LETTER TO MR. H. PATRICK SWYGERT FROM FREDERICK P. HITZ

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000700110089-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 15, 2016
• Document Release Date: April 12, 2004
• Sequence Number: 89
• Publication Date: August 7, 1978
• Content Type: LETTER

Approved For Reldkffe 001040~M I~IhJI~8G6110We (CORD rof
WASHINGTON, D. C. 20303 Y
Mr. H. Patrick Swygert
General Counsel
Civil Service Commission
Washington, D. C. 20510
% .I AUG
1978
ieO
We appreciate having had. the opportunity to discuss with you and Vice
Chairman Sugarman , in Si Lazarus' office last Friday, 4 August 1978,
our concerns with the Civil Service Reform, legislation. To follow
up that session, I would like to provide the following material reflecting
our understanding as to specific problems:
1. The scope of the authority of the proposed Special
Counsel. Attached at Tab A is a floor colloquy which we
should clear with Representative ' JUM prior to our lining
up members to present it during floor debate on H. R. 11280.
2. Several problems we have with particular provisions
in section 1206 of Title II of H. R.. 11280, relating to specific
authorities of the Special Counsel. These issues, contained
in Tab B, would be addressed at conference since it is our
understanding the A ministration off es not plan to propose
substantive amendments during the floor debate. These
matters complement the floor colloquy noted above, which
is contained in Tab A.
3. Three amendments that are in the nature of
technical amendments, to be addressed during the floor
e ate on H. . these are attached at Tab C.
4. Five matters that should be addressed during the
conference on the legislation; these are addressed in Tab D.
Two t of are report language matters and three would
require amendatory language.
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I understand Chairman Campbell plans to meet with Representative
Udall, possibly later today, at which time he will present our concerns,
as outlined in the attachments to this letter. I would appreciate being
kept fully informed of activities in this regard so we ensure a coordinated
effort, and so that we are able to assist in answering any questions or
requests for additional information that may come up. We appreciate
very much your support in this endeavor, and look forward to working
closely with you to arrive at a mutually satisfactory resolution.
Sincerely,
1Sj
Frederick P. Hitz
Legislative Counsel
Distribution:
Orig - Addressee
2 - Personnel
1-OGC.
OLr':RT.B: sm: (7 August 78)
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COLLOQUY TO MAKE CLEAR THE SCOPE OF THE AUTHORITY
OF THE SPECIAL COUNSEL UNDER TITLE II OF
H. R. 11280
The legislation now before us would effect significant changes
to the Government's Civil Service system in order to prevent abuses of
personnel practices. One of the mechanisms in this process is the
establishment of a Special Counsel to receive and investigate alleged pro-
hibited personnel practices and to monitor remedial action therefor. Now,
it is my understanding, after careful review of and consultation on these
provisions of the bill, that the powers of the Special Counsel to investigate
substantive allegations of misconduct are exerciseable only to the extent
that there is involved an alleged prohibited personnel practice as defined
in section 2302 of Title I. I would simply like to make clear that this
is in fact the intended scope of the Special Counsel's authority, which seems
to me the appropriate scope of his power consonant with the manner in
which he would function pursuant to the terms of sections 1204 through
12 0 7.
My distinguished colleague is correct on this point. This
legislation would establish a Special Counsel with authority to receive
allegations of misconduct only in connection with prohibited personnel
practices; he would also monitor remedial measures. Title I of H.R.
112 80 defines what are "prohibited personnel practices." Title U establishes
the mechanism whereby these practices and related allegations are to
be received, considered and remedied; that is, the Special Counsel.
I thank the distinguished member of the Post Office and Civil
Service Committee for his clarification of this matter.
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paragraph 1206(c)(1)(B), and by amending paragraph. 1206(c)(7) to
make clear that subsection 1206 (c) is not intended. to authorize any
disclosure of information that is classified or protected from disclosure
by law. This latter change would remove the implication that national
security information would be disclosed by an agency, GAO, or the
Congress.
3. The requirement in subsection 1206(d), that the Special
Counsel publish a "list of noncriminal matters referred to agency heads"
(lines 17 through 19 of page r60 of the 31 June 1978 Committee Print),
does not make clear that information protected against disclosure by law
or Executive Order shall not be included in such public list.
