LETTER TO HONORABLE RICHARD H. ICHORD FROM W.E. COLBY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100060044-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 16, 2016
• Document Release Date: February 1, 2005
• Sequence Number: 44
• Publication Date: September 20, 1973
• Content Type: LETTER

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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
Honorable Richard H. Ichord, Chairman
Committee on Internal Security
House of Representatives
Washington, D. C. 20515
73-1045/a
2, 0 SEP 1973
Dear Mr. Chairman:
Thank you for your letter of 5 September 1973, forwarding
a copy of your views on H. R. 1281 and similar bills dealing with
Federal employee rights. I have read this material with interest
and appreciate your courtesy in keeping us informed of your position
in this matter.
Sincerely,
2s/, W. E. Colby
W. E. Colby
Director
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 CLAUDE PEPPER. FLA.
RICHARDSON PREYER, N.C.
ROBERT F. DRINAN, MASS.
MENDEL J. DAVIS, S.C.
M. HORNER, STAFF DIRECTOR
H. HECHT, EXECUTIVE STAFF ASSISTANT
M. NITTLE, LEGISLATIVE COUNSEL
September 5, 1973
Hon. William E. Colby
Director, Central Intelligence Agency
Washington, D. C. 20505
Dear Mr. Colby:
JOHN M. ASHBROOK, OHIO
ROGER H. ZION, IND.
J. HERBERT BURKE, FLA.
TENNYSON GUYER, OHIO
DE WITT WHITE,
MINORITY LEGAL COUNSEL
HERBERT ROMERSTEIN,
MINORITY CHIEF INVESTIGATOR
JAMES L. GALLAGHER,
SENIOR RESEARCH ANALYST
Several bills introduced in the Senate and the House
have been a matter of great concern to me, because of their
possible adverse impact upon the efficiency of Federal loyalty
and security programs. I particularly refer to S. 1688,
introduced by Senator Ervin, and H. R. 1281 and similar bills
introduced on the House side, having the ostensible purpose
of protecting Federal employees against alleged invasions of
their privacy. I am sure that you must share that concern.
I have been asked to testify on H. R. 1281 and like
bills now pending before the Waldie Subcommittee on Retire-
ment and Employee Benefits of the House Committee on Post
Office and Civil Service. I forward herewith a copy of
my views for your information.
Richard H. Ichord
Chairman
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CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
COMMITTEE ON INTERNAL SECURITY
WASHINGTON, D.C. 20515
BASIC
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STATEMENT OF CONGRESSMAN RICHARD H. ICHORD
ON H. R. 1281 and SIIttLAR BILLS,
BEFORE THE SUBCOMMITTEE ON RETIREMENT AND EMPLOYEE BENEFITS
(Committee on Post Office and Civil Service)
September 5, 1973
Chairman Waldie and Members of the Subcommittee:
Chairman Waldie has informed me that Senator Ervin has sponsored
legislation having as a stated purpose the protection of Federal employees
against alleged invasions of their privacy and that similar bills have
been introduced in the House, including H. R. 1281, introduced by
Mr. Wilson, which had been referred to this subcommittee. He asked me
to testify in connection with the consideration of this bill (H.R.1281)
and others like it, namely, H. R. 856, H. R. 1125, H. R. 1579, and
H. R. 20616. I thank you for this opportunity to present my views with
regard to these measures.
As you may know, on reference to the Committee of two prior
Senate-passed bills, S. 782 of the 91st Congress and S. 1438 of the
92nd Congress, introduced by Senator Ervin, which were predecessor
bills of S. 1688 introduced by him in the 93rd Congress, I had ex-
pressed strong opposition to the Ervin bills in correspondence with
the Chairman and Members of the Subcommittee on Manpower and Civil
Service which at that time had these measures under consideration.
The bill H. R. 1281, and similar bills introduced in this
Congress, appear to be modified versions of the earlier bills intro-
duced by Senator Ervin. While it seems to me that H. R. 1281 is a
vast improvement, of the earlier and later efforts of Senator Ervin,
it is still, in my opinion, subject to serious objections. I therefore
oppose such measures, at least in their present form. For convenience
of reference I shall relate my remarks to the provisions and pagi-
nation of H. R. 1281.
Of course I support in principle the policy expressed in
section 7171 of the bill, and I am generally in accord with the view
that limitations should be recognized by administrative personnel in
relation to the areas of inquiry with which the bill treats in
section 7173. But it is likewise evident that, at least within recent
years, the need for such limitations has been fully recognized in
executive regulations. No doubt this action has, in large part, been
prompted by expressions of congressional concern. Nevertheless, it
does not appear that there are presently any serious problems on
subjects encompassed by the bill. The present restrained program,
applied by the executive agencies, would not seem to justify the
legislative action proposed. (See the attached responses which have
been made to my inquiry by the General Counsel of the Civil Service
Commission and the Department of Justice, dated respectively June 27
and August 21, 1973, attached hereto and marked Exhibits A and B.)
