order the suspension without pay
of such officer or employee from the position
It office held by him for a period of not to
exceed thirty days or order the removal of
auett officer or employee from such position
or office; and
00 in the case of any offense by any
officer appointed by the President, by and
with the advice and consent of the Senate,
sr:Insmit a report concerning such violation
to the President and the Congress.
1..) If the Board shall determine that any
violation of this Act has been committed
or threatened by any officer of any of the
armed Forces of the United States, or any
person purporting to act under authority
conferred by such officer, the Board shall
) submit a report thereon to the President.
he Congress, and the Secretary of the mill-
ry department concerned, (2) endeavor to
eliminate any unlawful act or practice which
eonstitutes 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-
:zed to convene general courts-martial under
asietion 822 (article 22) of title 10, United
estates Code. Thereupon such person shall
take immediate steps to dispose of the matter
ender chapter 47 of title 10, United States
aane (Uniform Code of Military Justice).
;
to Any party aggrieved by any final de-
e:alienation or order of the Board may in-
atituse, in the district court of the United
eiates nar the judicial district wherein the
sioiation or threatened violation of this Act
eeaurred, or in the United States District
(rourt for the District of Columbia, a civil
Ion for the review of such determination
? erder. In any such action, the court shall
Save jurisdiction to (1) affirm, modify, or
sae: adds any determination or order made by
Board which is under review. or (2) re-
quire the Board to make any determination
or order which it is authorized to make 111
subsection (k), but which it has refuseit,
make. The reviewing court shall set aside 'Y
finding, conclusion, determination, or es at
of the Board as to which complaint is in
'which is unsupported by substantial evide 'e
on the record considered as a Whole.
(n) The Board shall submit, not later t it
March 31 of each year, to the Senate al
House of Representatives, respectively, a
pOrt Ma its activities under this section el r-
ing the immediately preceding calendar y r,
including a statement concerning the nat .e
of all complaints filed with it, its deterroi --
tions and orders resulting from hear!, es
thereon, and the names of all officers ors
ployees of the United States with respees
whom any penalties have been imposed tin r
this section.
(o) There are authorized to be apprei f-
ated sums necessary, not in excess of $100, O.
to carry out the provisions of this sectioe
Sec. 6. Nothing contained in this Act al. 11
be construed to prohibit an officer of is
Central Intelligence Agency or of the Nati -
al Security Agency from requesting r 'y
civilian employee or applicant to te e
a polygraph test, or to take a p
chological test, designed to elicit from la
information concerning his personal relate- --
ship with any person connected with him y
blood or marriage, or concerning his religii - 3
beliefs or practices, or concerning his ,
titude or conduct with respect to sexual m
tars, or to provide a personal financial sta
If the Director of the Central Ine. -
ligence Agency or his designee or the Die -
tor of the National Security Agency or 3
designee makes a personal finding with -
gard to each individual to be so tested r
examined that such test or information 3
required to protect the national security.
Sze. 7. No civilian employee of the Ifni 1
States serving in the Central Intelligei is
Agency or the National Security Agency, az d
no individual or organization acting in S -
half of such employee, shall be permitted a
invoke the provisions of sections 4 and 3
without first submitting a written compliv
to the agency concerned about the three -
ened or actual violation of thi$ Act a, 1
affording such agency one hundred a 1
twenty days from the date of such compla' t.
to prevent the threatened violation or
redress the actual violation: Provided, Ito.
ever, That nothing in this Act shall be cc -
strued to affect any existing authority of t,
Director of Central Intelligence Under ea
tion 403(c), of title 50, United States Coit
and any authorities available to the Natioa
Security Agency under section 833 Of tis
50, United States Code, to terminate the es: -
ployment of any employee.
SEC. 8. Nothing in this Act shall be co: -
strued to affect in any Way the authority '
the Directors of the Central Intelligen
Agency or the National Security Agency ,
protect or withhold information pursuant .
statute or executive order. The personal cc.
tification by the Director of the agency tb,
disclosure of any information is inconsiste
with the provision of any statute or exec
tive order shall be conclusive and no stli
Information shall be admissible in eviden
In any interrogation under section 1(k) or
any civil action under section 4 or in any pi
ceeding or civil action under section 5.
SEC. 9. This Act shall not be applicable
the Federal Bureau of Investigation.
Sec. 10. Nothing contained in sections
and 5 shall be construed to prevent estait
lishment of department and agency grievaa
procedures to enforce this Act, but the exts,
ence of such procedures shall not preeltle
any applicant or employee from pursuing tl,
remedies established by this Act or any 0th
remedies provided by law: Provided, hot
ever, That if under the procedures estal,
fished, the employee or applicant has Of
:rained Complete protection against threa"
ened violations or complete redress fs
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 aection 5. he waives his right to
proceed by an independent 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 intend, the re-
mainder of this Act or the application of such
provision to persons or circumstances other
than those as to which it is held invalid, shall
not be affected.
The amendments were agreed to.
The bill was ordered to be engrossed
for a third reading, read the third time,
and passed.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent to have printed
in the RECORD an excerpt from the re-
port (No. 91-873), explaining the pur-
poses of the measure.
There being no objection, the excerpt
was ordered to be printed in the RECORD,
as follows:
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 would make it illegal to coerce
an employee to buy bonds or make chari-
table contributions. It prohibits officials
from requiring him to disclose his own per-
sonal 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 interest. It would provide a right to have
a counsel or other person present, if the
employee 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 vio-
lation of the act, and it would establish a
Board on Employees' Rights to receive and
conduct hearings on complaints of viola-
tion of the act and to determine and ad-
minister remedies and penalties.
S.782, 91st Congress?Commtlee
amendments
S. 782, as introduced by Senator Ervin
with 54 eosponsors, was identical to S. 1035
of the 90th Congress as passed by the Sen-
ate.
The Subcommittee met in executive ses-
sion on July 22, 1969, to receive testimony
from Richard Helms, Director of the Cen-
tral Intelligence Agency and other agency
representatives On the basis of this testi-
mony and after a ntunber of meetings of
subcommittee members with officials of the
Central Intelligence Agency. the National
Security Agency, and the Federal Bureau
of Investigation, the language contained in
the committee amendments was drafted and
meets with the approval of the Directors of
those agencies.
STATEMENT
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 government
now and those who will work for it in the
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kott5muArit likleA3E?..ISPRAM0001 00040015-4
future. The bill, therefore, not only reme-
dies problems of today but looks to the
future, in recognition i 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.
Second, the bill meets the Federal Gov-
ernment's need to attract the best qualified
employees and to retain them As the for-
mer Chairman of the Civil Service Commis-
sion, Robert Rarnspeck, testified:
Today, the Federal Government affects the
lives of every human being in the United
States. Therefore, we need better people to-
day-, better qualified people, more dedicated
people, in Federal service than we ever
needed before. And we cannot get them if
you are going to deal with them on the basis
of suspicion, and delve into their private..
lives, because if there is anything the aver-
age 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 Federal
Government to acquire the type of person-
nel that we must have in, the career service.
Third is the growing need for the beneficial
influence which such a statute would provide
in view of the present impact of Federal pol-
icies, regulations and practices on those of
State and local government and of private
business and industry. An example of the
interest demonstrated by governmental and
private employers is the following comment
by Allan J. Graham, secretary of the Civil
Service Commission of the city of New York:
It is my opinion, based on over 25 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 "Big Brother-
ism," which constitutes a very real threat
to our American way of life.
In my present position as secretary of the
Civil Service Commission of the city of New
York, I have taken steps to propose the in-
clusion of several of the concepts of your bill
into the rules and regulations of the city
civil service commission.
Passage of the bill will signify oongres-
sional recognition of the threats to individ-
ual privacy posed by an advanced technology
and by increasingly more complex organiza-
tions. Illustrating these trends is the greatly
expanded use of computers and governmen-
tal and private development of vast systems
for the efficient gathering of information
and for data storage and retrieval. While
Government enjoys the benefit of these de-
velopments, there is at the same time an ur-
gent need for defining the areas of individual
liberty and privacy which should be exempt
from the unwarranted intrusions 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 citi-
zen against invasion of privacy," states Prof.
Stanley Anderson of the University of Cali-
fornia, Santa Barbara. -"No citizens," in his
opinion, "are in more immediate danger of
incursion into private affairs than Govern-
ment employees. When enacted the bill will
provide a bulwark of protection against such
incursions."
The bill is based on several premises which
the subcommittee investigation has proved
valid for purposes of enacting this legisla-
tion. The first is that civil servants do not
surrender the basic rights and liberties
which are their due as citizens under the
Constitution of the United States by their
action in accepting Government employ-
ment. Chief among these constitutional pro-
tections is the first amendment, which pro-
teats the employee to privacy in his
thoughts, beliefs and attitudes, to silence in
his action and participation or his inaction
and nonparticipation in community life and
civic affairs. This principle is the essence of
constitutional liberty in a free society.
The constitutional focus of the bill was
emphasized by Senator Ervin in the follow-
ing terms when he introduced S. 1035 on
February 21,1967:
If this bill is to have any meaning for those
it affects, or serve as a precedent for those
Who seek guidance in these matters, its pur-
pose must be phrased in. constitutional
terms. Otherwise its goals will be lost.
We must have as our point of reference
the constitutional principles which guide
every official act of our Federal Government.
I believe that the Constitution, as it was
drafted and as it has been implemented,
embodies a view of the citizen as possessed of
an inherent dignity and as enjoying certain
basic liberties. Many current practices of
Government affecting employees are uncon-
stitutional; they violate not only the letter
but the very spirit of the Constitution.
I introduced this bill originally beoause
I believe that, to the extent it has per-
mitted or authorized unwarranted invasion
of employee privacy and unreasonable re-
strictions on their liberty, the Federal Gov-
ernment has neglected its constitutional
duty where its own employees are concerned,
and it has failed in its role as the model em-
ployer for the Nation.
Second, although it is a question of some
dispute, I hold that Congress has a duty
under the Constitution not only to consider
the constitutionality of the laws it enacts,
but to assure as far as possible that those
In the executive branch responsible for ad-
ministering the laws adhere to constitution-
al standards in their programs. policies, and
administrative techniques.
The committee believes that It is time
for Congress to forsake its reluctance to tell
the executive branch how to treat its em-
ployees. When so many American citizens are
subject to unfair treatment, to being unrea-
sonably coerced or required without warrant
to surrender their liberty, their privacy, or
their freedom to act or not to act, to reveal
or not to reveal information about them-
selves and their private thoughts and ac-
tions, then Congress has a duty to call a
statutory halt to such practices. It has a
duty to remind the executive branch that
even though it might have to expend a little
more time and effort to obtain some favored
policy goal, the techniques and tools must
be reasonable and fair.
Each section of the bill is based on evi-
dence from many hundreds of cases and
complaints showing that generally in the
Federal service, as in any similar organiza-
tional situation, a request from a superior
Is equivalent to a command. This evidence
refutes the argument that an employee's re-
sponse to a superior's request for informa-
tion or action is a voluntary response, and
that an employee "consents" to an invasion
of his privacy or the curtailment of his lib-
erty. Where his employment opportunities
are at stake, where there is present the eco-
nomic coercion to submit to questionable
practices which are contrary to our consti-
tutional values, then the presence of consent
or voluntarism may be open to serious doubt.
For this reason the bill makes it illegal for
officials to "request" as well as to "require"
an employee to submit to certain inquiries
or practices or to take certain actions.
Each section of the bill reflects a bal-
ancing of the interests involved: The inter-
est of the Government in attracting the best
qualified individuals to its service; and its
interest in pursuing laudable goals such as
protecting the national security, promoting
equal employment opportunities, assuring
mental health, or conducting successful
bond-selling campaigns. There is, however,
S 7355
also the interest of the individual in protec-
tion of his rights and liberties as a private
citizen. When he becomes an employee of
his Government, he has a right to expect
that the policies and practices applicable to
him will reflect the best values of his society.
The balance of interests achieved assures
him this right. While it places no absolute
prohibition on Government inquiries, the
bill does assure that restrictions on his rights
and liberties as a Government employee are
reasonable ones.
As Senator Bible stated:
There is a line between what is Federal
business.and 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 co-
ercion and economic intimidation are ramp-
ant 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 sur-
render this precious liberty in order to ob-
tain and hold jobs is an invasion of privacy
which should disturb every American. I
therefore, strongly believe that congressional
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 timed. It appears on the legislative ?
scene during a season of public employee
unrest, and a period of rapidly accelerating
demand 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
citizenship. S. 3779, therefore, amply de-
serves the fullest support of all employee
organizations, both public and private, fed-
eration affiliated, and independent alike.
Similiar statements endorsing the broad
purpose of the bill were made by many
others, including the following witnesses:
John F. Griner, national president, Amer-
ican Federation of Government Employees.
E. C. Hallbeck, national president, United
Federation of Postal Clerks.
Jerome Keating, president, National As-
sociation of Letter Carriers.
Kenneth T. Lyons, national president, Na-
tional Association of Government Employees.
John A, McCart, operations director, Gov-
ernment Employees Council of AFL-CIO.
Hon. 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-
tions) Federation of Federal Employees.
Mr. ERVIN. Mr. President, S. 782 is a
bill, unanimously approved with amend-
ments by the Judiciary Committee, to
protect the constitutional rights of civil-
ian employees of the executive branch
and to prevent unwarranted govern-
mental invasions of their privacy.
This proposal, which I first introduced
in 1966, is the result of a study by the
Constitutional Rights Subcommittee.