Since it may not always be clear on the face of the information
concerning alleged violations or improprieties which the Special Counsel
may receive that classified or otherwise protected information is contained
therein, it should be clarified--by amendment or by Report language,
or both--that the provision is not intended to authorize the Special Counsel
to disclose information that is classified or is protected against disclosure
by statute. The matters that would be contained in such a public list by
the Special Counsel would constitute only information he had received under
his investigatory jurisdiction described in this section (the report should
make this point clear). To ensure that no information that is classified
or protected against disclosure by statute is contained in a public list,
it should be made clear that the Special Counsel, prior to including-any
information in a public list, shall consult with the head of the agency
involved to determine if any classified or protected informationis involved,
in which case the information shall. not be included in a public list.
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SPECIFIC CONCERNS RELATING TO PARTICULAR AUTHORITIES OF
THE SPECIAL COUNSEL UNDER SECTION 1206 OF TITLE II OF H. R. 11280
1. Subsection 1206(c) provides authority for the Special Counsel
and the Comptroller General to become involved in investigating alleged
reprisals against Federal employees who disclose alleged abuses,
illegalities or improprieties. Pursuant to subparagraph 1206(c)(1)(A),
page 154 of -the 31 July Committee Print., this authority does not extend
to disclosures of alleged violations of any law, rule or regulation that
are "prohibited by law or Executive order" (e. g., classified information or
information involving intelligence sources and methods, which the Director
of Central Intelligence is responsible for protecting from unauthorized
disclosure, 50 U. S. C. 403(d)(3)). However, subparagraph 1206(c)(1)(B),
also on page154 of the 31 July' Committee Print, which concerns not "any
disclosure" as in (A) but disclosures to the Special Counsel or Inspectors
General that relate to mismangaement, waste of funds, or abuse of
authority, contains no provision similar to that in (A) which, in. essence,
"protects" only those disclosures that are "not prohibited by law or
Executive order. " This could be read to mean the Special Counsel (and
derivatively GAO) would have jurisdiction over any alleged reprisal for
any disclosure by an employee under 1 06(c)(1)(B), even involving informa-
tion that is classified or protected by law against disclosure. In the case
of the CIA, this would be inconsistent with present procedures based on the
statutory authorities and responsibilities of the CIA and the Director of
Central Intelligence. It is therefore esential that the following language
which appears in subparagraph 1206(c)(1)(A) be added to subparagraph 1206
(c)(1)(B): "... [such disclosure], not prohibited by law or Executive order..."
2. Subsection 1206(c) of H. R. 11280, as amended during ,_
mark-up, would,. among other things, and unlike the Senate bill: (1) authorize
the Special Counsel to require an agency head to conduct investigations;
(2) authorize the Special Counsel to require investigations of "related
matters"; (3) require that agency heads submit very detailed reports of
investigations; and (4) provide for access by the GAO to detailed investiga-
tive activities. Moreover, paragraph 1206(c)(6) could be construed to
provide GAO an independent investigatory power. These provisions are of
concern because they could all result in requiring access by external
entities to intelligence information that is now protected by Executive Order
or by provisions of the National Security and CIA Acts, as amended
(e. g., 50 U. S. C. 403(d)(3), 50 U. S. C. 403g, and 50 U. S. C. 403j). These
problems could be remedied by the amendment suggested above to sub-
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TECHNICAL AMENDMENTS TO H. R. 112 80
1. Add the words ", as amended" immediately following the four
statutory citations contained in section 2 304 of Title I of H. R. 11280
(page 143 of the 31 July 1978 Print). The section so amended would read
as follows:
"52304. Coordination with certain other provisions
"Nothing in this chapter, or action taken under this
chapter, shall be construed to impair the authorities and
responsibilities set forth in section 102 of the National
Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403), as
amended, the Central Intelligence Agency Act of 1949
(63 Stat. 208; 50 U. S. C. 403a and following), as amended,
Public Law 86-36 (73 Stat. 63; 50 U.S.C. 402 note), as
amended, and Public Law 88-290 (78 Stat. 168; U. S. C.
831-835), as amended. "
2. ?1206(e)--page 160 of the 31 July 1978 print of H. R. 11280--authorizes
the Special Counsel to investigate certain specified categories "of allegations
other than those authorized in section 1206. Subparagraph 1206(e)(1)(A)
relates to political activityr that is prohibited under subchapter III of
chapter 73 of Title 5, U. S. C. As this subparagarph is intended to place
the Special Counsel in the shoes of the present Civil Service Commission
insofar as practices and procedures relating to the investigation of
Hatch Act violations are concerned, it is recommended that the following
language be inserted before the semi-colon at the end of the subparagraph:
"...in the competitive service;" This additional language simply clarifies
the intended scope of this subparagraph.