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Apart from the question of necessity for legislation upon these
subjects, I am not in accord with the rigid approach taken by this bill
in its endeavor to control the exercise of executive discretion. In
its present form section 7173 endangers and subverts important policy
considerations in the maintenance of the integrity of the Federal
Civil Service and would unduly obstruct the Executive in its duty
to protect the civil service against the incursions of foreign agents,
disloyal persons, the mentally ill, homosexuals, racists, and other
unsuitable persons. Despite the exceptions which the bill endeavors
to spell out, the bill's inflexible prohibitions upon inquiry would
impair the operation of the Federal civilian employee loyalty, security,
and suitability screening programs now maintained pursuant to law and
regulations. It also trespasses upon the President's constitutional
appointing power.
In view of the threat posed by the bill to the effectuation
of the above mentioned vital governmental programs, there must be
some positive recognition of the need for a more reasonable balanc-
ing of the equities between the public right to know and the individual's
personal interest in maintaining the privacy of his past conduct.
The public right on the one hand, and the individual's private interests
on the other, ought not to be wholly weighted on either side. The
public interest must be equally asserted and, to that end, it must
be realized that, to the extent necessary to respond to this interest,
an individual who seeks governmental-that is, public-employment
must in some degree, and for such purposes, be held by his action,
in entering the public domain, to have shed his cloak of privacy.
I am, moreover, unequivocally opposed to the provisions of
sections 717+ through 7176. They erect a wholly unnecessary and
wasteful apparatus in the creation of a so-called Board on Employee
Rights and confer a monstrous power upon the Federal Judiciary which
in the expansion of its authority to intrude upon the executive can
have no other tendency than to intimidate the vast body of efficient,
dedicated, and responsive Federal administrators and thus tend to
immobilize the administration of the business of Government. In the
following, I shall be more specific.
PARAGRAPH (1), SUBSECTION(a), OF SECTION 7173
First, I direct your attention to paragraph (1), subsection (a)
of section 7173, at page 2, line 16, of the bill. This paragraph
would prevent inquiry into an applicant's "race, religion, or national
origin," with certain exceptions. It apparently operates on the
assumption that an individual might be embarrassed by such inquiries,
or that they might possibly result in some invidious discrimination
that will be practiced upon him by reason of the disclosures. Never-
theless, it makes no allowance for the interest of the Government in
ascertaining the identity of particular individuals and facilitating
the conduct of investigations to ascertain their suitability for
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employment in positions both non-sensitive and sensitive (the latter
embracing "national security" aspects as such words of art are now
commonly understood). The exceptions to prohibited inquiry do not
include one of major significance, that of ascertaining an individual's
identity in relation to such matters as arrest records or activities
of a subversive or criminal nature in which he may have engaged and
which are relevant and necessary to determine his suitability for
employment in accordance with the requirements of law and executive
orders.
The exception provided in sub-paragraph (B), which is confined
only to inquiries concerning "national origin," when the inquiry is
considered necessary or advisable to determine an individual's
suitability for assignment to activities related to the national
security, etc., is obviously not adequate to relieve the prohibition
of the objection. Moreover, I direct attention to the fact that the
term "national security" has come to be a word of art and has, at
least in employment aspects, been related to "sensitive" positions
only. See Cole v. Young, 351 U.S. 536 (1956), and the report of
the subcommittee of the Committee on Internal Security, "The Federal
Civilian Employee Loyalty Program," House Report No. 92-1637.
There are other objections to the prohibitions imposed by
paragraph (1), of subsection (a), which serve to emphasize what I
have previously indicated that when we endeavor to go beyond more
general expressions of policy, without leaving to the Executive the
details of implementation, or according to it some measure of dis-
cretion, we inevitably run into the almost insuperable problem of
endeavoring to spell out exceptions for every conceivable situation.
It is to be observed, for example, that the flat prohibition upon
inquiry into race and national origin may seriously interfere with
expressed Federal policy which has a purpose of enlarging oppor-
tunity for the employment of blacks and, also it seems, of other
ethnic groups, Spanish-surnamed or Indian, with a view toward
achieving their more balanced representation in Federal employment.
If such inquiry is to be prohibited, it is evident that there will
be some difficulty in carrying this policy into effect.
In addition, I an not certain that the prohibition upon
inquiry into "religion" will not have serious adverse consequences
in certain instances where a particular religion is of such character
as to be clearly relevant to an individual's suitability for employ-
ment. I am referring to religions which have clearly defined anti-
social and anti-Government objectives, such as the Black Muslims,
and other religious groups which, for example, teach and advocate
the pr,-.)prlet of the use of drugs and even of making human sacrifice,
a subject which I hereinafter treat more fully in my observations
regar6f'.r~g the prohibitions upon inquiry into religious beliefs or
practices as provided in paragraph (4).