The purpose of the bill is to prohibit
indiscriminate or arbitrary executive
branch requests or requirements that em-
ployees and, in certain instances, appli-
cants for Government employment:
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Disclose their race, religion, or national
origin;
Attend Government-sponsored meet-
ings and lectures or participate in out-
side activities unrelated to their employ-
merit;
Report on their outside activities or
undertakings unrelated to their work;
Submit to questioning about their re-
Ogious beliefs and practices, personal
:ainily relationships or sexual attitudes
Led conduct through interviews, psycho-
eigical tests, or polygraphs; and
Support political candidates or attend
political meetings.
The bill would make it illegal to coerce
IA employee to buy bonds or make chari-
table contributions.
It prohibits officials from requiring him
disclose his own personal assets, lia-
bilities, or expenditures, or those of any
member of his family unless, in the case
in certain specified employees, such items
eould tend to show a conflict of interest.
It would provide a right to have cceinsel
or other person present, if the employee
wishes, at an interview which may lead
disciplinary proceedings.
It would accord the right to a civil ac-
tion in a Federal court for violation or
threatened violation of the act, and it
would establish a Board on Employees'
Rights to receive and conduct hearings
on complaints of violation of the act and
o determine and administer remedies
and penalties.
S. 782 is sponsored by 55 Senators. Ex-
cept for committee amendments provid-
ing certain exemptions for the unique
problems of the Central Intelligence
Agency, the National Security Agency,
and the Federal Bureau of Investiga-
tion, it is identical to S. 1035, approved
by the Senate in 1967.
Mr. President, by approving S. 782, the
Senate has recognized the monumental
truth that if history teaches us anything,
It, teaches us that a nation which ignores
the lessons of history is doomed to repeat
the mistakes of its past. Although the
hill is based mostly on unwise and un-
constitutional practices and programs
undertaken by Federal officials in pre-
vious years, many of the injustices con-
tinue unabated. Furthermore, the op-
portunity for depriving the individual
rights of employees or of seriously lim-
iting them still exists. It will continue
to exist until Congress enacts a law pro-
hibiting such deprivations and limita-
tions.
The extent of the wrongs inflicted on
employees will vary with the vigor and
zeal and the political needs of those who
control the Federal Government. S. 782
is an attempt to define the constitutional
boundaries of their actions as they affect
those who work for the Federal Govern-
ment.
Mr. President, more has been written
anti spoken in the Congress and in the
t.ennetry on this one issue and about this
legislation than any other proposal in
)w memory. This record is documented
'it the committee report and particu-
sotly in the CONGRESSIONAL RECORD of
eeptember 13, 1967, when the Senate
missed S. 1035.
We have heard much lately of the
complaint that Government does not re-
sound quickly and adequately enough to
oetitions for redress of grievances.
This bill is a direct outgrowth of tilt -
sands of specific complaints to Congie
by individual employees and their fa
ilies. by their organizations and unite
by applicants, and by private cilia s
concerned with loss of liberties. It s
proof that Congress does hear and ti.. t
It will act. These people took the time al I
effort to communicate their grievances
considerable detail and with an eloquer
which always displayed a deep and abi -
ing faith in the system of govern= t
of which they are such a vital part, I
these times of stress, their contine
faith in the democratic process is esser -
tial. Despite the obstacles they frequent
f ace, I believe their adherence to the
processes is our surest guarantee the. t
the constitutional principles on whi
our Government is founded will endu
The letters which I and others in Co, -
gress receive are the products of educats
and informed concern about the probleo ;
which confront employees as citizen
Their patience despite injustices, tee
willingness to abide by the constitutior 1
rules and to seek remedies under tlus
rules provide the best illustration our N,
tion can offer of citizens keeping fait 1
with the founders of our Constitutirt,
Congress does not always heed tilt
pleas. There are frequently long dello,
and the resulting legislation does ro
always meet their expectations. But th
important thing is that they keep tryir ,
writing letters, telephoning, and expres
Ing concern. During the last electio
campaign many of them demanded th
the issues of privacy and employee right.;
be faced by individual candidates and It
both political parties.
The parties and the candidates
sponded, and I believe they must con
tinue to respond until S. 782 is enact(
into law.
I should like to restate for the rem:
my convictions about this proposal whit e
I expressed at the time of its passage O
the last Congress. I believe that with tin
bill. Congress has a chance to resit!
the belief of the American people in
value system as old as Western civilize
tion; that is, in the dignity of the in
dividual; in the unfettered enjoyment
his personal thoughts and beliefs fn
of the control of government; and in tr.'
worth of the expression of his persona/
in the democratic society.
S. 782 affords Congress the opportunit _
to take a stand on one of the most on
cial philosophical and practical problen
facing our society?the preservation o
individual freedom in an age of scier
tific technology, computers, and dat
banks.
Many learned people have analyzed tie
legal and scientific issues raised by MI
needs to meet certain goals of govern
ment in a country as vast and diverss
as ours. But they have balanced the in
terests back and fourth until they hat,
lost track of the basic issues of libert
involved.
The Founding Fathers drafted a con
stitution that was meant to protect th
liberty of Americans of every era, for it
principles are enduring ones. One of th
fundamental aspects of our liberty a,
free men is the privacy of our irmennos,
thoughts, attitudes, and beliefs: this in,
eludes not only our freedom to expres
them as we please, but the freedom from
any form of governmental coercion to
reveal them. Another aspect is the con-
stitutional protection against self-in-
crimination for civil servants as well as
for criminals and others.
In its report on the bill, the committee
stated:
Each section of the bill is based on evi-
dence from many hundreds of cases and
complaints showing that generally in the
Federal service, as in any similar organiza-
tional situation, a request from a superior
Is equivalent to a command. This evidence
refutes the argument that an employee's
response to a superior's request for informa-
tion or action is a voluntary response, and
that an employee "consents" to an invasion
of his privacy or the curtailment of his lib.
erty. Where his employment opportunities
at stake, where there is present the eco-
nomic coercion to submit to questionable
practices which are contrary to our con-
stitutional values, then the presence of con-
sent or voluntarism may be open to serious
doubt. For this reason the bill makes it ille-
gal for officials to "request" as well as to "re-
quire" an employee to submit to certain in-
quiries or practices or to take certain ac-
tions.
No one should be deluded that this bill
is a panacea for all the ills besetting the
Federal service, all of the invasions of
privacy, all of the violations of basic due
process principles.
There are many areas left untouched,
as the subcommittee daily mail will show.
Passage of the bill will correct some vio-
lations, and provide some recourses
against violations. But more important-
ly, it will establish a precedent in this -
area of the law and create a climate for
decisionmaking in the executive branch.
The zealous men, the unthinking, care
less, hurried. impatient, pressured, or
misinformed men will still make unrea-
sonable or illegal decisions. We cannot
legislate against all manner of fools or
their follies. Where their decisio.ns affect
the liberties of the citizens, we can only
provide the basic standards by which
they can be controlled. For the conscien-
tious administrator anxious to do his
job well, achieving the maximum bene-
fit for Government and observing in-
dividual rights at the same time, the bill
provides a uniform guide. He will not
need to sit and ponder whether to follow
his conscience or an illegal order or
whether or not to utilize a questionable
scientific method.
The law will state clearly what his own
rights and duties are in certain areas.
By the same token, it assures the rights
of the individual employee and appli-
cant.
I confess that were I legislating alone,
I would rather see fewer compromises
and exceptions than are now contained
in the bill. I see no necessity for any of
the practices prohibited in S. 782.
Unfortunately, some people, both in
Government and out, have not yet been
alerted to the dangers posed by these
policies and practices. For them, the
symbolic act or the technique?the
means?still triumph over purpose, how-
ever unrelated the two.
A threefold need for this bill is out-
lined in the committee report.
The first is the immediate need to es-
tablish a statutory basis for the preser-
vation of certain rights and liberties of
those citizens who now work for Gov-
ernment and those who will work for it
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.4 ? SLINA1
In the future. The bill not only remedies
problems of today but looks to the fu-
ture in recognition of the almost cer-
tain enlargement of the scope of Fed-
eral activity and the continuing rise in
the number of Americans employed by
their Federal Government or serving it
in some capacity.
Second, the bill meets the Federal
Government's need to attract the best
qualified employees, and to retain them
with the assurance that they will be
treated fairly and as people of honesty
and integrity.
Third, is the growing need for the
beneficial influence which such a statute
would provide in view of the present im-
pact of Federal policies, regulations, and
practices on those of State and local gov-
ernment and of private business and
industry.
The Civil Service Commission has
made a good-faith effort to eliminate
-rnne of the privacy-invading practices
.1 the Federal Government. Also, as a
result of complaints which the subcom-
mittee has sent to the Civil Service Com-
mission, some individual grievances have
been remedied.
But while isolated cases of injustice
may be corrected by congressional inter-
vention, they do not, as with judicial
decisions on the rights of criminals, es-
tablish a precedent for protecting rights
of all employees. There are vast numbers
of Federal agencies with decentralized
personnel systems, responsive in different
ways to policy directives. In some cases,-
they lack any control at all by Congress,
the Presidentthe Civil Service Commis-
sion, or in some instances, even by the
head of the department or agency. They
are, in effect beyond the reach of the law.
The reply of some in the executive
branch has been that Government em-
ployment is a privilege, and if the indi-
vidual does not like his treatment, he
can quit.
The Association of the Bar of the City
of New York has a reply to this. Their
report on the bill states:
The Ervin bill recognizes the existence of
some serious shortcomings in the behavior
of the Executive Branch of the Federal Gov-
ernment as an employer. There are today
almost three million persons employed by the
Federal Government and the number can be
expected to grow. It is not possible, therefore,
to deal with the problem within the narrow
framework of an employee's option to quit
his employment if the conditions are not to
his taste.
Employment by the Federal Government
should not be regarded as a privilege to be
withheld or conditioned as the Government
sees fit. Indeed, there is an obligation on the
part of the Federal Government to have more
than the usual respect for rights of privacy.
It is already a late date for the Federal
Government to begin showing respect for
the rights of privacy. But the Senate has
taken the first step today by passing
S. 782.
I ask unanimous consent to insert at
this point in the RECORD an excerpt from
the Judiciary Committee report on the
bill?senate Report No. 873, pages '7
through 10, and pages 12 through 48.
This contains the legislative history of
the bill and a section-by-section analysis.
There being no objection, the excerpt
was ordered to be printed in the RECORD,
as follows:
SENATE REPORT No. 873, 91sr CONGRESS,
SECOND SESSION; PROTECTING PRIVACY AND
THE RIGHTS OF FEDERAL EMPLOYEES
LEGISLATIVE HISTORY
Violations of rights covered by the bill as
well as other areas of employee rights have
been the subject of intensive hearings and
investigation by the subcommittee for the
last five Congresses.
In addition to investigation of individual
cases, the Subcommittee on Constitutional
Rights has conducted annual surveys of
agency policies on numerous aspects of Gov-
ernment personnel practices. In 1965, pur-
suant to Senate Resolution 43, hearings were
conducted on due process and improper use
of information acquired through psycho-
logical 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 re-
ports from responsible sources concerning
violations 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
courteous, 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 already
been the subject of hearings by the subcom-
mittee. Other matters, such as improper and
insulting questioning during background In-
vestigations and due process guarantees in
denial of security clearances have also been
the subject of study. Other employee com-
plaints, fast becoming too numerous to cata-
log, concern such diverse matters as psychia-
tric interviews; lie detectors; race question-
naires; restrictions on communicating with
Congress; pressure to support political parties
yet restrictions on political activities;
coercion to buy savings bonds; extensive
limitations on outside activities yet admin-
istrative influence to participate in agency-
approved functions; rules for. verf iting, speak-
ing and even thinking; and requirements 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 deter-
mine the qualifications of applicants. Ap-
parently, 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-
termine whether the scope of the programs
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.
S. 1035 was preceded 'by S. 3703 and S. 3779
in the second session of the 89th Congress.
S. 3703 .was introduced by the chairman on
August 9, 1966, and referred to the Judiciary
S 7357
Committee. On August 25, 1966, the chairman
received unanimous consent to a request 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 re-
ferred 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
Hearings on S. 3779 were conducted be-
fore the subcommittee on September 23,
29, 30, and October 3, 4, and 5, 1966. Report-
ing to the Senate on these hearings, the sub-
committee chairman made the following
statement:
"The recent hearings on S. 3779 showed
that every major employee organization and
union, th, usa,nds 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 bought to our attention in
connection with bond sales, and Government
charity drives.
"Case after case was cited of privacy in-
vasion. and denial of due process In con-
nection with the new financial disclosure
requirements. A typical case is the attorney
threatened with disciplinary action or loss
of his job because he is both unable and
unwilling to list all gifts, including Christ-
mas 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 engineer who was told by the
personnel officer that he would have to take
disciplinary action against the 25 profes-
sional employees in his division who resented
being forced to disClose the creditors and
financial interests of themselves and mem-
bers of their families. Yet there are no pro-
cedures for appealing the decisions of su-
pervisors and personnel officers who are
acting under the Commission's directive.
These are not isolated instances; rather, they
represent a pattern of privacy invasion re-
ported from almost every State.
"The subcommittee was told that super-
visors are ordered to supply names of ern.
ployees who attend PTA meetings and engage
in Great Books discussions. Under one do
partment's regulations, employees are re-
quested to participate in specific commun.
ity activities promoting local and /Federal
antipoverty, beautification, and equal ern-
ployment 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 beautification projects, and to
paint other people's houses. When these regu-
lations were brought to the subcommittee's
attention several weeks ago, we were told that
they were in draft form. Yet, we then dis-
covered they had already been implemented
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 intimi-
dation, arm twisting and more subtle forms
of coercion which result when a superior Is
'See also, Cong. If Comments.
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S 7358 CONGRESSIONAL RECORD? TATEMay. lg, 1976 - ?
requested to obtain employee participation
In a program, We have seen this in the opera-
tion of the bond sale campaign, the drives
or charitable contributions, and the use of
ielf-identification minority status question-
sires. We have seen it in the sanctioning
of polygraphs, personality tests, and im-
proper questioning of applicants for employ-
lent.