3. Also under subparagraph 1206(e)(1)(C) the Special Counsel would
have the authority to investigate allegations concerning "arbitrary or carpriciouE
withholding of information prohibited under section 552 of" Title 5, T.T.S. C.
As it is intended that this authority run only to withholding of information
under subparagraph 5 52 (a) (4) (F) of Title 5, the citation in this subparagraph
of H. R. 11280 should be amended to read in pertinent part as follows:
"(C)... under section 552(a)(4)(F) of this title;"
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D1i[DO3118BI6R. 11280/S.2-640
1. Clarifying report language is necessary for the following two matters:
a. Report language to make clear that CIA would con-
tinue to remain completely exempt from all laws regarding
preference eligibles:
Subchapter II, Title II (sections 7511-7514)--"Notwith-
standing standing subparagraph 7511(a)(1)(B), it should be noted that
the current enabling statutes for the CIA (the National
Security Act of 1947, as amended (50 U. S. C. 403) and the
Central Intelligence Agency Act of 1949, as amended (50
U. S. C. 403a et she . )), exempt the CIA from all laws regarding
preference eli ibI s. "
b. Report language also is necessary to make clear that
the adjudication and appeals authority of the Civil Service
Commission would be passed, as is, to the new Merit Systems
Protection Board pursuant to a Presidential reorganization;
agencies' present statutory exemptions would remain in effect.
Therefore, the following language is suggested--"Any exemptions
from the adjudication and appeals authority of the Civil Service
Commission currently enjoyed by agencies will remain in effect
vis-a-vis the adjudication and appeals authority of the Merit Systems
Protection Board contained in Chapter 77. "
2. Amendments to H. R. 11280 which are necessary to be made during the
conference:
a. The definition of "agency" provided in paragraph
7103(a)(3) of Title VII of H. R. 11280 exempts, among other
agencies, the Central Intelligence Agency and the National
Security Agency. Section 7103 also provides (at page 298
of the 31 July 1978 print) that the Federal Labor Relations
Authority may exclude from coverage of the chapter other
agencies or units thereof whose primary function is intelli-
gence or counterintelligence. It is necessary to provide a
further explicit exemption from the definition of 'agency"
for "Offices for the collection of specialized intelligence
through reconnaissance programs. " These offices are
extremely sensitive and cannot be subject to any kind of
examination by external authorities outside of national
security channels. Such an exemption would be consistent
with the specific exemptions already provided for the CIA and
NSA, and is essential to ensure that all agencies or
components thereof with particularly sensitive national
security functions are in fact, and in the first instance,
excluded from the provisions of proposed chapter 71
of Title 5, U. S. C.
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The exemption for intelligence agencies from
provisions of the Hatch Act Reform Title of H. R. 112 80
(Title IX) is inadequate. The exemption operates by
way of defining a "restricted position" (i.e., a position
remaining under the provisions of the Hatch Act) to
exclude those positions (not agencies) involving, as
a substantial portion o the duties thereof, "foreign
intelligence activities relating to national security"
(pages 364-365 of the 31 July 7.978 print of H.R.
11280). This formulation is inadequate because,
among other things, it is contingent on a case-by-case
finding made by the Office of Personnel Management
that (1) a particular postion (2) substantially (3)
involves foreign intelligence activities (4) relating
to national security. Such a formulation, for
example, could result in a finding that certain positions
in the CIA or the NSA would be exempt while others would
not, depending on the particular duties of individual
employees. Also, the administrative process to be
used by OPM to determine which positions shall be
"restricted" contains no provisions to protect against
the disclosure of information concerning intelligence
sources and methods. The exemption from the pro-
visions of Title IX of H.R. 11280 for intelligence employees
is and should be based on the unique nature of the mission
and tasks of the agencies themselves, rather than on the
circumstances o m ivi ual employees' duties. The
definition of "restricted position" in paragraph 7322(8),
therefore, should be amended to specifically include
all positions in the CIA and the NSA and other entities
of the Intelligence Community,
c. Title XI of H. R. 11280 provides for the Office or
Personnel Management to conduct a "detailed study" of
the "decentralization of Federal government functions. "
In order to ensure that the details of certain sensitive
functions and organziation aspects of the CIA and other
intelligence entities are not disclosed, section 1101 of Title IX
H. R. 11280 should be amended to include the following
additional subsection immediately following present
subsection 101(c): "(d) nothing in this section shall
be considered to authorize the disclosure of any
information which is specifically required by
Executive Order to be kept secret in the interest of
national defense or the conduct of foreign affairs,
or which is protected from disclosure by statute. "
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