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SUBPARAGRAPH (B), PARAGRAPH 3) SUBSECTION (a), OP SECTION 7173
Second, I an particularly disturbed Frith the possibly disas-
trous effect which the provisions of sub-paragraph (B), of paragraph
at page 4, commencing at line 21, may have upon the loyalty and
security programs maintained pursuant to E. 0. 10450 and Civil
Service regulations. This provision prohibits an executive agency
from making inquiry into, or any report or response concerning, "any
activity or undertaking of the employee not involving his official
duties," with certain exceptions. It is clear to me that your
objective in this clause is a very worthy objective of prohibiting
any executive agency or officer from intruding upon an individual's
private life unrelated to, and not affecting the performance of,
his official duties. However, in seeking to protect this legitimate
interest the bill has, I believe, totally overlooked, and has not
provided for, the legitimate interest of the Government in protect-
ing itself against disloyal or dangerous employees. As presently
worded, and despite the exceptions provided, this provision would
appear to prevent inquiry of an employee of any of his activities,
whether indulged in during duty hours or on off-duty hours, that
may be subversive in character or in furtherance of his activities
and associations with subversive organizations, including but not
limited to Klan-type groups. It will not be practicable in most
instances to prove that such activities are within the language
of your specific exception, "conflict with, or adversely affect the
performance of, his official duties." Yet such activities are
properly the subject of investigation under existing laws and execu-
tive orders. Indeed, to preclude the Government from exploring the
subject would even foreclose the employee from making a reasonable
explanation of his involvement when the Government is in possession
of such information from other sources. In that respect the
employees' rights, as well as the Government's, could be impaired
rather than advanced. I therefore think that an exception should be
specifically noted, permitting such inquiries and requiring reports
of activities relevant to determining the individual's suitability
for retention in employment on loyalty and security grounds in
accordance with the standards and requirements of existing law,
executive orders, and agency regulations.
W11
PARAGRAPH (4), SUBSECTION (a), of SECTION 7173
Third, paragraph (4), at page 5, line 8, would prohibit the
Government, in certain instances, from making significant inquiries
concerning the applicant's or employee's suitability for employment
on loyalty and other grounds of vital interest to the Government.
The restraints imposed by this paragraph relate to three areas of
inquiry: (1) personal relationship with any individual related by
blood or marriage, (2) religious beliefs or practices, and (3) attitude
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or conduct with respect to sexual matters. While I am fully in
accord in principle that there should be some limitation upon
inquiry in each of these areas, I am not in accord with the theory
that there should be a flat prohibition of all inquiry under all
circumstances. The exceptions to this prohibition are not adequate
to protect vital governmental interests. I would like preliminarily
to analyze the three exceptions contained in the three subparagraphs,
commencing at page 5, line 18 and following, designated (A), (B),
and (C):
Subparagraph (A) makes exception of all of the aforementioned
three areas of inquiry when conducted by "a physician" to enable him
to determine whether or not the employee or applicant is suffering
from "mental illness." This clause is so drafted that it would appear
that these inquiries cannot be conducted by an executive agency
through a physician of its own choosing. Nor does it appear that an
executive agency could compel response as a condition for employment
even in cases where the employing agency would have reason to believe
that the applicant or employee was obviously suffering from a
mental illness. Only "a physician" may elicit this information or
authorize these tests. Presumably, the language of the provision
restricts the inquiries to a physician of the applicant's or
employee's own choice, and even precludes an agency from establish-
ing a regulation on the subject. It is absurd and unwise to prohibit
inquiries in cases where there might be an obvious basis for them, or,
in less obvious cases, but where a question arises, to prohibit an
employing agency from requiring either submission to tests or
response to questions to determine the individual's suitability where
a question of mental illness is involved.
Subparagraph (B) makes exception only on one of the subjects
of inquiry, and that is with respect to sexual misconduct. This
limitation, however, would appear to be unnecessarily stringent. It
permits the inquiry into sexual misconduct only when the agency comes
into possession of information to that effect independently of any
prior inquiry of or admission by the employee or applicant. Employing
agencies could possibly live with this limitation in relation to
those Federal positions commonly designated as "critical-sensitive"
as to which full field investigations are required and which are
likely to provide a source of information for the executive agency.
Such positions however embrace only about 5% of the entire Federal
service. But with respect to other positions, about 95% of the
service, as to which full field investigations are not required, it
is not likely that the agency will obtain this information as a basis
for inquiry. Hence it seems to me that some inquiry on this subject
should be permissible. For example, there are even some obvious
cases where it would not seem to me too much to require an applicant
to respond to a direct question, such as, "Are you a homosexual?"
If the executive agency then has no basis for further inquiry, I
would agree that no further inquiry should be permissible. As you
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know, recent studies in this field suggest the prevalence of this
perversion to be upon a larger scale than previously thought, which
would appear to justify some inquiry in the circumstances I have
noted. "Employment also Senate Document 21.l, 81st Congress, 2nd Session,
titled Employment of Homosexuals and Other Sex Perverts."