To view of some of the current practices
reported by employee organizations and
,nions, it seems those who endorse these
tectoniques for mind probing and thought
,entrol of employees have sworn hostilfty
lgainst 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
rave the right to think foolish thoughts as
rell as wise ones. They forget that the first
imendment implies the right to remain silent
Is well as the right to speak freely?the
eight to do nothing as well as the right to
..elp implement lofty ideals.
It is not under this administration alone
:len 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
nave been prevalent for many years with
,ittle or no administrative action taken to
Atempt to ameliorate them. Despite congres-
sional concern, administrative officials have
failed to discern patterns of practice in denial
of rights. They seem to think that if they
belatedly remedy one case which is
"-irought to the attention of the Congress,
i.;tie public and the press, that this is
tuough?that the 'heat' will subside. With
eintering generalities, qualified until they
oiean nothing in substance, they have sought
throw Congress off the track in its pursuit
of permanent corrective action. We have seen
i?ms in the case of personality testing, in the
use of polygraphs, and all the practices which
e. 3779 would prohibit.
The Chairman of the Civil Service Com-
mission informed the subcommittee that
mere is no need for a law to protect em-
polyee rights. He believes the answer is 'to
eermit executive branch management and
executive branch employees as individuals
and through their unions, to work together
,;0 resolve these issues as part of their nor-
?eial discourse.'
-It is quite clear from the fearful tenor
et the letters and telephone calls received by
subcommittee and Members of Congress
nat there is no discourse and is not likely to
1.)e any discourse on these matters between
..ae Commission and employees. Further-
more, there are many who do not even fall
within the Commission's jurisdiction. For
elem. there is no appeal but to Congress.
As for the argument that the discourse
:,etween the unions and the Commission will
e.(riedy the wrongs, the testimony of the
union representatives adequately demolishes
dream.
-The typical attitude of those responsible
.f,ni personnel management is reflected in Mr.
',Ailey's answer that there may be instances
i'nere policy is not adhered to, but 'There
iiiways someone who doesn't get the word.'
.urrective administration action, he says, is
? lity adequate to protect employee rights.
-Administrative action is not sufficient.
Furthermore, in the majority of complaints,
ie wrong actually stems from the stated
policy of the agency or the Commission. How
an these people be expected to judge objec-
i welt, the reasonableness and constitutional-
y of their awn policies? This is the role of
!ongress. and in my opinion, Congress has
waited too long as it is to provide the guid-
.oice that is desperately needed in these
i era"
S. 1035, 90th Congress
tin the basis of the subcommittee hear-
s. agency reports, and the suggestions of
.oany experts, the bill was amended to meet
1,gltimate objections to the scope and lan-
ertge raised by administrative witnesses and
, clarify the intent of its cosponsors that
it does not apply to the proper exercise r
management authority and supervisory dl
oration, or to matters now governed h
statute.
This amended version of S. 3779 was MU* -
duced in the Senate by the chairman o
February 21, 1967, as S. 1035 with 54 cospo'
sors. It was considered by the Constitution,
Rights Subcommittee and unanimously tr -
ported with amendments, by the JudIciar
Committee on August 21, 1967. [S. Rept. 1?7
534, 90th Cong., 1st Sess.) The proposal W.
considered by the Senate on September 1
1967, and approved, with floor amendment ,.
by a 79 to 4 vote. After absentee rapproWi'
were recorded, the record showed a total of :7. /
Members supported passage of the bill. T1
amendments adopted on the Senate fie: -
deleted a complete exemption which te -
committee bill provided for the Federal B-,
reau of Investigation; instead, it was pr*
rifled that the Federal Bureau of Invest, -
gation should be accorded the same limit,
exemptions provided for the Central Intel
ligence Agency and the National Securii
Agency. A provision was added to allow l'?'t
three Directors to delegate the power to ma's
certain personal findings required by se;
tion 6 of the bill.
Comparison of S. 1035, 90th Congress, 4-
introduced, and S. 3779, 89th Congress
As introduced, the revised bill, S. ilK ,
differed from S. 3779 of the 89th Congre'
in the following respects:
1. The section banning requirements I
disclose race, religion, or national origt ii
was amended to permit inquiry on citize,
ship where it is a statutory condition
employment.
2. The provision against coercion of er
ployees to buy bonds or make charitg,"
donations was amended to make it cle. -
that it does not prohibit calling meetings er
taking any action appropriate to afford te.?
employee the opportunity voluntarily to lir-
,
vest or donate.
:3. A new section providing for adminiii
trative remedies and penalties establiser
a Board on Employee Rights to receive an i
conduct hearings on complaints of violatie
of the act, and to determine and admine -
ter remedies and penalties. There is judice
review of the decision under the Admirile
trative Procedure Act.
4. A specific exemption for the Federal B
ream of Investigation is included.
5. Exceptions to the prohibitions on pi-
vacy-invading questions by examinatior
interrogations, and psychological tests pr-'
provided upon psychiatric determinatifo
that the information is necessary in
diagnosis and treatment of mental illne'
in individual cases, and provided that it
not elicited pure matto general practi:
or regulation governing the examination
employees or applicants on the basis of gra"
job, or agency.
6. The section prohibiting requirements
disclose personal financial information con
tains technical amendment-. to assure act
only persons with final authority in certao
areas may be subject to disclosure requir.
nients.
'7. For those employees excluded from th
ban on disclosure requirements, a new se
tion (j), provides that they may only 1,
required to disclose items tending to slui
a conflict of interest.
8. Military supervisors of civilian ethnics
sea are included within the prohibitions e
the bill, and violation of the act is made
punishable offense under the Uniform Cod
of Military Justice.
9. A new section 2 has been added to a -
sure that the same prohibitions in sectii
1 on actions of department and agency or'
dais with respect to employees in their d,-
partments and agencies apply alike to officer
of the Civil Service Commission with respe-
to the employees and applicedits with whom
they deal.
10. Section (b) of 8.3779, relating to the
calling or holding of meetings or lectures to
indoctrinate employees, was deleted.
11. Sections (a), (d), and (a) of S. 3779?
sections (b), (c), and (d) of S. 1035?con-
taining prohibitions on requiring attendance
at outside meetings, reports on personal ac-
tivities and 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 criminal penalties were reduced
from a maximum of $500 and 6 months' im-
prisonment to 8300 and 30 days,
13. Section (h) of S.3779 prohibiting re-
quirements to support candidates, programs.
or policies of any political party was re-
vised 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-Atieer
ture.
QUESTIONS ON RACE, RELIGION, AND
NATIONAL ORTGIN
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 employ- ?
ees through the systematic use Of question-
naires 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 Commis-
sion directive stated that disclosure of such
information was voluntary, complaints show
that employees and supervisors generally felt
it to be mandatory. Administrative efforts to
obtain compliance included in some instances
harassment, threats, and intimidation. Com-
plaints in different agencies showed that em-
ployes who did not comply received airmail
letters at their homes with new forms; or
their names were placed on administrative
lists for "followup" procedures, arid super-
visors 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 condentiality will be observed.
"In addition to that, there have been a
large number of complaints from al 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 de-
termining whether that program is being car-
ried out."
The hearine 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
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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 col-
lecting information about race has favored
the head count wherever possible. Although
the poli67 is presently under review, the sub-
committee finds merit in the statement that:
"The collection and dissemination of in-
formation about race creates a conflict
among severally equally important civil lib-
erties: 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 ap-
proves them all. But at this time In human
history, when the principle of equality and
nondiscrimination must be vigorously de-
fended, it is necessary that the union oppose
collection and dissemination of information
regarding rate, except only where rigorous
justification is shown for such action. Where
such collection and dissemination is shown
to be justified, the gathering of information
should be kept to the most limited form,
wherever possible by use of the head count
method, and the confidential nature of orig-
inal records should be protected as far as
possible."
Former Civil Service Commission Chair-
man Robert Ramspeck told the subcommit-
tee:
"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 discrim-
ination for or against minority persons in
Federal 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
Inaccurate data.
Mr. Macy informed the subcommittee:
"In the State of Hawaii the entire pro-
gram was cut out because it had not been
done there before, and it was inadvertently
included 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 we were 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 indi-
vidual or his forebears should have nothing
to do with his ability or qualifications to do
a job."
Section 1(a) of the bill was included to as-
sure 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 reaffirm
the intent of Congress that a person's re-
ligion, race, and national or ethnic origin
or that of his forebears have nothing to do
with his ability or qualification to perform
the requisite duties of a Federal position, 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 drld 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 "return it
immediately." He wrote: "I personally 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 indlivdual's right to silence con-
cerning his religious convictions and to re-
frain from an indication of his religious
beliefs.
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 tremen-
dously, either that the form can only be
signed and they cannot accept a form in
which "so help me God" is struck out, be-
cause 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
investigator asked a young man this ques-
tion: 'For the purposes of administering the
oath, do you believe in God?"
"It it to be hoped that the provisions of
this bill would bar practices of that kind.
The law should be clear at this time. Title
I, United States Code, section 1 has a num-
ber of rules of construction, one of which
says that wherever the word 'oath' appears,
that includes 'affirmation,' and wherever the
word 'swear' appears, that includes 'affirm.'
"This issue comes up sometimes when
clerks will ask, 'Why do you want to affirm?
Do you belong to a religious group that
requires 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 Torasco 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
prohibition against inquiries into race, re-
ligion, or national origin would hinder in-
vestigation of discrimination complaints. In
effect, however, it is expected to aid rather
than hinder in this area of the law, by de-
creasing the opportunities for discrimination
Initially. It does not hinder acquisition of
the information elsewhere; nor does it pre-
vent a person from volunteering the informa-
tion if he wishes to supply it in filing a
complaint or in the course of an investiga-
tion.
CONTROL OP EMPLOYEE OPINIONS, OUTSIDE
ACTIVITIES
Reports have come to the subcommittee
of infringements and threatened infringe-
ments on first amendment freedoms of em-
ployees: freedom to think for themselves
free of Governinent indoctrination; freedom
to choose their outside civic, social, and po-
litical activities as citizens free of official
guidance; or even freedom to refuse to par-
ticipate at all without reporting to super-
visors.
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 "indiscreet 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
selected business establishments and coercive
campaigns for charitable donations are
among the most noteworthy abuses of Fed-
eral employees' right to personal freedom."
An example of improper on-the-job in-
doctrination of employees about sociological
and political matters was cited in his testi-
mony by John Griner, president of the AFL-
CIO affiliated American Federation of Gov-
ernment Employees:
"One instance of disregard of individual
rights of employees as well as responsibility
to the taxpayers, which has come to my at-
tention, seems to illustrate the objectives
of subsections (b) , (c), and (d), of section 1
of the Ervin bill. It happened at a large field
installation under the Department of De-
fense.
"The office chief called meetings of differ-
ent groups of employees throughout the
day * * *. A recording was played while em-
ployees listened about 30 minutes. It was
supposedly a speech made at a university,
which went deeply into the importance of
integration of the races in this country. There
Was discussion of the United Nations?what
a great thing it was?and how there never
could be another world war. The person who
reported this incident made this comment:
"Think of the taxpayers' money used that day
to hear that record." I think that speaks for
itself."
Other witnesses were in agreement with
Mr. Griner's view on the need for protecting
employees now and in the future from any
form of indoctrination on issues unrelated
to their work. The issue was defined at hear-
ings on S. 3779 in the following colloquy
between the subcommittee chairman and
Mr. Griner:
"If they are permitted to hold sessions such
as this on Government time and at Govern-
ment expense, they might then also hold
sessions as to whether or not we should be
involved in the Vietnam war or whether we
should not be, whether we should pull out
or whether we should stay, and I think it
could go to any extreme under these condi-
tions.
"Of course, we are concerned with it, yes.
But that is not a matter for the daily routine
of work.
"Senator ERVIN. Can you think of anything
which has more direful implications for a
free America than a practice by which a
government would attempt to indoctrinate
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:tee man with respect to a particular view on
env subject other than the proper perform-
,. nee of his work?
-Mr. GRINER. I think if we atempted to do
eeet we would be violating the individual's
e titutional rights.
-.Senator Kama. Is there any reason whae-
eeer why a Federal civil service employee
Would not have the same right to have his
ireedom of thought on all things under the
on outside of the restricted sphere of the
proper performance of his work than any
teller American enjoys?
"Mr. GRINER. No, sir."
With one complaint of attempted incloc-
,: +netion of employees at a Federal installs-
.n, a civil servant enclosed a memorandum
?Veen from a bulletin board stating the time,
place, and date of a lecture by a sociology
professor on the subject of the importance
or racial integration. Attendance was to be
aaluntary but the notice stated that a record
would be made of those attending or not
tending.
Concerning such a practice, one witness
commented: "If I had been a Federal em-
ployee and I cared anything about my job,
would have been at that lecture."
Employees of an installation in Pennsyl-
vania complained of requirements to attend
Olin lectures on issues of the cold war.
Witnesses agreed that taking notice of at-
eendance at such meetings constituted a
torm of coercion to attend. Section 1(b) will
eliminate such intimidation. It leaves un-
affected existing authority to use any ap-
propriate means, including publicity, to pro-
vide employees information about meetings
concerning matters such as charity drives
1u-id bond-selling campaigns.
Section (c) protects a basic constitutional
right of the individual employee to be free
of official pressure on him to engage in any
eivie or political activity or undertaking
which might involve him as a private citi-
o,en, but which has no relation to his Federal
employment. It preserves his freedom of
thought and expression, including his right
Pi keep silent, or to remain inactive.
