LETTER TO MR. JAMES M. FREY FROM(Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R001700010035-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 16, 2016
• Document Release Date: December 21, 2004
• Sequence Number: 35
• Publication Date: February 17, 1978
• Content Type: LETTER

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THE DIRECTOR OF CENTRAL INTELLIGENCE
WASHINGTON, D. C. 20505
17 February 1978
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. Frey:
W -
d L C OrY CSC
This letter is in response to your request for our views on the Civil
Service Commission draft bill, the "Comprehensive Civil Service Reform
Act. It
CIA has serious problems with the substance of this legislation.
Numerous provisions conflict with present CIA. authorities. Its
detailed disclosure requirements, as well as its inadequate exclusions
and refusal to recognize the Director of Central Intelligence's termina-
tion authority or CIA excepted status could pose serious security
problems for the Agency and compromise the Director of Central
Intelligence's ability to fulfill his statutory responsibilities to
protect sources and methods. We therefore ask to be excluded from
the provisions of this legislation.
Enclosed you will find our specific comments and recommendations
of the draft legislation, as well as on the draft reorganization plan.
We appreciate this opportunity to present our views to you. In view
of the short period provided to review this complex paper, we may
want to provide additional views based on further study.
Sincerely,
ST
Acting Legislative Counsel
Enclosures
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Distribution:
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1 - OP, w/encl
1 - IC Staff, w/encl
1 - DDA, w/encl
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y,- OLC 0MB Liaison, w/encl
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OLC:YTF:sm (17 Feb 78)
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VIEWS OF THE.CENTPRAL INTELLIGENCE AG'gNCY ON
THE COMPREHENSIVE CIVIL SERVICE REFORM ACT
Title I prescribes rigid merit system principles that shall apply to
all departments and agencies in the Executive Branch, including the CIA..
The eight merit system principles concern, for example, personnel
recruitment, performance evaluation and grievance procedures.
As described in. Title I, the merit system principles would conflict
with the exempted status of the w CIA under 50 U. S. C. 403j. This section.
has consistently been interpreted as providing CIA with a statutory
exemption from the competitive service in order to allow the Agency
greater flexibility in performing its functions. Furthermore, the
Agency's excepted status is not governed by Civil Service Commission.
excepted position schedules.
The rigid merit system principles in Title I of the proposed Civil
Service Reform Act would hamper CIA in its staffing flexibility and
requirements. For example, section 202(1) provides that selection
and advancement of applicants must be determined through "fair and
open competition. " Also, section,20204oa_t1.d r. equi.re CIA. to give
equal consideration to all applicants, regardless of political affiliations
and national origins, a procedure which could conflict with necessary
security considerations.
Moreover, section 205 provides that the Government Accounting
Office would conduct audits and reviews to assure compliance with the
laws, Executive Orders, directives, rules and regulations governing
employment in the Executive Branch. It would also assess the
effectiveness and systematic soundness of Federal personnel management.
This Agency is not subject to audit or oversight by the GAO, a posi-
tion based on security considerations and the need to protect intelligence
sources and methods. The provisions in section 205 of the proposed
Plan, however, would authorize an entity outside the Agency to insure
its compliance with certain la,-s and reg-ulation.s. This situation would
conflict with the statutory responsibility of the Director of Central
Intelligence to protect intelligence sources and methods, particularly
the organization, functions and other personnel-related matters of the
Agency from disclosure, as provided by 50 U. S. C. 403(d)(3) and 403g.
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The provisions of Title II relating to protection of employee rights,
present the Agency with many difficulties. Many of the provisions
interfere with, impair,or are completely inconsistent with present CIA
statutory authorities. Section 202 would grant subpoena power to the
proposed Merit Systems Protection Board (Merit Board), its Special
Counsel and other designated personnel. This power could be utilized
by the Special Counsel in the course of a whistle-blowing investigation.
By the authority of section 204, the Special Counsel could also freeze
any personnel action with substantial economic impact on the complaining
employee until an investigation concerning that employee is complete.
The Agency head would be required to take whatever corrective action.
,the Special Counsel deemed necessary, if a reprisal against an employee
was found to have occurred because of the employee's disclosure of
information relating to a violation of law or regulation. If the action.
was not carried out, section 207 provides that the Special Counsel
could take the matter before the Merit Board for final determination.