Subparagraph (C) makes exception to one area of inquiry only,
and in this instance to questions concerning the personal relation-
ship of the employee or applicant with any individual related to him
by blood or marriage. Inquiry is permissible under this provision
when the official of the employing agency considers the information
necessary "in the interest of national security." I an particularly
concerned about the limitation of inquiry on this subject, despite
the "national security" exception.
In Senator Ervin's present bill, S. 1688, as was the case in
his earlier bills, no similar exception on "national security grounds"
was made to the prohibition on inquiries on this particular subject.
I objected to his earlier bills on this basis, among others, and in
this connection I had written to Chairman Henderson and Members of
his Subcommittee on Manpower and Civil Service which had the measures
under consideration. I said that the provision of the till-
would prohibit relevant inquiries in security investi-
gations, particularly in instances where the person's
relatives by blood or marriage have engaged in sub-
versive activities or membership in subversive organi-
zations, or reside behind the "Iron Curtain," and may
subject him to blackmail or coercion. This section, if
in effect at the time of the investigation of nuclear
physicist Oppenheimer, would, for example, have
seriously affected the investigation. You will recall
that Oppenheimer's brother and wife had been members
of the Communist Party and were deeply involved in
atomic espionage for the Soviet Union, a critical factor
in revoking his security clearance.
On the other hand, while the "national security" exception, which has
been written in the bill H. R. 1281, would relieve the provisions of
paragraph (14) of this objection regarding "security" investigations,
it would not do so with respect to "loyalty" inquiries and other
inquiries of relevance to the individual's suitability for employment
on other than strictly "national security" grounds as that expression
is now understood. Moreover, the exception is limited only to
inquiries in the area of personal relationship to individuals related
by blood or marriage and does not extend to inquiries in the area of
religious beliefs or practices, or with respect to sexual matters. I
shall expand upon this point in subsequent matter, but in order fully
to understand my objection to the limitation expressed in the concept
of "national security," it is perhaps desirable to digress or enlarge
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upon this concept of "national security" which has come to have a
very special and limited meaning in practice.
In Cole v. Young, supra, to which I have hereinbefore
referred, the court had to construe the statutory language of the
Act of August 26, 1950, which is similar to that employed in the
bill. The Act authorizes the suspension or dismissal of employees
when deemed necessary "in the interest of the national security."
In construing this language, the Supreme Court held that it related
only to positions within the Government which are "sensitive," that
is, sensitive in the interest of national security, and that the
term "national security" was intended to comprehend "only those
activities of the Government that are directly concerned with the
protection of the Nation from internal subversion or foreign
aggression, and not those which contribute to the strength of the
Nation only through their impact on the general welfare."
The terms "national security" and "security" investigations
have become words of art. They have in practice been related only
to national defense activities and positions according access to
information classified on national security grounds. Yet there
are a host of positions which are indeed sensitive on other grounds
in the national interest, in relation to persons, for example, who
occupy places or positions of proximity to persons who do have access
to classified information or its preparation, or have access to
information affecting life, property, or the mission of an agency,
including restricted information identifying covert informants in
aid of investigations not related to the national security, such as
narcotics investigations, or occupy supervisory positions in Govern-
ment which could seriously affect the execution of vital Government
policies not directly related to the national security but to the
Nation's general welfare. These questions have been fully explored
in the Preyer report, a report of a subcommittee of the Committee
on Internal Security, titled "The Federal Civilian Employee Loyalty
Program," House Report 92-1637. It is worthwhile, I believe, to
review this report in light of the problems here in issue.
It is becoming increasingly apparent that the concepts of
"loyalty," "security," and "suitability," although overlapping in
varying degress, are not identical concepts. They convey signifi-
cant differences in meaning and consequences. The concept of
"security" embraces the "loyalty" concept. On the other hand,
the concept of "loyalty" is not necessarily limited to the concept
of "security" or "national security." A disloyal person is
undoubtedly a "security risk." Yet all security risks are not dis-
loyal persons. An individual committed to the destruction of the
system of Government we enjoy must be regarded as a disloyal person.
He is also a security risk, because it would be unwise and unsafe
to entrust him with the secrets of the Nation or to place him in
any position in which he could adversely affect the defense of the
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Nation, or do any grave injury to its economic, political, or social
structure. On the other hand, an individual who has no such commit-
ment but has some bad habits, such as addiction to alcohol, or loose
talk, for example, or whose character has been sullied or debased by
criminal associations other than those of a treasonable or subversive
nature, cannot be classified as disloyal but may fall within the
category of "security risk."