This section will place a statutory bar
against the recurrence of employee com-
plaints such as the following received by a
Member of the Senate:
"Dear Senator-: On -, 1966; a group
of Treasury Department administrators were
called to Miami for a conference led by -,
Treasury Personnel Officer, with regard to
new revisions in chapter 713 of the Treasury
Personnel Manual."
Over the years the Treasury Department
771SS placed special emphasis on the hiring of
Negroes under the equal employment oppor-
-amity program, and considerable progress in
-hat regard has been made. However, the
emphasis of the present conferences was that
our efforts in the field of equal employment
opportunity have not been sufficient. Under
,he leadership of President Johnson and
aased on his strong statement with regard
eo the need for direct action to cure the
basic causes leading to discrimination, the
Treasury Department has now issued specific
nistructions requiring all supervisors and
;me managers to become actively and aggres-
eively involved in the total civil rights prob-
eon_
The requirements laid down by chapter
713 and its appendix include participation in
:such groups as the Urban League, NAACP, et
cetera (these are named specifically) and in-
volvement in the total community action
program, including open housing, Integra-
eon of schools, et cetera.
The policies laid down -in this regulation,
as verbally explained by the Treasury rep-
resentatives at the conference, go far beyond
any concept of employee personnel responsi-
bility previously expressed. In essence, this
regulation requiring every Treasury manager
or supervisor to become a social worker, both
during his official hours and on his own
time, This was only tangentially referred, :
in the regulation and its appendages, but w
brought out forcefully in verbal statemen; -
by Mr. --- and --. Frankly, thie is te,
mendously disturbing to me and to many, ;
the other persons With whom I have discus* ;
the matter. We do not deny the need ef
strong action in the field of eivil rights. 14:
we do sincerely question the authority of ee -
Government to lay out requirements to -
met on our own time which are repugnant
our personal beliefs and desires.
The question was asked as to what dist
ciplinary measures would be taken again _
individuals declining to participate in tht
community action programs. The reply gc
given by the equal employment officer. the,
such refusal would constitute an undesireta
work attitude bordering on insubordinatio ;
and should at the very least be reflected'
the annual efficiency rating of the Oil -
ployee.
The principles expressed in these regui.
times and in this conference strike me ;
being of highly dangerous potential. If ia
who have no connection with welfare or sod:
programs, can be required to take time fru_
our full-time responsibilities in our partite -
tar agencies and from the hours normall
reserved for our own refreshment and recre ;
tion to work toward integration of whit*
neighborhoods, integration of schools by ail
ficial means, and to train Negroes who ha
not availed themselves of the public Bohai( ; ?
ing available, then it would seem quite pow -
ble that under other leadership, we could, a a
required to perform other actions whie
would actually be detrimental to the interee-
of our Nation.
Testifying on the issue of reporting on -
side activities, the American Civil Liberte 3
Union representative oommented:
"To the extent that individuals are at -
prehensive they are going to have to, 't
sortie future time, tell the Government abO t
what organizations they have belonged ;
or been associated with, that is, going to -
hibit them in their willingness to explt , a
all kinds of ideas, their willingness to he et
speakers, their willingness to do all kinds f
things. That has almost as deadening an *a, -
feet on free speech in a democracy as if ti
opportunities were actually cut off.
"The feeling of inhibition which the
kinds of questions cause is as dangerous, I
seems to me. as if the Government We, a
making actual edicts."
Witnesses gave other examples of Ina -
sion of employees' private lives which weal I
be halted by passage of the bill.
In the southwest a division chief di,
patched a buck slip to his group supervise s
demanding: "the names * * ? of en -
ployees * * * who are participating in eT y
activities including such things as: PTA
integrated schools, sports activities wilt;
are inter-social, and such things as Gee
Books discussion groups which have Ii-
teg,rated memberships."
a
In a Washington office of the Departme t
of Defense, a branch chief by telephen
asked supervisors to obtain from employe, 3
the names of any organizations they to-
longed to. The purpose apparently was -
obtain invitations for Federal Goverrimte 1,
officials to speak before such organization .
? a *
Reports have come to the subcommitt
that the Federal Maritime Commission, ph -
suant to civil service regulations, request; I
employees to participate in community -
tivities to improve the employability of ni -
nority groups, and to report to the chae -
man any outside activities.
? ? a *
In addition to such directives, many ott
Instances involving this type of restrict*,
have come to the attention of the sulacen
mittee over a period 01 years. For example,
some agencies have either prohibited flatly,
or required employees to report, all con-
tacts, social or otherwise, with Members of
Congress or congressional staff members. In
many eases reported to the subcommittee,
officials have taken reprisals against em-
ployees who communicated with their Con-
gressmen and have isseed directives threat-
ening such action,
a a a
The Civil Service Commission on its Form
85 for nonsensitive positions requires an in-
dividual to list: "Organizations with whieh
affiliated (past and present) other than re-
ligious or political organizations or those
with religious or political affiliations (if
none, so state; ."
PRIVACY INVASIONS IN INTERVIEWS, INTER-
ROGATIONS, AND PERSONALITY TESTS
Although it does not outlaw all of the un-
warranted personal prying to which employ-
ees and applicants are now subjected, section
1(e) of the reported hill will prohibit the
more serious invasions of personal privacy
reported. The subcommittee believes it will
also result in limitations beyond its specific
prohibitions by encouraging administrative
adherence to the principles it reflects.
It Will halt mass programs in which, SS 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 qualifi-
cations and ability to perform a job.
It will also halt individual interrogations
such as that involving an 18-year-old college
sophomore applying for a summer job as
secretary at a Federal department,
In the course of an interview with a de-
partment investigator, she was asked wide-
ranging personal questions. For instance, re-
garding 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 force 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 results in an appearance
of self-incrlmination. 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 De-
partment.
"I called and was denied any opportunity
to review what had been recorded in my
daughter'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 en-
tire matter Was handled as if applicants for
State Department employment must subject
therriselevs to the personal and intimate
questions and abdicate all claims to personal
rights and privileges.
"As a result of this improper intrusion into
my daughters privacy which caused all great
mental anguish, I had her application for
employment withdrawn from the State De-
partment. 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 meth-
ods 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
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case, the Department indicated that this was
not a unique cage, because it used a "uniform
policy in handling the applications of sum-
mer employees as followed with all other
applicant categories." It stated that its pro-
cedure 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 will be
dealing with sensitive, classified material."
Its only other comment on the case was to
assure that "any information developed dur-
ing 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 guidelines governing
such investigations and interviews, the sub-
cOmmittee 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 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.
/ 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 peo-
ple).
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
support the need for such statutory prohibi-
tions on the use of tests.
In another 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
inordinate 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 board "fitness for duty"
standard' now generally applied by psy-
chiatrists and physicians in the interviews
and testing which an employee can be re-
quested 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
affording 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,
practices or concerning his attitude or con-
duct with respect to sexual matters. While
this section does not eliminate the use of
so-called lie detectors by Government, it
assures that where such devices are used
for these purposes it will be only in limited
areas.
John McCart, 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
considerations of human dignity in that they
involve the invasion of privacy, self-incrimi-
nation, and the concept of guilt until proven
innocent."
Congressional investiagtion.2 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 appli-
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 in-
terviewer seemed pleased and he told me
that they could always find a place for
someone with my type of degree.
"About one 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 machine
worked, etc. He ran through some of the
questions before he attached the wires to
me. Some of the questions I can remember
are?
"'When was the first time you had sex-
ual relations with a woman?
"'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 as the first time you had inter-
course with your wife?
"'Did you have intercourse with her be-
fore you were married? How many times?'"
"He also asked questions about my par-
ents, Communist activities, etc. I remember
that I thought this thing was .pretty out-
rageous, 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 get away with asking a girl those
kind of questions.
"When I was finished, I felt as though I
had been in a 15 round championship box-
ing 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 tha Government, espe-
cially 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 secu-
rity missions. Surely, the financial, scientific,
and investigative resources of the Federal
2 Hearings and reports on the use of poly-
graphs as "lie detectors," by the Federal Gov-
ernment before a Subcommittee of the House
Committee on Government Operations, April
1964 through 1966.
S 7361
Government are sufficient to determine
whether a person is a security risk, without
strapping an applicant to a machine and
subjecting him to salacious questioning. The
Federal Bureau of Investigation does not use
personality tests or polygraphs on applicants
for employment. I fail to see why the Na-
tional Security Agency finds them so
fascinating."
COERCION TO BUY BONDS AND CONTRIBUTE TO
CAUSES
The hearing record and subcommittee
complaint files amply document the need for
statutory protections against all forms of
coercion of employees to buy bonds 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
coercion. As the subcommittee chairman
explained:
"It certainly seems 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 par-
ticipate or decide whether he will participate
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
going 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
promotion for employees who do not par-
ticipate to, the extent supervisors wish. The
hearing record contains examples of docu-
mented cases of reprisals, many of which
have been investigated at the subcommittee's
request and confirmed by the agency in-
volved. It is apparnt that policy statements
and administrative rules are not sufficient to
protect individuals from such coercion.
The president of the United Federation of
Postal Clerks informed the subcommittee:
"Section 1, paragraph (I) of S. 3779 is par-
ticularly important to all Federal employees
and certainly to our postal clerks. The ex-
treme arm-twistirig 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
future time in the Government-service.
"Our union received complaints from all
over the country where low paid postal clerks,
most having the almost impossible problem
of trying to support a family and exist on
substandard wages, were practically being
ordered to sign up for purchase of U.S. sav-
ings bonds, or else. The patriotism of our
postal employees cannot be challenged. I re-
cently was advised that almost 75 percent of
postal workers are veterans of the Armed
Forces and have proven their loyalty and
patriotism to this great country of ours in
the battlefield in many wars. Yet, some
postmasters questioned this patriotism and
loyalty if any employee could not afford to
purchase a savings bond during the drive."
The president of the National Association
of Government Employees testified:
"We are aware of instances wherein em-
ployees were told that if they failed to par-
ticipate in the bond program they would
be frozen in their position without promo-
tional opportunities.
"In another agency the names of indi-
viduals who did not participate were posted
for all to see. We have been made aware
of this situation for some years and we know
that Congress has been advised of the many
instances and injustices Federal employees
faced concerning their refusal or inability
to purchase bonds.
"Certainly, the Government, which has
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thousands of public relations men in its
agencies and departments, should be capable
of promoting a bond program that does not
include the sledge-hammer approach."
Some concern has been expressed by offi-
cials of the United Community Funds and
Councils of America, the American Heart As-
sociation Inc., and other charitable organi-
zations, that the bill would hamper their
campaigns in Federal agencies.
For this reason, the bill contains a proviso
to express the intent of the sponsors that
officials may still schedule meetings and take
any appropriate action to publicize cam-
paigns and to afford employees the oppor-
tunity to invest or donate their money vol-
iintarily. It is felt that this section leaves
a wide scope for reasonable action in pro-
moting bond selling and charity drives.
The bill will prohibit such practices as
were reported to the subcommittee in the
following complaints:
"We have not yet sold our former home
and cannot afford to buy bonds while we
have both mortgage payments and rental
payments to meet. Yet I have been forced to
buy bonds, as I was told the policy at this
base is, "Buy bonds or Bye Bye."
"In short, after moving 1,700 miles for the
good of the Government. I was told I would
be fired if I didn't invest my money as my
employer directed. I cannot afford to buy
bonds, but I can't afford to be fired even
more.
?
"Not only were we forced to buy bonds, but
our superiors stood by the time clock with
the blanks for the United Givers Fund, and
refused to let us leave until we signed up.
r am afraid to sign my name, but I am em-
ployed at * ? *."
?
A representative of the 14th District De-
partment of the American Federation of
Government Employees, Lodge 421 reported:
"The case of a GS-13 professional em-
ployee who has had the misfortune this past
year of underwriting the expenses incurred by
the last illness and death of both his mother
and father just prior to this recent bond
drive. This employee had been unofficially
informed by his supervisor that he had been
selected for a then existing 05-14 vacancy.
When it became known that he was declining
to increase his participation in the savings
bond drive by increasing his payroll deduc-
thin for that purpose, he was informed that
he might as well, in effect, kiss that grade 14
goodbye'
DISCLOSURE OF ASSt,tS, Dears, AND PROPERTY
Sections (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
linances. debts, or ownership of property.
The subcommittee believes that the con-
Met-of-interest statutes, and the many other
laws governing conduct of employees, to-
gether with appropriate implementing re-
gulations, are sufficient to protect the Gov-
ernment from dishonest employees. More
nealous informational activities on the part
of management 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
ilealing with fraudulent employment,
conflicts of interest, etc. The invasion of
erivacy of the individual employee is serious
enough. but she invasion of the privacy of
nily. relatives and children of the em-
? ,iloyee is an outrage against a free society.
-This forced financial disclosure has caused
,eirious moral problems and feelings by em-
eloyees that the agencies distrust their integ-
rity. We do not doubt that if every employee
sae required to file an absolutely honest
inancial disclosure, that a few, though in-
significant number of conflict-of-MUT( es
cases may result. However, the discovery if
the few legal infractions could In no e
justify the damaging effects of forced r
closures of a private nature. Further, ii
our opinion that those who are intent a
engaging in activities which result in a ce
filet of interest Would hardly supply that
formation on a questionnaire or iinansii
statement. Many employees have indiete ci
that rather than subject their families to e y
such unwarranted invasion of their right o
privacy, that they are seriously consida g
other employment outside of Governmes "
The bill will reduce to reasonable p, ;-
portions such inquiries as the follow, ,g
questionnaire, which many thousands if
employees have periodically been requi it
to submit.
(Questionnaire follows :>
CONFIDENTIAL STATEMENT OF EMPLOY
FINANCIAL INTERESTS
(For use by regular Government employe ?)