These procedures would conflict with the authority of the Director of
Central Intelligence to terminate employees when in the interests of the
United States (50 U. S. C. 403(c)), with the Director's mandate to prevent
disclosure of intelligence sources and methods (50 U. S. C. 403(d)(3)
and 403g), -v ith the role of the Intelligence Oversight Board (section
3-1 of Executive Order 12036), and with. CIA's excepted personnel system.
(50 U. S. C. 403j).
Under section 205 performance appraisal systems must be established
by certain agencies for certain en nployees. The appraisal systems must
also conform to Office of Personnel Management (OPM) regulations.
Howe-.. ver, there is a discrepancy between the language of the legislation
and that of the report concerning the agencies covered by the legisla
Lion. The report contends that the Tennessee Valley Authority is
included, while the legislation states that it is excluded. The report
also contends that CIA, unlike the Foreign Service, is not meant to
be excluded, though the legislation allows for such an exclusion by .
OPM regulation. Even so, the thrust of this section. would he to
subject CIA performance appraisals to OPM control. This would
conflict with the aforementioned 50 U. S. C. 403(d)(3), 50 U. S. C. 403g
and 50 U. S. C. 403j. .
The procedures in section 203 of the proposed bill, pertaining to
demotions or dismissals based on unacceptable performance, include
a requirement for 30 days advance notice, and the right to reply and to
representation. The procedures also provide the affected employee the
right to appeal the matter to the Merit Board for final determination
pursuant to section 207. These features could conflict with the DCI's
termination authority (50 LT. S. C. 403(c)), with the Director's mandate
to prevent disclosure of sources and methods (50 U. S. C. 403(d)(3) and
4038) and with the Agency's statutory exemption from the competitive
service.
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Section 206(a) deals with adverse actions designed to promote the
efficiency of the service, including removals, suspensions and furloughs
for 30 days or less. There are two sets of adverse action procedures.
When the suspension is for more than 30 days, removals and other
adverse actions must be processed under procedures similar to those
in section 205. CIA would be covered by those- procedures only to
the extent that it would employ preference eligibles. When the
suspension is for 30 days or less, less rigorous notice, right-to-
reply and representation procedures would be required for all CIA
employees. CIA employees covered by either set of adverse actions
procedures could not be excluded from these procedures because
both exclusion provisions use the "confidential or policy determining"
language of Schedule C, which is inapplicable to CIA, as their criteria.
Thus, these procedures would tend to create the same statutory conflicts
created by the section 205 procedures. Moreover, it should be noted
that while ad-verse action by CIA management must conform to the
aforementioned procedures, the procedures curiously exclude from
coverage national security adverse actions taken under 5 U. S.. C. 7532.
In accordance with section 207, any matter to be decided by the
Merit Board would be processed under regulations established by the
Merit Board and the decision would be reviewed by the U. S. Court
of Claims or a U.S. Court of Appeals. Such practices would also
cor_ ' ict with the aforementioned statutes giving the Director the
authority to terminate employment, the responsibility to protect
intelligence sources. and methods and this Agency's exemption from
the competitive services. .
Title III, concerning staffing, provides for the examination,
selection and retaining of Federal employees. The Agency fully
supports the provisions of section 306 which would enable the Agency
to erns-in an employee with the skills necessary to fill a different
position or to acquire new skills needed for a position in another
agency. Overall, this would appear to be of benefit to the Government
by retaining competent employees in the Federal service. We
recommend that a provision be added providing for the placement
of a RIF employee within his or her own Agency as a result of
additional training.
- Section 303 would require OPM approval of a special early retire-
ment authority. Presently, CIA has authority to declare surplus
situations regarding early retirement without obtaining Civil Service
Commission approval. - If enacted, this section would conflict with the
DCI's authority to protect the numbers and functions of employees from
disclosure (50 U.S.C. 403g).
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Title IV would establish a Senior Executive Service (SES) comprising
all managerial and supervisory positions correctly classified GS-16
through Executive Schedule IV.