The loyalty factor is thus relevant to all positions in Govern-
ment, while the security factor is confined to activities or positions
which more directly affect the security of classified information or
the defense of the Nation. Loyalty is a factor necessarily included
in the security question, but all security factors are not embraced
within the loyalty concept. On the other hand, the concept of
"suitability" is of broadest import and has been more generally
applied to all factors affecting an individual's fitness for Federal
employment without limitation to the narrower concepts of "security"
and "loyalty," although embraced within it. Present "suitability"
regulations of the Civil Service Commission include the following
bases for disqualification for employment in all positions:
(a) Dismissal from employment for delinquency or
misconduct;
(b) Criminal, infamous, dishonest, immoral, or
notoriously disgraceful conduct;
(c) Intentional false statement or deception or
fraud in examination or appointment;
(d) Refusal to furnish testimony as required by
? 5.3 of this chapter;
(e) Habitual use of intoxicating beverages to excess;
(f) Reasonable doubt as to the loyalty of the person
involved to the Government of the United States; or
(g) Any legal or other disqualification which makes
the individual unfit for the service.
Executive regulations, particularly E. 0. 10450, require
that investigations be conducted of all applicants for Federal employ-
ment to determine whether or not their employment or retention in
employment is "clearly consistent with the interests of national
security." It is provided that the investigations shall develop
information on subjects similar to that applied in the suitability
regulations of the Civil Service Commission, including as well other
loyalty and security factors which, inter alia, are specified as
follows:
(2) Commission of any act of sabotage, espionage,
treason, or sedition, or attempts thereat or preparation
therefor, or conspiring with, or aiding or abetting,
another to commit or attempt to commit any act of sabo-
tage, espionage, treason, or sedition.
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(3) Establishing or continuing a sympathetic
association with a saboteur, spy, traitor, seditionist,
anarchist, or revolutionist, or with an espionage or
other secret agent or representative of a foreign nation
or any representative of a foreign nation whose interests
may be inimical to the interests of the United States,
or with any person who advocates the use of force or
violence to overthrow the government of the United States
or the alteration of the form of government of the United
States by unconstitutional means.
(1+) Advocacy of use of force or violence to over-
throw the government of the United States, or of the
alteration of the form of government of the United States
by unconstitutional means.
(5) Membership in, or affiliation or sympathetic
association with, any foreign or domestic organization,
association, movement, group, or combination of persons
which is totalitarian, Fascist, Communist, or subversive,
or which has adopted, or shows, a policy of advocating
or approving the commission of acts of force or violence
to deny other persons their rights under the Constitution
of the United States, or which seeks to alter the form
of government of the United States by unconstitutional
means.
In summary, we may relate the foregoing analysis and con-
siderations to the restraints on inquiry imposed in paragraph (4)
as applied to each of the three specified areas of inquiry, which
have the following consequences despite the exceptions provided in
the bill in subparagraphs (A), (13), and (C):
(1) The effect of the prohibitions of the bill on the first
area of inquiry, the applicant's or employee's personal relation-
ship with an individual related to him by blood or marriage, would
be to preclude all inquiry into loyalty and other suitability factors
to which such a personal relationship may be relevant or may furnish
significant evidence, and would thus seriously impair the adminis-
tration and execution of existing programs for determining an
individual's suitability for Federal employment on other than
"national security" grounds.
(2) The bill would prohibit all inquiry into "religious
beliefs or practices" without any exception whatsoever. While this
is a delicate area of inquiry and any 'authority to inquire on the
subject should be discreetly exercised, it is nevertheless a fact
that there are some "religious" beliefs and practices which are not
conventional and which should clearly disqualify an individual in
certain instances for Federal employment.
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The Federal Judiciary, for example, has declared the Black
Muslims to be a religious sect. Yet, it is clear that an individual
committed to the beliefs or teachings of that religion may be grave
security and suitability risks in Federal employment. Inquiry of
adherents of that faith may be necessary to determine their eligi-
bility for Federal employment. J. Edgar Hoover has characterized
the Nation of Islam (Black Muslims) as an "all-Negro, violently
anti-government and anti-white organization," and further said that
it was "a very real threat to the internal security of the Nation."
The sect has frequently been involved in litigation. In one instance,
Wilson v. Prasse, 463 F. 2d 109 (1972), the Third Circuit had before
it the question of restraints on the distribution of Muslim literature
among the prison population. The court observed that:
The writings and teachings of the Honorable Elijah
Muhammad have been described as capable to two
interpretations by rational persons; first, "as an
endorsement of a concept of intense hatred for all
whites, who are referred to as 'devils'." Further,
these writings and teachings could be interpreted
as an endorsement of a concept that whites generally
and prison and government authorities, should be
defied by Muslim prisoners even when legal orders or
demands are made.
There are, moreover, religions that teach the propriety of human
sacrifice, torture, and enslavement, and there are religions which
have as a part of their dogma the use of drugs. Without expanding
upon the variety of religious beliefs or practices of this sort, we
need only be reminded of the fact to realize that any such flat
prohibition of inquiry on this subject would be most unwise and
dangerous.
(3) As to the prohibition upon inquiry into sexual matters
and conduct, with a limited exception for such inquiry only in cases
where the executive agency possesses information of a "specific"
charge of sexual misconduct, it is apparent here that the prohibition
is much too restrictive. It would prohibit inquiry of a limited and
generalized nature, such as a single question, "Are you a homosexual?"