Name, (Last, First, Initial)
Title of position
Date of appointment in present posit
Organization location (Operating age/ v,
bureau, division)
Part I. Etnployment and financial inter( ,s
List the names of all corporations, cc'i-
panies, firms, or other business enterpri
partnerships; nonprofit organizations, e ci
educational, or other institutions: (a) a
which you are connected as an emplo), c,
officer, owner, director, member, trus e.
partner, adviser, or consultant; or (b) re
which you have any continuing finaleii
-
interests, through a pension or retirems it
plan, shared income, or other arrangemere
a result of any current or prior ernploym cc
or business or professional association; a
(c) in which you have any financial into.: ;I)
through the ownership of stock, stock optir
bonds, securities or other arrangements !-
eluding trusts. If none, write None.
Name and kind or organization (use Par 1
designations where applicable)
Address
Position in organization (Use Part 1 ,
designations, if applicable)
Nature of financial interest, e.g., sto,
'prior income (Use Part 1(b) & (c) desige
bons if applicable)
Part II. Creditors
List the names of your creditors or
than those to whom you may be indebtee
reason of a mortgage on property which
occupy as a personal resident or to whom u
may be indebted for current and ordir y
household and living expenses such as hot ie
hold furnishings, automobile, educat
vacation, and similar expenses. If n( e,
write None.
Name and address of creditor
Character of indebtedness, e.g., persc
loan, note, security
Part III. Interests in real property
List your interest in real property or rir
in lands, other than property which .0
occupy as personal residence. If none, Wi ?
None.
Nature of interest, e.g., ownership,
gage, lien, investment trust
Type of property. e.g., residence, he) 1,
apartment, undeveloped land..
Address (if rural, give RFD or county i(1.
Ctate)
Part IV. Information requested of at
persons
If any information is to he supplied
other persons, e.g., trustee, attorney,
countant, relative, please indicate the name
and address of such persons, the date upon
which you requested that the information be
supplied, 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 in-
structions,)
I certify that the statements I have made
are true, complete, and correct to :he best of
my aktneowledge and belief.
Date
Signature
The vagueness of the standards .ror 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
asking employees to list "all assets, or every-
thing you and your ' immediate family own,
Including (este 'acquired and cost or fair mar-
ket 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
effects 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 (3) of the bill.
"If the conflict-of-interest questionnaire
is of doubtful value in preventing conflict
of interest, as we believe, we can only con-
clude that it does not meet the test of essen-
tiality and that it should be prc)scribed as
an unwarranted invasion of employee pri-
vacy. Such value as it may have in focusing
employee attention upon the problem of con-
flict of interest and bringing to light honest
oversights that may lead to conflict of in-
terest could surely be achieved by drawing
attention to the 26 or more laws pertaining
to conflict of interest or by mere zealous
information ectivities 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 personnelpractices. It is almost
inevitable that this confidential information
cannot remain confidential. Typically, the
financial questionnaire is filed with an em-
ployee's immediate supervisor. The net worth
statements ultimately go into inspection,
but they pais through she hands or local per-
sonnel administrators. We have received a
great numbez of disturbing reports?as have
you?that tins information about employees'
private affairs is being used for improper
purposes, such as enforced retirement and
the like."
Inadequaides in agency procedures for ob-
taining such information from employees
and for reviewing and storing it, are discussed
in the Subcommittee report for the Beth
Congress, 2d Session. Widely disparate atti-
tudes 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: I am writing to ap-
plaud the seenct you have taken en the new
requirement that Federal employees in cer-
tain grades and categories disclose their
financial holdings to their immediate su-
perior. Having been a civil service employee
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for 26 years, and advanced from GS-4 to
GS-15, and been cleared for top secret during
World War II, and because I currently hold a
position that involves the disposition of
hundreds of thousands of the taxpayers'
money, it is my conviction that my morality
and trustworthiness are already a matter of
record in the files 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 face
that it required 6 hours of after-hodrs 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 repre-
sent. 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,
?I
DEAR SENATOR ERVIN: I am a GS-12 career
employee with over 15 years service.
The highest moral and ethical conduct has
been my goal in each of my positions of
employment and I have found this to be
true of a vast majority of my fellow work-
ers. 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 In-
terest." As our office has no programs in-
dividuals could have a financial interest in
and especially 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 PHA
mortgage or any other real property and have
no outside employment, hence have noth-
ing to hide by filing a blank form. Few
Government workers can afford much real
property. The principal 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 effective-
ness. 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 that 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 ed-
ucation 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 hot on personal
politics. At this point I certainly regret my
decision 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 `Caro-
lina.
I am a veteran of two wars and have orders
to a third war as a ready reservist. And I
know why I serve in these wars: that is to
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 suscep-
tible 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 security
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,
In 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 1966 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-
employment insurance, welfare payments, or
from any other 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.)
(For 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, wel-
fare payments; or from any other source not
already entered?"
RIGHT TO COUNSEL
Section 1(k) of the bill guarantees to
Federal workers the opportunity of asking
the presence of legal counsel, of a friend or
other person when undergoing an official in-
terrogation or investigation that could lead
to the loss of their jobs or to disciplinary
action.
S 7363
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 concern-
ing the right to counsel for employees fac-
ing disciplinary investigations or possible
loss of security clearances tantamount to
loss of employment. The Civil Service Com-
mission regulations are silent on this cri-
tical issue. In the absence of any Commis-
sion initiative or standard, therefore, the
employing agencies are pursuing widely
dis-
parate practices. To judge from the question-
naires and other evidence before the sub-
committee, 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 stand-
ard, 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
Miranda 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 decline to
do the same for coworkers threatened with
the loss of their livelihoods for noncriminal
reasons. In the subcommittee's view, this
discrimination in favor of the criminal sus-
pect is both bad personnel policy 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 by
governmental action.
While the courts have as yet had no occa-
sion to articulate a specific right to counsel
in the employment relationship, there can
obviously be no doubt that the right to
counsel is of such a fundamental character
that it is among the essential ingredients of
due process. What is at stake for an employee
in a discharge proceeding?often including
personal humiliation, obloquy and penury?
is just as serious as that involved in a
criminal trial. This is not to suggest that all
the incidents of our civilized standard of a
fair trial can or should be imported into
Federal discharge proceedings. But if we are
to have fair play for Federal employees, the
right of counsel is a sine qua non. It is of a
piece with the highest traditions, the fairest
laws, and the soundest policy that this coun-.
try has produced. And, in the judgment of
this subcommittee, the clear affirmation of
this basic right is very long overdue.
The need for such protection was con-
firmed at the hearings by all representatives
of Government employee organizations and
unions.
The president of the National Association
of Letter Carriers testified:
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"It is a practice in the postal inspection
service, when an employee Is called in for
questioning by the Inspectors on a strictly
poets.' matter that does not involve a felony.
U. deny the right of counsel. The inspectors
Interrogate the employee at length and, at
the completion of the interrogation, one of
tne Inspectors writes out a statement and
pressures the employee to sign it before he
leaves the room. We have frequently asked
the postal inspection service to permit these
employees to have counsel present at the
iine of the interrogation. The right for such
eteansel has been denied in all except a few
eases. If the employee is charged with a
felony, then, of course, the law takes over
end the right for counsel is clearly estab-
tailed but in other investigations and inter-
teseations no counsel is permitted."
Several agencies contend that right to
counsel is now granted in formal adverse ac-
tion proceedings and that appeals procedures
inske this section unnecessary for informal
(pies:atoning. Testimony and complaints from
employees indicate that this machinery does
not effectively secure the opportunity of the
employee to defend biniself early enough in
the investigation to allow a meaningful
t et Ise.
The predicament of postal employees as
iieeeribed at the hearings reflects the situa-
tion in other agencies as reported in many
individual cases sent to the subcommittee.
While it is undoubtedly true that in some
:Ample questioning, counsel may not be nec-
essary, in many matters where interrogation
will result in disciplinary action, failure to
have counsel at the first level reacts against
the employee all the way up through the
appeal and review. In the case of a postal
employee, the subcommittee was told?
The first level is at the working fore-
mean's level. He is the author of the charges;
then the case proceeds to the postmaster.
who appointed the foreman and, if the in-
Cividual is found guilty of the charge at
the first level, it is almost inevitable that
this position will be supported on the sec-
ond level. The third level is the regional
leyel. and the policy there is usually that
et supporting the local postmaster. A dis-
interested party is never reached. The fourth
level is the Appeals Board, composed of of-
ficials appointed by the Postmaster General.
In some cases, the region will overrule the
jastmaster, but certainly the individual does
not have what one could style an impartial
appeals procedure."
Employees charged with no crime have
been subjected to intensive interrogations
lig Defense Department investigators who
ark intimate questions, make sweeping al-
legations, and threaten dire consequences
tiniess consent Is given to polygraph tests.
ianployees have been ordered to confess
Olally or to write and sign statements: Such
IP l,erviews have been conducted after denial
ti the employee's request for presence of
opervisor, counsel, or friend, and in several
instances the interrogations have resulted
in revocation of a security clearance, or de-
teal of access to classified information by
iransfer or reassignment, with the resulting
ices of promotion opportunities.
Witnesses testified that employees have
recourse against the consequences of for-
meal charges based on information and state-
ments acquired during a preliminary inves-
tigation. This renders meaningless the
aatinction urged by the Civil Service
Commission between formal and informal
presseedings.
EXCEPTIONS
The act, under section 9, does not apply
it. the Federal Bureau of Investigation. Fur-
thermore, section 6 provides that nothing in
the act will prohibit an official of the Central
intelligence Agency and the National Secu-
11 ty Agency from requesting any employee or
applicant to take a polygraph test or a psy-
chological test, or to provide a personal fi-
nancial statement designed to elicit the per
sonal information protected under subset
tions 1 (e), (f), (I), and (j). In such case
the Director of the agency or his d,esigeta
must make a personal finding with regard t,
each individual to be tested or examine
that such test or information is required t
protect the national security.
An. exception to the rigta-to-counsel see
tion has been provided to limit this right fee
employees in the Central Intelligence Ageria
and the National Security Agency to a per
son who serves in the same agency or
counsel cleared by the agency for access t
the information involved. Obviously, it is ex
pected that the employee's right to be iv
companied by the person of his choice WV'
not be denied unless that person's access t
the information for the purpose of the cao
is clearly inconsistent with the national Se
eurity. Other committee language in S.
recognizes problems unique to these ts
ageneies. For instance, section 7 requires el
haustion of remedies by employees of tit
Central Intelligence Agency and the NE
'aortal Security Agency and states that tit
act does not affect whatever existing state
tory authority these agencies now posses
to terminate employment. Section 8 is de.
signed to assure that nothing in the act
construed to affect negatively any existira,
statutory or executive authority of the Di
-rectors of the Central Intelligence Agene
and National Security Agency to protet
their information in cases involving then
employees. Consequently, procedures coin
mended to the subcommittee by the Directe
of the Central Intelligence Agency are spelle
out for asserting that authority in certat:
proceedings arising under the act. Other-
committee amendments to S. 1035, as detalle
earlier, were adopted to meet administrativ
requirements of the Federal security pre
gram and the intelligence community as wet
as the management needs of the executit
branch.
ENFORCEMENT
Enforcement of the rights guaranteed if
sections 1 and 2 of the bill is lodged in tb
administrative and civil remedies and sane
tions of sections 3, 4, and 5. Crucial to en-
forcement of the act is the creation of an
independent Board of Employee Rights t,
determine the need for disciplinary evotio,
against civilian and military offenders undt
the act and to provide relief from violation_
Testimony at the hearing as well as invest
gation of complaints have demonstrated the
iii the area of employee rights, a right is onl
as secure as its enforcement. There is over
whelming evidence that employees have here
tofore frequently lacked appropriate reme
dies either in the courts or the Civil Servie
Commission for pursuing rights which belon,
to them as citizens.
Under the remedies afforded by sections a
4, and 5 of the bill, an employee who believe
his rights are violated under the act has set
erai courses of action:
(1) He may pursue a remedy through tie
agency procedures established to enforce tb
act but the fact that he does not choose t
avail himself of these does not preclude exer
cise of his right to seek other remedies.
(2) He may register his complaint wit'
the Board op Employee Rights and obtain
hearing. If he loses there, he may appeal t
the district court, which has the power t-
examine the record as a whole and to affirm
modify, or set aside any determination te
order, or to require the Board to take an,
action it was authorized to take under tte
act.
(3) He may. instead of going directly t,
the Board, institute a civil action in Fedess:
district court to prevent the threatened vie,
lation, or obtain complete redress against the
consequences of the violation.
He does not need to exhaust any adminie
trative remedies but if he elects to pursue ha
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 privilege 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 EM MOYER RIGIITS
As a result oi hearings on S. 3779, the sec-
tion creating a Board on Employee Rights
was added to the bill for introdnetion as
S. 1035.
Employees have complained that admin-
istrative grievance preeedures have often
proved ineffective because they are cumber-
some, time-consuming, end weighted on the
aide of management. Not only do those who
break the rules go unpimished many times,
but the fearful tenor of letters and telephone
calls from throughout the country indicate
that employees fear reprisals for noncompli-
ance with improper requests or for filing of
complaints arid grievances. Oral and written
directives of warning to this effect have been
verified by the subcommittee. Section 1(e)
of the bill, therefore, prevents reprisals for
exercise of rights granted under the act and
in such event accords the individual cause
for complaint before the Board or the court.