Section 402(b) would give the Office of Personnel. Management (OPM
authority to prescribe all implementing regulations for the SES. This
section would allow an agency to be excluded from SES by the President,
but the agency would have to do so through OP1Vl, with that Office making
a recommendation to the President as to whether an exclusion is advisable.
If the exclusion were granted, OFM could recommend to the President
a revocation at any subsequent time.
The SES would be composed of career reserved positions for career
appointees and general positions for career and non-career appointees.
OP3i would prescribe the position criteria and regulations governing the
designation of_ career reserved positions. Also, OPM would have to
approve the managerial qualifications of initial career appointees in
such positions.
All agencies covered by SES would be required to submit to OPM
requests for SES positions which would include program, budget, and
~?;orkload breakdowns to justify eac:h.request. OPM, in consultation
with the Office of ianagement and Budget, would tihh.en. allocate the
positions per agency, although OPM would reserve the right, to reduce
any allocation at will. Additionally, OPM would be required to submit
a biennial report to the Congress which would reveal the numbers of
SES positions in each Agency.
Lastly, the number of non-career appointees would be limited to
15 percent of SES positions Government-wide; these positions would be
allocated biennially by OPM according to demonstrated need. OPM
would reserve the right to make adjustments in allocations to meet any
emergency needs.
The degree of OP-Al control over the allocation of SES positions
allot=red by section 4_-02(b) would severely limit the adaptability of the
CIA personnel system and hamper its functions and operations. Such
OP.l controls also comics with the statute establishing CIA's
excepted personnel system (50 U.S.C. 403j). Further, the vast
amount of detailed information which would have to be disclosed in
order for the statutory scheme of SES to function would conflict with
the DCI's statutory responsibilities under 50 U. S. S.C. 403(d)(3) and
50 U.S. C. 403g.
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The Agency has no comments on Title VI, Research and Demonstration
the coverage of a merit pay plan to be established by OPM and implemented
by OPMI regulations. Again, OPM control would conflict with existing
statutes and would result in the removal of.an important management tool..
Title V concerns the merit pay plan for supervisory and managerial
positions from GS-9 through GS-15. Section 501 would place all managers
in grades 9 through 15 and non--managers in grades 16 through 18 under
'conflict with the aforementioned statutory responsibilities of the DCI.
Both the suspension for 30 days or more of SES employees and
their removal to promote the efficiency of the service are governed
by the procedures of section 411. These procedures include a
requirement of 'a 30 dayst advance notice, a right to reply and
representation, and an appeal to the Merit Board. This section then
would result in more disclosures and statutory conflicts.
be required to create an SEES performance appraisal system under
section 405.. If an appraisal -system is not in conformity with OPM
regulations, OPNI could order corrective action. This also would
While the removal criteria set by section 404 for SES non-career
employees is the functional equivalent of the DCIts termination
authority (50 U.S.C. 403(c)), the removal criteria for career
appointees does not include anything resembling this authority. -
All agencies, unless excluded by the President from SES,. would
statutory ?conflicts raised by the provisions of section 402(b).
According to section 403, SES pay levels would be set according to
OPM criteria. The section also would require that the staffing of SF'S
career appointees be competitive, according to a process meeting OPM
standards. Once a career executive is in place, that executive could
not be involuntarily reassigned or transferred within 120 days after the
appointment o an agency head. These restrictions present the same
Authority, and Title VII, Miscellaneous.
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VIEWS OF THE CENTRAL INTELLIGENCE AGENCY ON THE
CIVIL SERVICE COMMISSION REORGANIZATION PLAN OF 1978
is also given the authority to prescribe regulations governing the
handling of such matters. These authorities would conflict with
the oversight role of the Intelligence Oversight Board (IOB) as stated
in Section 3-1 of Executive Order 12036; the Board was specially.
created in order to keep intelligence agency whistle-blowing within
national security channels.
Section 202(f) of the proposed Reorganization Plan gives the Special
Counsel to the :Merit Systems Protection Board (Merit Board) the
general authority to receive and investigate allegations of reprisals
against whistle-blowers, i. e., for lawful disclosures of information
concerning the violation of laws and regulations. The Special Counsel
The procedures for implementing the Special Counsel's whistle-
blowing authorities have been placed in Title II of the draft legislation
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