Such inquiry would be prohibited even in cases where the appearance
of the individual might suggest the propriety of the inquiry. Further,
the limitation as to "a specific charge" of sexual misconduct would
even preclude inquiry in cases where there were frequent and persistent
rumors within the community of the individual's sexual misconduct, or
of his character as a homosexual, unless evidence was at hand of facts
which would support a "specific" charge or instance of actual miscon-
duct in which he had engaged. Proof of a specific charge of sexual
misconduct is difficult if not impossible to obtain, except possibly
through the applicant's own admissions.
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PARAGRAPH (6), SUBSECTION (a) OF SECTION 7173
Fourth, paragraph (6), at page 7, line 5, of the bill would
prohibit any inquiry into the property or source of income or
expenditures of an employee of an executive agency, with the ex-
ception of inquiries by the Treasury Department for ascertaining tax
or similar liabilities, or by a Federal agency in relation to financial
or commercial transactions with the United States. This provision
would thus prohibit inquiry as to all other factors of significance
in ascertaining the individual's suitability for retention in employ-
ment, particularly on loyalty and national security grounds. A
Federal employee may be employed by foreign agents and may receive
property or income from them for purposes of espionage or sabotage,
or from subversive organizations or individuals for the conduct of
such as well as other subversive activities, within and without the
Government, yet, this flat prohibition of paragraph (6) would prohibit
all inquiry on the subject. An individual may also be making personal
expenditures by ways of dues and other contributions to subversive
organizations and individuals, and yet the provisions of this para-
graph would make it unlawful for an official of an executive agency
to make any inquiry of him on the subject. The absurdity of this
prohibition must be evident on even cursory analysis.
PARAGRAPH (8), SUBSECTION (a) OF SECTION 7173
Fifth, in light of the foregoing, your paragraph (8), page 8,
at line 17, of the bill would serve only to tie the hands of the
executive in support of the limitationsimposed by the preceding
paragraphs and, of course, are highly objectionable on that ground
and for that reason.
SUBSECTION (b) OF SECTION 7173
Sixth, the provisions of subsection (b) of the bill, at page 9,
line 7, in exempting certain specific agencies from the operation of
the foregoing paragraphs of subsection (a) does not serve to relieve
the situation in any appreciable degree. The limitations imposed in
the provisions of subsection (a) apply to all other agencies of the
Government which, in varying degrees and ways, exercise national
security functions and are not excepted from the operation of the
restraints, including such sensitive agencies as the Departments of
Justice, State, and Treasury, the Atomic Energy Commission, NASA,
and the U. S. Arms Control and Disarmament Agency, to name but a few.
Even with respect to the limited specification of exceptions for the
Central Intelligence Agency, National Security Agency, and the
Federal Bureau of Investigation, you make no exception for equally
sensitive investigative agencies such as the Secret Service, those
within the Internal Revenue Service, the Bureau of Customs, and the
Immigration and Naturalization Service.
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SECTION 7174
Seventh, in the establishment of a Board on Employee Rights
in the provisions of 7174, at page 10, line 22, of the billp You
superimpose upon the numerous agencies and remedies now afforded in
the administration of the Civil Service laws and regulations, a
wholly unnecessary apparatus which is not likely to have very much
to do, if anything, but will do it in a wasteful and expensive manner.
Any prohibition upon the conduct of executive personnel, whether
imposed by legislation or by executive order and regulations in limit-
ing inquiries on the few and minor subjects specified in section 7173
of the bill, will obviously be respected by them almost without
exception. This new Board that would be created would be even less
busy than the lately bemoaned Subversive Activities Control Board,
which was the subject of much controversy for similar reasons. It
seems to me that the bill would fashion a howitzer to swat a gnat.
SECTION 7175
Eighth, in enlarging the jurisdiction of the Federal courts
in the provisions of section 7175, at page 18, line 6, of the bill
to afford review of the orders of the Board on Employee Rights, it
seems that you are, in the words of Virgil, piling Pelion on Ossa.
It is not only unnecessary, but this is one more step toward judicial
autarchy. It is not enough that the Judiciary is moving rapidly
enough without any assistance from the Legislative Branch toward
drawing to itself total power in dictating every aspect of the social,
economic, and political life of this Nation. (For the latest
incursion by the Judicial Branch upon the Legislative, see for example,
Doe v. McMillan, decided May 29, 1973.) This bill would further
contribute o le process of making this Nation the most litigious
people in the history of civilization. The result of the total
effort can serve only to intimidate, distract, harass, and obstruct
the vast body of dedicated, able, and law-abiding Federal administrators.