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 Em-
ployees commend 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 circumvented
by Federal personnel management As a mat-
ter of fact, we believe, the reason employees'
rights have been eroded so rapidly and so
devastatingly in the last few years is the
absence of efficient, expeditious, uniform,
and legislatively well defined procedures of
due process in the executive departments 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 fol-
lows:
"The bill sett 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 to make rulings
on these matters in the first instance. It
would make a ruling on action in a particular
agency or department that is an alleged viola-
tion 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 constitu-
tionality of general policies and practices ini-
tiated 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,
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individual employees and their families
turned to Congress for redress. Opening the
hearings on invasions of privacy, Senator
Ervin stated:
"Never in the history of the Subcommittee
on 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
Indignation 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 be-
yond the resources of Congress and its staff
to repel effectively each individual official
encroachment. 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 execu-
tive branch mechanism by which employees
can lodge their sense of discomfort with
personnel practices in the Federal Govern-
ment and feel that they will get a fair hear-
ing, that they will secure what could be
called 'employment due process.'"
To meet this problem, Professor Westin
proposed an independent board subject to
Judicial review, and with enforcement power
over a broad statutory standard governing
all invasion of privacy. Although it is con-
tinuing to study this proposal, the subcom-
mittee has temporarily rejected this ap-
proach in the interest of achieving immedi-
ate enforcement of the act and providing
administrative remedies for its violation. For
this reason it supports the creation of a
limited Board on Employee Rights.
Perhaps one of the most important sec-
tions of the bill, if not the most important
section, according to the United Federation
of Postal Clerks, is the provision establish-
ing 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 suggestions 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
possibly be enacted into law. It defines the
right of employees to challenge violations of
the proposed act; 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 judicial review for
an aggrieved party, and finally provides 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 flaunt-
ing of administrative guidelines and prohibi-
tions. It was for this reason that S. 3779 of
the 89th Congress and S. 1035, as introduced,
contained criminal penalties for offend-
ers and afforded broad civil remedies and
penalties.
Reporting on the experiences of the Amer-
ican 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 pe-
riod of time I have worked here in Washing-
ton, / have never been informed of any dis-
ciplinary action taken against any inves-
tigator for asking improper questions, for en-
gaging in improper investigative techniques,
for barring counsel when a person had a
right to have counsel, or for a violation 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. j
would suggest that the bill also encompass
provision for disciplinary action that would
be taken against Federal employees who vio-
late 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 pun-
ishment, and felt they would be more effec-
tive 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, a subcom-
mittee amendment deleted the criminal
penalties in section 4 from the bill as
reported.3
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," Professor
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 interests 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 I
Section 1(a)
Section 1(a) makes it unlawful for a Fed-
eral official of any department or agency 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 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-
cerning citizenship of such individual if his
citizenship is a statutory condition of his
obtaining or retaining his employment. Nor
does it preclude inquiry of the individual
concerning his national origin or citizenship
or that of his forebears when such inquiry
is thought necessary or advisable in order
to determine suitability for assignmeht to
activities or undertakings related to national
security within the United States or to ac-
tivities or undertakings of any nature out-
side the United States.
This provision is directed at any practice
which places the employee or applicant un-
der compulsion to reveal such information
as a condition of the employment relation.
It is intended to implement the concept un-
In the 89th Congress, S. 1035.
derlying the Federal merit system by which
a person's race, religion, or national origin
have no bearing on his right to be considered
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 I (b)
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
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 U.S. Government, or by any person
acting or purporting to act under his author-
ity, or by any outside parties or organizations
to advise, instruct, or indoctrinate any
civilian employee of the United States serv-
ing 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 development 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 asso-
ciation.
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 prac-
tices and policies which in effect require at-
tendance at such functions, including official
lists of those attending or not attending; its
purpose is to prohibit threats, direct or im-
plied, written or oral, or official retaliation
for nonattendance.
This section does not affect existing au-
thority for providing information designed
to promote the health and safety of employ-
ees. Nor dOes it affect existing authority to
call meetings for the purpose of publicizing
and giving notice of activities or service,
sponsored by the department or agency, or
campaigns such as charitable fund campaigns
and savings bond drives.
Section 1(c)
Section 1(c) makes it unlawful for any
officer of any executive department or agency
or for any person acting or purporting to act
under his authority, to require or request
or to attempt to require or request any civil-
ian employee serving in the department or
agency to participate in any way in any ac-
tivities or undertakings unless they are re-
lated to the performance of official duties to
which he is or may be assigned in the depart-
ment or agency or to the development of
skills, knowledge, or abilities which qualify
him for the performance of such duties.
This section is directed against official
practices, requests, or orders that an em-
ployee take part in any civic function, politi-
cal program, or community endeavor, or
other activity which he might enjoy as a pri-
vate citizen, but which is unrelated to his
employment. It does not affect any existing
authority to use appropriate techniques for
publicizing existence of community programs
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such as blood-donation drives, or agency
programs, benefits or services, and for afford-
ing opportunity for employee participation
.11 he desires.
Section l(d)
.:ioaion 1(d) makes it unlawful ler any
neer of any executive department or agency,
or for any person acting under his authority
to require or request or attempt to require
or request, any civilian employee serving in
the department or agency to make any re-
port of his activities or undertakings unless
they are related to the performance of official
duties or to the development of skills, knowl-
edge, or abilities which qualify him for the
performance of such duties, or (2) unless
there is reason to believe that the employee
is engaged in outside activities or employ-
ment in conflict with his official duties.
This section is a minimum guarantee of
the freedom of an employee to participate
or not to participate in any endeavor or ac-
tivity in his private life as a citizen, free of
compulsion to report to supervisors his action
or his inaction, his involvement or his nonin-
volvement. This section is to assure that in
his private thoughts, actions, and activities
be Is free of intimidation or inhibition as a
result of the employment relation.
The exceptions to the prohibition are not
legislative mandates to require such informa-
tion in those circumstances, but merely pro-
vide, an area of executive discretion for rea-
sonable management purposes and for ob-
servance and enforcement of existing laws
governing employee conduct and conflicts of
I nterest.
Section lie)
Section 1(e) makes it unlawful for any
officer of any executive department or agen-
cy, or any person acting under his authority,
to require or request any civilian employee'
serving in the department or agency, or any
person applying for employment as a civilian
employee to submit to any interrogation or
examination or to take any psychological test
designed to elicit from him any 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.
In accordance with an amendment made
ail;er hearings on S. 3779, a proviso is in-
cluded to assure that nothing contained in
this section shall be construed to prevent a
physician from eliciting such information or
authorizing such test in the diagnosis or
treatment of any civilian employee or ap-
plicant where he feels the information is
necessary to enable him to determine wheth-
er or not the individual is suffering from
mental illness. The bill as introduced limited
this inquiry to psychiatrists, but an amend-
ment extended it to physicians, since the
subcommittee was told that when no psy-
dinatrist is available, it may be necessary for
a general physician to obtain this informa-
tion in determining the presence of mental
illness and the need for further treatment.
This medical determination is to be made
in individual cases and not pursuant to gen-
eral practice or regulation governing the ex-
amination of employees or applicants ac-
eording- to grade, agency, or duties.
Under an amendment to the bill, this lan-
guage is not to be construed to prohibit an
otnelat from advising an employee or appli-
can S of a specific charge of sexual miscon-
duct made against that person and affording
h.im an opportunity to refute the charge.
Vi;Jine providing no authority to request or
demand such information. the section does
prevent an official who has received
.:M.4,i7ges of misconduct which might have a
detrimental effect on the person's employ-
neenr, from obtaining a clarification of the
rr:Itor if the employee wishes to provide it.
tens section would not prohibit all per-
m:nit/Ay tests but merely those questions on
the teats which inquire into the three areas
in Which citizens have a right to keep theft
thoughts to themselves.
It raises the criterion for requiring such
personal information from the general "fit-
ness for duty" test to the need for diais
nosing or treating mental illness. The second
proviso is designed to prohibit mass-testing
programs. The language of this section pro-
vides guidelines for the various personnel
and medical specialists whose practices and
determinations may invade employee per-
sonal privacy and thereby affect the indi-
viduans employment prospects or opportuni-
ties for advancement.
An amendment in section 6 provided an
exception to this prohibition in the case of
the use of such psychological tests by the
Central Intelligence Agency and the Nee
tional Security Agency, only if the Director
of the agency or his designee makes a per-
sonal finding that the information is neces-
sary to protect the national security.
Section 1(f)
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
marriage, or concerning his religious belief
or practices or concerning his attitude or con-
duct 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 Se-
curity Agency, under section 6, are not pro-
hibited from acquiring such information by
polygraph, provided certain conditions are
met.
Section 1(g)
Section 1(g) makes It illegal for an official
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 or undertakings of any 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 thoughts 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 affair*
and political life of his community, State
and Nation. In particular, it protects hint
from commands or requests of his employer
to buy tickets to fundraising functions, or to
attend such functions, to compile position
papers or research material for political pure
poses, or make any other contribution which
constitutes a political act or which placee
him in the position of publicly expressing his
support or nonsupport of a party Or candi-
date. 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 possessions.
Section. 1111)
Section 1(h) makes it illegal for an official'
to coerce or attempt to coerce any civilian
emproyee in the department or agency to in-
vest his earnings In bonds or other govern-
ment obligations or securities, Or to make
donations to any institution or cause. This
section does not prohibit officials from calling
meetings or taking any other appropriate
action to afford employees the opportunity
voluntarily to invest his earnings in bonds or
other Obligations or voluntarily to make
donations to any institution or cause. Ap-
propriate action, in the committee's view,
might include publicity and other forms of
persuasions short of job-related pressures,
threats, intimidation, reprisals of various
types, and "blacklists" circulated through
the employee's office or agency to publicize
his noncompliance.
Section 1(i)
Section 1 (1) makes it illegal for an official
no require or request any civilian employee
in the department or agency to disclose any
stems 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 claims which require expendi-
ture of Federal moneys. Section 6 provides
certain exemptions for two security agencies.
Neither the Department of the Treasury
nor any other executive department or agency
is prohibited under this section from requir-
ing any civilian employee to make such re-
ports as may be necessary or appropriate for
the determination of his liability for taxes,
tariffs, custom duties, or other obligations
imposed by law. This proviso is to assure that
Federal employees may be subject to any re-
porting or disclosure requirements demanded
by any law applicable to all persons in certain
circumstances.
Section 1(j)
Section 1(j) makes it illegal to require or
request any civilian employee exempted from
application of section 3(i) 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 personal or do-
mestic expenditure 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 performance of any of the
official duties to which he is or may be
assigned.
This section is designed to abolish and
prohibit broad general Inquiries which em-
ployees have likened to "fishing expeditions"
and to confine any disclosure requirements
rnposed on an employee to reasonable in-
quiries about job-related financial interests.
This does not preclude, therefore, question..
ng in individual cases where there is reason
.o believe the employee has a conflict of
nterest with his official duties.
Section ilk)
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
;nvestigation for misconduet, to submit to
Interrogation which could lead to discipli-
nary action without the presence of counsel
sr other person of his choice, if he wishes.
This section-is intended to rectify a long-
tending denial of due process by which
kgency investigators and other officials pro-
oibit or discourage presence of counsel or a
iriend. This provision is directed at any in-
'errogation which could lead to loss of job,
nay. security clearance, Or denial of promo-
ton rights.
This right insures to the employee at-the
neeption of the investigation, and the sec-
t on does not require that the employee be
.ccused formally of any wrongdoing before
Lie may request presence of counsel or friend.
The section does not require the agency or
separtment to furnish counsel.
A committee amendment to S. 782 adds a
,scoviso that a civilian employee serving in
she Central Intelligence Agency or the Na-
tonal Security Agency may be accompanied
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only by a person of his choice who serves in
the agency in which the employee serves, or
by counsel who has been approved by the
agency for access to the information involved.
Section 1(1)
Section 1(1) makes it unlawful for a
Federal official of any department or agency
to discharge, discipline, demote, deny pro-
motion, relocate, reassign, or otherwise im-
pair existing terms or conditions of employ-
ment of any employee, or threaten to com-
mit any such acts, because the employee has
refused or failerd to comply with any action
made unlawful by this act or exercised any
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 Servia Commission
or any person acting or purporting to act
under his authority to require or request,
or attempt to require or request, any execu-
tive department or any executive agency of
the U.S. 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.
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? -bo 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 person
seeking to establish civil service status or
eligibility for civilian employment, or any
person applying for employment, or any ci-
vilian employee of the United States serving
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 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.
This section is intended to assure that the
Civil Service Commission shall be subject to
the same prohibitions to which departments
and agencies are subject in sections 1 (e) and
(f). The provisions contained in section 1(e)
are restated here to assure that nothing in
this section is to be construed to prohibit a
physician from acquiring such data to deter-
mine mental illness, or an official from in-
forming an individual of a specific charge of
sexual misconduct and affording him an op-
portunity to refute the charge.
Section 2(c) makes it unlawful for any offi-
cer 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 serving
in any department or agency to take any
polygraph test designed to elicit from him in-
formation concerning his personal relation-
ship with any person connected with him by
blood or marriage, or concerning his religious
beliefs or practices, or concerning his atti-
tude or conduct with respect to sexual mat-
ters.
This section applies the provisions of sec-
tion 1(0 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.
SECT/ON 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 viola-
tion 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
redres? against the consequences of the viola-
tion. 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 of-
ficer or person Is found, or in the District
Court for the District of Columbia.
The court hearing the case shall have
jurisdiction to adjudicate the civil action
without regard to the actuality or amount of
pecuniary injury done or threatened. More-
over, the sukt may be maintained without
regard to whether or not the aggrieved party
has exhausted available administrative
remedies. If the individual complainant has
pursued his relief through administrative
remedies established for enforcement of the
act and has obtained complete protection
against threatened violations or complete re-
dress for violations, this relief may be pleaded
in bar of the suit. The court is empowered to
provide whatever broad equitable and legal
relief it may deem necessary to afford full
protectien to the aggrieved party; such relief
may include resrtaining orders, interlocutory
injunctions, permanent injunctions, manda-
tory injunctions, or such other judgments or
decrees as may be necessary under the
circumstances.
Another ,provision of section 4 would per-
mit an 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 brother-
hood, council, federation, organization,
union, or professional association made up
in whole or in part of Federal civilian em-
ployees, and which deals with departments,
agencies, commissions, and independent
agencies regarding employee matters.
A committee amendment provides that the
Attorney General shall defend officers or per-
sons who acted pursuant to an order, regu-
lation, 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 members, appointed by the
President with the consent of the Senate. No
member shall be an employee of the U.S.
Government and no more than two members
may be of the same political party. The Pres-
ident shall designate one member as Chair-
man.
Section 5(b) defines the term of office for
members of the Board, providing that one
member of the initial Board shall serve for 5
years, one for 3 years, 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
for Board members at $75 for each day spent
working in the work of the Board, plus actual
travel expenses and per diem in lieu of sub-
sistence expenses when away from their
usual places of residence.
Section 5(d) provides that two members
of the 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-
sary 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 regulations 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, with-
in 10 days after the receipt of such a com-
plaint, 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 rep-
resentatives 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 af-
forded an opportunity for oral presentation.
This section further provides that Govern-
ment employees called upon by any party or
by any Federal employee organization to par-
ticipate in any phase of any administrative
or judicial proceeding under this section
shall be free to do so without incurring travel
cost or loss in leave or pay. They shall be
free from restraint, coercion, interference, in-
timidation, or reprisal in or because of their
participation. Any periods of time spent by
Government employees during such proceed-
ings shall be held to be Federal employment
for all purposes.
Section 5(1) applies to the Board hearings
the provisions of the Administrative Pro-
cedure Act relating to notice and conduct of
hearings insofar as consistent with the pur-
pose of this section.
Section 5(j) 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
reprimand against the offending officer or em-
ployee, or order the employee suspended from
his position without pay for a period not ex-
ceeding 15 days. In the case of a second or
subsequent offense, the Board may order the
offending officer or employee suspended with-
out pay for a period not exceeding 30 days,
or may order his removal from office.
Officers appointed by the President, by and
with the advice and consent of the Senate,
are specifically excluded from the applica-
tion of these disciplinary measures; but the
section provides that, in the case of a viola-
tion of this act by such individuals, the
Board may transmit a report concerning such
violation to the President and the Congress.
Section 5(1) provides for Board action
when any officer of the Armed Forces of the
United States or any person acting under his
authority violates the act. In such event, the
Board shall (1) submit a report to the Presi-
dent, the Congress, and to the Secretary of
the military department concerned, (2) en-
deavor to eliminate any unlawful act or prac-
tice through informal methods of conference,
conciliation, and persuasion, and (3) refer its
determination and the record in the case to
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a..s person authorized to convene general
eourts-martial under section 822 (article 22)
o; title 10, United States Code. When this
d.uerminaiion and report is received, the
person designated shall immediately dispose
eJ the matter under the provision of chapter
et' of title 10 of the United States Code.
ecction 5(m) provides that when any party
d seeirees with an farrier or final determine-
on of the Board, he may institute a civil
ation for judicial review in the Federal die-
et court for the diserict wherein the viola-
tam or threatened violation occurred, or in
'te Distract Court for the District of Co-
almine.
The court has jurisdiction to (1) affirm,
n eddy, or set aside any determination or
order made by the Board, or (2) require the
3,ra to make any determination or order
which it is authorized to make under section
ke but which it has refused to make. In
eeteedering the record as a whole, the court
Is to set aside any finding, conclusion, de-
l. rinination, or order of the Board unsup-
ted by substantial evidence.
The type of review envisioned here is sim-
11a,t to that obtained under the Administra-
tive Procedure Act in such cases but this sec-
tion affords a somewhat enlarged scope for
consideration of the case than is now gen-
ei'ally accorded on appeal of employee cases.
The court here has more discretion for ac-
0011 on its own initiative. To the extent that
they are consistent with this section, the
pros/tali:Ms for judicial review in title 5 of the
United States Code would apply.
etectiOn 5(n) provides for congressional re-
v.ew by directing the Board to submit to the
Smote and to the Rouse of Representatives
ao annual report which must include a state-
n,ent concerning the nature of all complaints
nest with it, the determinations and orders
r4 suiting from hearings, and the names of all
officers or employees against whom any pen-
ee ties have been imposed under this section.
Section 5(o) provides an appropriation of
e- 00.000 for the Board on Employee Rights.
SEC'TION 6
eteseion 6 provides that nothing in the act
filell be construed to prohibit an officer of
the Central Intelligence Agency or of the
National Security Agency, under specific
eonditions, from requesting an applicant or
employee to submit a personal financial
statement of the type defined in subsections
I (I) and (j) or to take any polygraph or
seychological test designed to elicit the per-
sonal information protected under subsec-
tion 1(e) or l(f).
In these agencies, such information may
he acquired from the employee or applicant
by such methods only if the Director of the
agency or his designee makes a personal
finding with regard to each individual that
tuch test or information is required to pro-
I ect the national security.
SECTI. iN 7
:7;001.1011 7 requires, in effect, that em-
el eyees of the Central Intelligence Agency
,41..d the National Security Agency exhaust
their administrative remedies before invoke
the provisions of section 4 (the Board on
i-ioployee Rights) or section 5 (the Federal
court action). An employee, his representa-
. or any organization acting in his be'.
nail,, must first submit a written complaint
of the agency and afford it 120 days to pre-
.eat the threatened violation or to redress
es actual violation. A proviso states that
tt,Itung in the act affects any existing legal
authority of the Central Intelligence Agency
linuer 50 U.S.C. 403(e) or of the National
,urity Agency under 50 U.S.C. 833 to ter-
o.ne employment.
secersiV 8
se- tion 8 provides that nothing in the act
ii ci he construed to affect in any way ad-
nersty of the directors of the Central In-
gence Agency or the National Security
,Scnu'v to protect or withhold information
pursuant to Statute or executive order. It
cases involving his employees, the persorft
certification by the Director of the agent,
that disclosure of any information is incot
ststent With the provision of any statute
executive order is to be conclusive and re
such information shall be admissible in eye
dence In any civil action tinder section 4 te
In any preceeding or civil action under set
tion 5. Nor may such information be receie
able in the record of any interrogation of fir
emnloyee under section 1(k).
SECTION 9
Section 9 provides that the Federal Burea,,
0.1. Investigation shall be excluded from ate
provisions of this act,
SECTION 10
Section 10 provides that nothing containee
In sections 4 or 6 shall be construed to pre
vent the establishment of department an,
agency grievance procedures to enforce tad
act. The section makes It clear that the eis-
istence of such procedures are not to pre
elude any applicant or employee from put
suing any other available remedies. However
if under the procedures established by at
agency, the complainant has obtained coin
plete protection against threatened viola
tions, or complete redress for violations, suel
relief may be pleaded in bar in the U.S. die
trict court or in proceedings before the Boase
on Employee Rights.
Furthermore, an employee may not seek
his remedy through both the Board and the
court. If he elects to pursue his remedie+
through the Board under section 5, for in -
stance, he waives his right under section
to take his case directly to the district courl
SECTION ii
Section 11 is the standard severability
clause.
CONSTRUCTION OR ACQUISITIOls
OF EDUCATIONAL FACILITIES IE
SCHOOL DISTRICTS IN CLOSE
PROXIMITY TO INDIAN RESERVA
TIONS
The Senate proceeded to consider the
Joint resolution (S.J. Res. 1441 to pro
vide for the appropriation of funds to
assist school districts adjoining or in the
proximity of Indian reservations, to con
struct elementary and secondary schools,
and to provide proper housing and educa-
tional opportunities for Indian children
attending these public schools, whict
had been reported from the Committee
on Interior and Insular Affairs, with al.
amendment, on page 3. after line 1$
strike out:
SEC. 2. For the purpose of carrying out ten
provisions of this joint resolution, there is
authorized to be appropriated, for the fiscal
year commencing July 1, 1970, the sum er
$7,500,000, and for each of the two ner
succeeding fiscal years, the sum of $7,500,000
such funds to remain available until
expended.
And, in lieu thereof, insert:
SEC. 2. For the purpose of carrying out the
provisions of this joint resolution, there IS
authorized to be appropriated $27,400,001
annually for each of the fiscal years 1971
1972, and 1973. Such sums shall remain avail-
able until expended.
SO as to make the joint resolution
with the preamble read:
To provide for the appropriation of funds
to assist school districts adjoining or in the
proximity of Indian reservations, to cone
struct elementary and secondary schools and
to provide proper housing and educational
opportunity for Indian children attendinp
these public schools.
Whereas it is the responsibility of the Fed-
eral Government to provide educational op-
portunities to Indian children living on In-
dian reservations or on Indian land in the
proximity of reservations; and
Whereas the Secretary of the Interior has
found it practicable and advisable tc educate
Indian children in the public schools;
Whereas sufficient schools have not been
constructed by the Federal Government to
provide for the education of Indian children
In some areas of Indian reservations served
by public school districts; and
Whereas theme public school districts are
bonded to the limit and are unable to pro-
vide facilities, which forces many of the In-
dian children Co attend schools in dilapidated
barracks and quonset huts, or to leave the
reservation to attend Indian boardiMs schools
in other States; and
Whereas the Indians desire that their chil-
dren attend public schools in their immedi-
ate locality; and
Whereas the public school districts are will-
ing to accept the Indian children if funds
can be obtained to construct adequa:e
and
Whereas the Bureau of Indian Affairs has
facilities where necessary in connection with
new school facilities; and
Whereas the cost to the Govcernrnent of
educating the Indian ehildren in these areas
would be decreased if provision is made for
them to attend public schools in the area in
which they presently reside: Now, therefore.
be t
Resolved by the Senate and House of Rep-
resentatives of the United States of America
in Congress eteqembled, That the Secretary of
the Interior is authorized to enter into a con-
tract or contracts with any State or local
educational agency for the purpose of assist-
ing such agency in the construction or acqui-
sition of classrooms and other facilities in
school districts adjacent or in close proximity
to Indian reservations necessary for the edu-
cation of Indians residing on any such res-
ervation. Any such contract entered into by
the secretary pursuant to this joint resolu-
tion shall contain provisions requiring such
contracting agency to?
(1) provide Indian students attending such
facilities in any school district the same
standard of education as provided non-In-
dian students in such district;
(2) operate euch facilities as a part of the
public school system and provide a program
of instruction meeting the standards re-
quired by such State or local educational
agency for other public schools under the
jurisdiction or control of such agency; and
(3) meet, with respect to such facilities
acquired or constructed pursuant to such
contract, the requirements of the State and
local building codes, and other building
standards set by any such State or local edu-
cational agency for other public school facili-
ties under its jurisdiction or control.
Sm. 2. For tho purpose of carrying out the
provisions of this joint resolution, there is
authorized to be appropriated '127,400,000
annually for each of the fiscal years 1971,
1972, and 1973, Such sums shall remain avail-
able until expended.
Mr. MONTOYA. Mr. President. I wish
to express my strong support for the res-
olution, Senate Joint Resolution 144, now
before us to provide additional funds for
the construction of schools near Indian
reservations.
I am pleased to have joined my distin-
guished colleapne from New Mexico, Sen-
ator CLINTON ANDERSON, in cosponsoring
this important measure. Basically, Sen-
ate Joint Resolution 144 would authorize
the appropriation of construction funds
to assist local public school districts in
the education of Indian children who re-
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-
side on reservations and Indian lands
near reservations in proximity of public
school districts.
In the past, assistance to these school
districts under Public Law 815 has proven
wholly inadequate. Actual appropriations
under this law have been negligible, and
there is at present a tremendous backlog
of applications under Public Law 815.
Under no circumstances can we continue
to depend on this sources for meaningful
assistance for school districts? with large
numbers of Indian children.
Even should Public Law 815 funds be
forthcoming for these school districts,
these funds relate only to classroom
space. The needs of school districts re-
sponsible for educating Indian children,
whose parents are not taxpaying Federal
Government workers or military person-
nel extend far beyond classroom con-
struction. Funds are also needed for
cafeteria, libraries, and recreation fa-
cilities.
Enactment of Senate Joint Resolution
144 would go far to meet these needs. It
would permit public school districts to
provide high quality education for In-
dian children without removing the chil-
dren from their homes and sending them
to distant boarding schools. If the school
districts are to be adequate to the task
of educating Indian children attending
schools within their boundaries, finan-
cial assistance must be afforded them.
I commend the Senate Committee on
Interior and Insular Affairs for recogniz-
ing the need for this legislation and act-
ing promptly in reporting it to the Sen-
ate floor. I am pleased this committee
has, appropriately, raised the authori-
zation figure in the resolution to more
realistically reflect the true requirement.
The resolution provides $27.4 million an-
nually for the next 3 fiscal years. This
figure compares to the total need of $82,-
175,000, estimated by the Bureau of In-
dian Affairs.
Mr. President, I think this is a small
amount to ask for, considering the scope
of the problem. These funds would make
possible direct assistance from the Bu-
reau of Indian Affairs, and school dis-
tricts receiving such assistance would be
required to provide Indian students with
the same educational standards as are
provided non-Indian students. This
proposal represents an intelligent and
critically needed solution?at least in
part?to the crisis we face in Indian edu-
cation.
I urge my colleagues in the Senate to
join me in support of this important leg-
islation.
Mr. MANSFIELD. Mr. President, I ask
unanimous consent to have printed in the
RECORD an excerpt from the report (No.
91-874) , explaining the purposes of the
measure.
There being no objection, the excerpt
was ordered to be printed in the RECORD,
as follows:
PURPOSE
The purpose of Senate Joint Resolution 144,
introduced by Senator Anderson, for him-
self, Senator Montoya and several other co-
sponsors, is to provide for the appropriation
of funds to aid public school districts near
Indian reservations in the construction of
classrooms, housing and other necessary edu-
catfonal facilities for Indian children attend-
ing these schools.