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Exhibit A
UNITED STATES CIVIL SERVICE COMMCSSION
Office of the General Counsel
Washington, D.C. 20+15
June 27, 1973
Honorable Richard H. Ichord
Chairman
Committee on Internal Security
House of Representatives
Washington, D. C. 20515
Dear Mr. Chairman:
This is in further reply to your letter of June 11, 1973, in which you
presented a number of questions respecting provisions of H. R. 1281, a
bill relating to invasions of the privacy of Government employees. You
stated that you understood that I had testified before the Waldie
Subcommittee on Retirement and Employee Benefits of the House Committee
on Post Office and Civil Service regarding H. R. 1281. Actually, I
accompanied Mr. Robert J. Drummond, Jr., Director of the Commission's
Bureau of Personnel Investigations during his testimony before the
Subcommittee on May 15, 1973. We had been informed by the Chairman of
the Subcommittee that the Subcommittee was particularly interested in
the Commission's relationship with the House Internal Security Committee,
including detailed descriptions of what use is made of that Committee's
services, documents, and files by agencies of the Federal Government.
We prepared our testimony to respond to this inquiry. A copy of
Mr. Drummond's prepared statement is attached.
With respect to H. R. 1281, we are presently preparing comments for
submission by the Commission to the House Post Office and Civil Service
Committee. However, since H.R. 1.281 is identical to H.R. 11150 of the
92d Congress, on which the Commission reported, I believe I can answer
your questions on that basis.
Your first questions were with respect to the proposed paragraph (1) to
section 7173(a) of title 5, United States Code, contained in section 1
of H. R. 1281. This paragraph would prohibit an Executive agency from
requesting or requiring an employee or applicant to disclose race,
religion, or national origin (with specified exceptions). You first
asked what our present practice is with respect to inquiries of this
character. The Civil Service Commission used a self-disclosure method
once, in 1966, and has not used it since.
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You then asked if we have regulations on the subject. Our regulations
are found in Subpart C of Part 713 of Title 5 of the Code of Federal
Regulations and Subchapter 3 of Chapter 713 of the Federal Personnel
Manual. A copy of these regulations is attached.
Your next question was whether, with respect to inquiries on race,
religion, or national origin, we have had any complaint, and if so,
how many in number over the past three years. (You later asked the
same question with respect to privacy invasions under three other
proposed subparagraphs.) The Commission has no current statistics on
complaints of invasion of privacy but we do not believe that there are
many such complaints. In 1971 the Commission conducted a survey to
determine whether employees were using the customary grievance procedures
to complain of any of the 11 types of grievances contained in Senator
Ervin's prototype bill. We discovered that of 5,688 grievances filed in
25 agencies, only 7 grievances were of the type described in these bills,
and 2 of the 7 would not be covered by H.R.11150, 92d Congress (or
H.R. 1281, 93d Congress) because of the exclusions in the bill.
You asked similar questions with respect to three other paragraphs in
the bill (3, 4, and 6) which I will attempt to answer in turn.
The proposed paragraph (3) would prohibit an Executive agency from
coercing, requiring, or requesting an employee to participate in nonwork-
related activities or make any report on any nonwork-related activity.
Exceptions are made for conflict-of--interest cases, where the activity
conflicts with, or adversely affects, performance of official duties,
and for public service programs.
The Commission's present (and longstanding) practice is not to coerce or
require any participation in nonwork--related activities. The Commission
requests participation in public service programs such as the Red Cross
blood donor program and civil defense activities but these would be
covered by the exception in the bill. A copy of Subchapter S11 of
Supplement 990-2 to the Federal Personnel Manual, relating to excused
leave for public service programs is attached.
The proposed paragraph (4) would prohibit an Executive agency from
requiring or requesting an employee or applicant for employment to submit
to interrogation or examination or take a polygraph or psychological test
concerning personal family relationships, religious beliefs or practices,
and sexual matters. Exceptions are made for physicians in mental illness
cases, for officials advising employees or applicants of sexual miscon-
duct charges, and for officials seeking family information in national
security cases.
The Commission's practice is not to use polygraph tests, which are only
used by the security agencies. We do not inquire about religious beliefs
or practices of employees or into their sexual matters or family relation-
ships except where any of these matters relates directly to job qualifi-
cations or fitness, as in the cases mentioned in the exceptions and in
nepotism under section 3110 of title 5, United States Code.
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.. 15
The proposed paragraph (6) prohibits an Executive agency from requiring
or requesting an employee, other than a Presidential appointee, to
disclose his property or that of his family. Exceptions are made in
cases of tax determinations, tariffs, customs duties or similar obliga-
tions to the United States and conflict-of--interest cases.
The Commission's practice is to limit its inquiries as to the property
of employees and their families to possible conflict-of-interest cases.
The Commission's regulation of agency requirements for financial
statements from employees is contained in Subpart D of Part 735 of
Title 5 of the Code of Federal Regulations (attached).
Your next question related to the creation of the Board on Employee Rights
by the bill. You asked if the Commission did not already have comparable
procedures for receiving and hearing complaints related to the subjects
covered by the bill. The Commission has always opposed the creation of
this independent Board of Employee Rights as the most objectionable
feature of the bills that have been introduced relating to privacy of
Federal employees. The Commission has maintained that all or part of each
of the subjects covered by bills such as H.R.1281 is suitable subject
matter for negotiation at the bargaining table between management and
employee labor organizations. In addition, the Commission cannot under-
stand why the full measure of the complexities of the administrative
procedure statute is applied through a new agency to this narrow range
of grievances which have little effect on an employee's career, while
the much more serious consequences of adverse actions which result in
dismissal are entrusted to the more simple procedures followed by the
agencies and the Commission.