NEED
There are today approximately 120,500 In-
dian children attending public elementary
and secondary schools in or near Indian areas
and another 52,000 are attending Bureau of
Indian Affairs schools. Some 17,000 Indian
children are attending mission or parochial
schools. In each of these three categories
of schools there are unmet construction
needs. In the case of Bureau schools, there
is an unfunded construction backlog need
of some $200 million. The committee has
no information on the needs of the mission
and the parochial schools but it is well
known that such needs do exist and that
such schools are generally in increasing fi-
nancial distress and some are closing thereby
increasing the need for additional school fa-
cilities in those areas.
At the request' of Senator Anderson, the
Bureau of Indian Affairs has furnished an
estimate of the total construction needs for
public schools that serve Indian children
in or near Indian areas. The list of the
estimates for the various States, which totals
some $82.2 million, is as follows:
Estimate of public school construction needs
in Indian areas
State:
Amount
Alaska
$1, 000,000
Arizona
20, 000,
000
Colorado
(1)
Idaho
(1)
Iowa
150,
000
Kansas
130,
000
Minnesota
2, 500,
000
Montana
5, 055,
000
Nebraska
2,390,
000
Nevada
1, 500,
000
New Mexico
40, 000,000
North Dakota
795,000
Oklahoma
155,
000
Oregon
500,
000
South Dakota
4, 500,
000
Washington
1,500,
000
Wisconsin
1,500,
000
Wyoming
Total
500,
000
82, 175,
000
1 Not available.
For many years the Congress has been ad-
vised that the movement of Indian children
away from boarding schools and Bureau of
Indian Affairs day schools and into the pub-
lic system should be accelerated. The Meriam
Report of 1928, the survey report of the
Bureau of Indian Affairs made in 1954, the
report to the Secretary of the Interior by
the Task Force on Indian Affairs in 1961,
the President's message of March 6, 1968, and
most recently the 1959 Report of the Special
Subcommittee on Indian EducatiOn of the
Senate Committee on Labor and Public Wel-
fare have very strongly urged that Indian
children receive their education in public
schools near the reservations.
Enactment of Senate Joint Resolution 144
is recommended because assistance from oth-
er sources, such as Public Law 81-815 funds,
has proven to be totally inadequate to meet
Indian education needs. Even when money is
available under Public Law 815, a local school
district may obtain funds only for construc-
tion directly related to classroom space. This
restriction may be a valid one when taken in
reference to facilities in a district having
adequate school income and used by non-
Indian students whose parents are taxpay-
ing Federal Government workers or military
personnel. However, the education of Indian
children is a totally different and unrelated
Federal obligation. Funds spent on facilities
for Indian children should not be considered
as expenditures which merely supplement
existing school budgets. These funds are nec-
essary for every construction need a given
school facility may encounter, including
cafeterias, libraries and recreation facilities.
A very small tax base as well as chronic
poverty conditions exist in many school dis-
tricts with the responsibility of educating
S 7369
Indian children. The end result is insuffi-
cient school income in any form.
The backlog of unfunded Public Law 815
applications is another factor to be consid-
ered. Even if Public Law 815 funds could be
used for complete school facilities, there ap-
pears to be no hope of obtaining needed
money from this source. Public Law 815 ap-
propriations have fallen more than 6 years
behind estimated requirements. Yet, in most
school districts serving Indian children, there
has been a rapid increase in the number of
students. Present facilities are overcrowded
and construction funds are falling further
behind each year.
A long and exhaustive review of the im-
pacted area program under Public Law 815
and the supplementary boarding school sys-
tem has demonstrated that modern, State-
operated educational facilities in the proxim-
ity of Indian homes are the only reasonable
solution to Indian educational needs. In the
long run, this approach will allow Indian
children to receive a good education and at
the same time remain exposed to their own
time-honored traditions and social patterns.
AMENDMENT
Senate Joint Resolution 144 would au-
thorize funds which would enable the Sec-
retary of the Interior to enter into contracts
with State or local educational agencies to
assist in the construction of acquisition of
educational facilities in school districts in
close proximity to Indian reservations. These
contracts would contain requirements that
Indian students receive the same standard of
education as provided non-Indian students.
As originally introduced, this legislation
provided an authorization of $7.5 million for
each of the fiscal years 1971, 1972, and 1973
to meet the construction funding needed.
Following receipt of information from the
Bureau of Indian Affairs and various State
education officials, the estimates of construc-
tion needs rose to approximately $82.2 mil-
lion. The committee has adopted amendatory
language to reflect the more than $80 million
figure.
COMMITTEE COMMENT
The purpose of this bill is to provide a
stronger educational program for Indians
both on. and off the reservations. It is the in-
tention of the committee to guarantee to the
Indian students educational quality and op-
portunities equal to that received by students
in public schools.
This committee calls for the Bureau of
Indian Affairs to lend its full effort to the
full funding of this authorization. The com-
mittee further urges that through this pro-
gram Indian children be removed from board-
ing schools and placed in public schools near
their homes as rapidly as possible. It is the
intent and hope of the committee that board-
ing schools may be eliminated from the In-
dian education program at the earliest pos-
sible date and, further, that the responsi-
bility for the education of Indian children
be transferred to the local public school dis-
tricts, where at all possible.
The Commissioner of Indian Affairs is re-
quested to report to this committee at the
end of each year for which funds are ati-
thorized by this legislation concerning:
(1) Whether or not the authorization is
sufficient to accomplish the goals of Congress
in improving Indian education;
(2) The progress made in transferring stu-
dents from boarding schools to public
schools;
(3) The progress in turning over to the
States the responsibility for the education
of Indian children; and
(4) Any problems that may have been en-
countered in carrying out the desires of this
committee that better education programs be
provided for the Indian students.
There may be problems, for instance, in
busing children because of lack of roads.
The committee would hope such needs would
be outlined and recommendations be made
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solutions. In this and other mat-
. eummitiee wishes full information
e Commissioner in his annual report,
committee cannot overemphasize its de-
bat this program be implemented fully
with dispatch.
??-esoruirion, as amended, would author-
27,400,000 for each of the fiscal years
1272 and 1973 to carry out its purposes,
vxpected that appropriations for the
r.-al of Indian Affairs would be reduced in
or greater amount as Indian education
,cibility is transferred to local school
? he amendment was agreed to.
he joint resolution was ordered to be
t 'tossed for a third reading, read the
,d time, and passed.
he preamble was agreed to.
.'r. MANSFIELD subsequently said:
? President, I ask unanimous consent
the Pastore rule not be applicable
bills passed on the call of the cal-
this morning; in other words, that
?ule of germaneness will start when
unfinished business is laid before the
elate.
The PRESIDING OFFICER (Mr.
T.T e) Without objection, it is so
ORDER OF BUSINESS
771.1e ACTING PRESIDENT pro tern-
e, Under the previous order, the dis-
tineuished Senator from New York (Mr.
tees) is now recognized for 40 min-
1:!r. Jmars. Mr. President. I had in
ie. el this morning presenting a series
onenclments to the administration's
Msiipower and Training Act and ex-
nng them to the Senate, as I am the
itnhr of the administration's bill and I
ti that the situation has developed to
additional amendments and ad-
iL tonal opportunities under the bill.
t, Mr. President, before I do that, I
veth to comment on a situation which
cie?. eloped this morning and which I
think is of the greatest importance to
tee country.
THE ECONOMY
JAVITS. Mr. President, I speak
nees ranking member on the minority
Ltde of the Joint Economic Committee of
both Houses of Congress. It will be noted
C-mt the Chairman of the Federal Re-
settee Board, Arthur Burns, who used to
be part of the President's staff, has
umed that, in his words:
'IN-1,re may be useful, albeit very modest,
? for an incomes policy to play in short,
ent]iT the period between suppression of ex-
c.:. demand and restoration of price
? itt 7.
pettedly, in making this statement
lee
hums who is said to have been urg-
ing iresident Nixon to apply generalized
311re against wage and price boosts,
iterated his long-held view that such
efforts cannot work well for a long
preset-I.
Mr. President, I note also this morn-
nig that, in a speech in New York, the
Secretary of Housing and Urban Devel-
ient, Mr. Romney, has come out quite
cieariy for one of the recommendations
made by the whole minority on the Joint
Eeonornic Committee.
I wish to emphasize that there are tile
recommendations made by the whole mi-
nority of the Joint Economic Commit-
tee.
now wish to read them into the REa-
ORD. It comes from the minority reporl
In the President's Economic Report.
which is the classic document issued be
April of every year.
It reads as follows:
We reconunend that the acirainistrati
imiecrilately announce the inesoponary im-
plications of unusually significant wage and
price decisions. The Council of Economic Ad.
visers should calculate and make public how
much each price increase adds to the whole-
sale or consumer price index, and indicate
other prices which would be adversely af-
fected by such an increase. It should publish
specific arguments why a particular Indust.
try feels it necessary to raise its prices, and
suggest Government studies of situationS
where particular bottlenecks or unusual sup-
ply and demand conditions exist.
Similarly, on the wage front, the Council
should publish the price implications of um.
usual collection bargaining agreements, in-
cluding the timing of the wage increases un.
der deferent assumptions, the productivity
experience of workers in the industry, the
industry's profit situation and whether in-
dust' y officials feel the increases will nec.
essttate price increases.
Thme activities should not be considered
the foundation for more detailed interven-
tion by the Government in individual wage
and price decisions. However, we see no harm
in opening up price and wage decisions which
significantly affect the economy to the eyes
of the public. Public scrutiny could well have
a salutary effect in discouraging price and
wage increases that would have inflationary
consequences.
Mr. President, that is the proposal of
the minority of the Joint Economic Com-
mittee, now in essence backed by the Sec-
retary of Housing and Urban Develop-
ment, Mr. Ronmey. and indicated?al-
though he dealt only with the principle
involved?by the Chairman of the Fed-
eral Reserve Board, Mr. Burns. At one
and the same time, we note that the
Chairman of the Council of Economic
Advisers, Dr. McCracken, apparently has
rejected the idea and retained his fidel-
ity, which represents that of the admin-
istration, to the fiscal and monetary
means for dealing-with the present very
unsatisfactory economic situation.
However, it is worthy of note that
press reports indicate that Dr. Mc-
Cracken has conceded that because of
changing economic conditions, manage-
mem and labor would be more conducive
to Government appeals to hold the price
and wage line.
Now. Mr. President. I rise this morn-
ing to support the position taken by Dr.
Burns and by Secretary Romney and to
urge the President to adopt this view.
Later in the week. I shall be making
an extensive speech on the economy out-
lining why I believe the economic situa-
tion of the country, present and fore-
cast, has been brought to such a point in
terms of confidence by the Vietnam war,
making that an additional, major rea-
son why we have to expedite our with-
drawal from Vietnam.
In the meantime, however, there is no
reason why the measures that should be
taken and which are a direct result of the
tact that the financial implications of the
Vietnam war have been swept under the
tug for years and have not been faced up
to by the tiountry, should not row be
petal LIP
We can onie hope to ameliorate the
etuation, even though it cannot be fully
eorrected until we get out of the Vietnam
war. We ought to do everything we can
face up to ti-e fact that we are in war
eVe have not done this We have not done
a in matters of taxation. We have not
rme it with iispect to a ceiling on ex-
anditures. WP have net done it with re-
eeeet to wage and price guidelines, or
, rah respect to what Dr. Burns properly
rolls an "incomes poliey." It is for this
teason that I fully support the position
,1 Dr. Burns mid Secretary Romney, and
aissent from tie apparent position of Dr.
71cCracken.
I urge the President to pay the most
serious attention to the urgent need for
? "incomes peliey" which will endeavor
to establish eerne restraint upon sky-
ocketing wates and prices and which
takes cognizance, of course, interest rates
and the shortage of money for loans for
i--igitimate purposes in this country.
Mr. Presider t, I hope the President will
cognize that while this may not be the
Ando answer to the very dangerous eco-
oraic condition which the country now
!aces, it would provide partial remedy.
And right now such a partial, short-term
remedy beceMes a matter of the highest
eriority in terms of the economy of
A merica.
I hope the President will pay very
;,:trict attention to these two outstand-
ingly important advisers who have given
him, in my judgment, exactly the right
advice at the right time.
Bear in mind that this advice is hacked
up by the views of the minority of the
? ')int Economic Committee which is by
no means composed of wild-eyed radi-
cals, but is composed of some of the most
solid and deep conservative thinkers on
economic problems in the Senate and the
House of Representatives. A complete
CAUCUS of all Republicans in the Senate
elso met and discussed these minority
-eats before they were finalized.
Mr. President, I might say that I am
...ery proud to note that the Senator from
Iowa (Mr. MILLER), who was in the
Chamber a moment ago, is one of the
minority members on the Joint Economic
Committee and has given this matter
c,msiderable night.
I hope the President will find the time
to read the views of the minority on the
t-int Economic Committee.
MANPOWER AMENDMENT TO BOOST
PUBLIC SEnTOR JOBS TO FIGHT
HIGH UNEMPLOYMENT
ANIENDD/IENT NO. 634
Mr. JAVITS, Mr. President, I submit
today on behalf of myself, our distill-
euished minority leader, the Senator
from Pennsylvania (Mr. Scor). the Sen-
ator from Maseachusetts (Mr. Beoorte).
the Senator from New Jersey (Mr. Case).
the Senator from Illinois (Mr. PERCY),
the Senator from Pennsylvania (Mr.
SCHWEIKER), and the Senator from
Approved For Release 2005/03/24: CIA-RDP81-00818R000100040015-4