Your final question was what the Commission's position is as to the
necessity or de:sjrability of this measure. As I stated earlier, the
Commission has not yet reported on H.R. 1281. However, I believe that
it is safe to say, based on the Commission's position on similar bills
in the past Congress, that the Commission would be opposed to enactment
of any legislation similar to H.R. 1281 on the grounds that its provisions
are unnecessary and would impose a substantial administrative burden on
Executive agencies and the Civil Service Commission without any corres-
ponding benefit to Federal employees. So that you may be more fully
informed on our detailed reaction to each of the bill's provisions, I
am enclosing a copy of the :report we sent to Chairman Hanley on
October 20, 1971 on H.R. 1111,'0 (identical to H.R. 1281).
Sincerely yours,
s/ Anthony L. Mondello
Anthony L. Mondello
General Counsel
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Exhibit B
DEPARTMENT' OF JUSTICE
Washington, D.C. 20530
August 21, 1973
This is in response to your request for the views of the Depart-
ment of Justice on certain questions raised during the course of the
hearings on H.R. 1281 and similar bills dealing with the privacy of
Federal employees.
Except for several. provisions, H.R. 1281 is substantially identi-
cal to H.R. 228, 92nd Congress, 1st Session, to which this Department
expressed its views in a report to the Chairman, Committee on Post Office
and Civil Service, dated March 26, 1971. H.R. 228 was substantially
identical to H,R. 1197, 91st Congress, 1st Session, to which the Depart-
ment expressed its views in a report dated July 10, 1970, We also
submitted a report on June 27, 1968, on 8.1035, 90th Congress, a similar
bill.
In reply to the questions contained in your letter, complaints in
matters covered in questions 1 through 4 have never been a problem within
this Department and we are unable to recall having received any such
complaints from employees or applicants within the past three years.
In addition there are no Department regulations governing these matters
except for 28 C.F.R. Sections 45.735-22, 45.735-23 and 45.735-24
(copy attached) which require employee disclosures as they might relate
to conflict of interest questions. As concerns question 1, which covers
disclosure of race, religion or national origin, it should be noted that
information of this type required for minority group statistics is
obtained through supervisory identification procedures. It should also
be noted that those sections of H.R. 1281 relating to questions 3 and
4 are objectionable as written because inquiries regarding sexual
matters are, on rare occasion, required to resolve suitability and security
considerations. Also there is a need to make financial inquiries when
an employee is alleged to be guilty of misconduct. It is essential to
protect both the innocent employee and the public interest by expressly
permitting inquiries regarding financial interests when undertaken by
a law enforcement or internal security authority which has reason to
believe that an individual has profited from privileged information,
accepted a bribe or otherwise acted improperly.
With respect to question 5 concerning the creation of a Board of
Employee Rights, as provided in Section 7174, page 10, line 22, of the
bill, we question whether such an independent Board, separate from the
Civil Service Commission and designed to address itself solely to alleged
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employee grievances, is necessary. Such a Board would clearly appear to
encroach upon the Executive's constitutional and statutory powers over
the administration of Executive departments, agencies, and their employees
(5 U.S.C. Section 7301), fragmenting the personnel authority of the Civil
Service Commission and reducing the effectiveness of the personnel
authority of the heads of agencies. As suggested by former Civil Service
Commission Chairman John Macy in his testimony before Congress, an alterna-
tive to an independent Board would be to accord employees the right of
appeal to the Civil Service Commission of any grievance arising out of
allegations of violations of the rights which would be granted employees
by the bill.
It is unclear whether Section 717I.'s procedure is to replace the
appeals process now provided under the Civil Service Commission's regu-
lations, or whether the bill envisions two separate appellant procedures.
An independent Board would interfere needlessly with countless
executive, managerial and administrative decisions made on a day-to-
day basis by the departments and agencies of the Executive Branch.
Moreover, Section 7175 would not merely authorize a federal
district court to review the Board's determination or order adverse to
an aggrieved employee or applicant, but would eliminate the "substantial
evidence" standard of review in cases where the employee filed a
complaint for a trial de novo on the violation or threatened violation
of Section 7173(a). Again, this provision contemplates judicial inter-
vention in the day-to-day operations of the Executive Branch.
Although this Department supports the salutary objective of
H.R. 1281 and of its predecessors to protect Government employees from
unwarranted encroachments on their personal privacy and on their exercise
of constitutional rights, the Department recommends, as it has done with
respect to prior bills, against enactment of this bill in its present
form.
Cordially,
s/Mike McKevitt
MIKE McKEVITT
Honorable Richard H. Ichord
Chairman, Committee on Internal Security
House of Representatives
Washington, D. C. 20515
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