LETTER TO MR.MICHAEL J. O'NEIL FROM(Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R003100020040-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 15, 2016
• Document Release Date: May 4, 2004
• Sequence Number: 40
• Publication Date: July 10, 1978
• Content Type: LETTER

OIC 78-0487/S
THE DIRECTOR OF CENTRAL [INTELLIGENCE
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WASHINGTON, U. C. 20505
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L-P
CL
HE"OHD COPY
Mr. Michael J. O`Nei.l, Chief Counsel
Permanent Select Committee on Int.e:Lligence
House of Representatives
i.ashington, D.C. 20515
As we discussed this morning, horn are copies of papers concerning
FI.R. 11280, the Civil Service Reform leggislat.i.on:
1.. The amendment we proposed for Title I of the bill
that would. exe,npt CIA and NSA from Title f except :i_risofrr.r
as the agencies could adhere to the merit principles
consistent with their present statutory authorities and
re spoils i.bi_l iti..es.
2. A paper provid:ing background information and
ex~7rcp"Les on the above proposed amcndr:: int..
3. A copy of the amendment as introduced by
Representable Den, i.usTci on 29 June and wh ic}~. l,as
adopted that same day; w:e hope to have the provi si.on
broaden d to include the entire Chapter 1.
4. Copies of paheCs explaining our various concerns
1 i.th the legislation which we provided to the Minority
Counsel of the Post Of.l'i cc and Civil Se rv.i.ce Committee
on 7 July.
11. keep you inform ed of ho; thins;s proceed on this.
Si ncc rely,
25X1
Ass i.staant. Legislative Counsel
Distribution:
Orig - Addressee, w/encl.s
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1. p~ fi
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OLC: RLB: sm. (l0 Jul 78)
1 0 JUL 1
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10 July 1978
Mr. Theodore J. Kazy
Minority Staff Director
Committee on Post Office and Civil Service
House of Representatives
Washington, D.C. 20515
In follow-up to our discussion last Friday on provisions in H.R. 11280,
the Civil Service Reform legislation, I would like to provide you with some
additional information on two provisions: proposed subsection 5402(a)
(page 173 of the June 15, 1978, Committee Print) and proposed Title VII
("Labor-Management Relations").
1. Proposed subsection 5402(a)--"Merit Pad System." As we discussed
on 7 July 1978, in our view, the language "as establ hed under chapters
51 and 53 of this title" should be inserted at the end of proposed subsection
5402(a), in order to make clear that the Merit Pay System is applicable only
to positions under the Pay Classification Act. Since both CIA and NSA are
not under the Pay Classification Act, this amendment would solve our concern
that, in being subject to the Merit Pay System, our personnel system would,
at least in part, become subject to external monitoring and regulation (by
the proposed Office of Personnel Management). This, of course, would
change the status quo as regards our present position, based on our statutory
authorities, and would therefore be inconsistent with our need for exemptions
from II.R. 11280. This amendment could be accompanied by Report language
making clear that:
"... As regards those agencies not subject to the Pay
Classification Act, in which pay is fixed by administrative
action, while not within the merit pay system proposed
by chapter 54, it is anticipated that these agencies will
follow the principles and procedures of the merit pay
system to the maximum extent consistent with their
authorities and responsibilities."
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A different, and in our view less desirable, approach to resolve
this problem would be to specifically exempt CIA and NSA from the scope
of the Merit Pay System. This could be done by inserting the following
language at the end of subsection 5402(a), on line 23 of page 173 of the
June 15, 1978, Committee Print:
"; Provided that the merit pay system shall not apply
to the Central Intelligence Agency or the National
Security Agency."
This amendment could be accompanied by Report language along the following lines:
"The Central Intelligence Agency and the National Security
Agency shall not be within the proposed merit pay system,
based on the unique missions and needs of those agencies
pursuant to their operative statutes. It is anticipated,
however, that these agencies will adhere to the principles
and procedures of the merit pay system to the maximum
extent consistent with their authorities and responsi-
bilities set forth in the National Security Act of 1947,
as amended (50 U.S.C. 403), the Central Intelligence
Agency Act of 1949, as amended (50 U.S.C. 403a etseq.),
Pub. L. 86-36, 73 Stat. 63, as amended, and Pub. L. 88-290,
78 Stat. 168, as amended."
2. Proposed Title VII-_"Labor-Management Relations. It is essential
that intelligence agencies not be subject to this proposed title. We
strongly endorse the provision included in the Administration's proposed
Title VII, which would exempt FBI, CIA, NSA, and other intelligence
agencies (proposed subsection 7162(c)), as we discussed on 7 July 1978.
The much narrower intelligence agency exemption provided in para-
graph 7112(b)(6), on page 23 of the June 22, 1978, Committee Print of
proposed Title VII, is inadequate. This paragraph would exempt from
"appropriate" labor "units" empl oyces "engaged in intelligence,
investigative, or security functions of any agency which directly
affect national security." This formulation, in the first instance,
does not specifically exempt agencies from coverage, but only certain
employees within agencies. Moreover, only employees engaged in "intel-
ligence ... functions ... which directs affect national security"
(emphasis added) are exempted. This language would seem to require that
a determination be made as to each employee, in CIA for example, to
determine whether his duties "directly affect national security." While
the overall mission of CIA and NSA clearly would fit this criteria,
disputes might arise as to whether each individual employee's functions
"directly affect national security." Because of this potential contra-
diction between each organization's overall functions and an individual
employee's functions, applications of the standard would be difficult and
could have the contentious and inequitable result of limiting the activities
of some employees but not others. Moreover, if even some employees were
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permitted to form an "appropriate labor unit," the results could severely
impact on the ability of intelligence agencies to fulfill their vital
missions. Finally, the proposed exemption in paragraph 711.2(b)(6)
of the Committee Print, unlike the exemption in subsection 7162(c)
of the Administration's proposed. Title VII, would not extend to the
entire Subchapter III on "Federal Service Labor-Management Relations"
[or, as the Committee Print is organized, to the entire Title VII,
"Federal Service Labor-Management Relations].
We look forward to discussing these and other matters relating to
H.R. 11280 with you. Thank you very much for your help.
R A-7 L. Barr, Jr.
Assistant Legislative Counsel
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1. National security amendment to section 2301 of the June 15, 1978,
Committee Print of II. R. 17-2'8~,-adopted 2~J June 1 J 7 3. -
a. The language of this amendment should apply to all of Chapter I
of H. R. 11280, in order to extend the necessary exemptions for CIA and
NSA to section 2303 ("Responsibility of the General Accounting Office").
As with the exemption as applied to section 2301. ("merit system
principles"), an exempt status for these agencies is based on the pro-
visions in their present statutory authorities as cited in the amendment
as bdopted. (There presently is specific exemptory language for intel-
ligence agencies in section 2302.) The recommended change, therefore,
would make the applicability of H. R. 11280 to CIA and NSA consistent with
the existing statutory situation.
b. The statutory cites in the amendment as adopted- -"50 U.S.C. 402
Note, and 50 U.S.C. 833"--are improper in terms of the necessary
scope of the exemption for NSA. "50 U.S.C. 402 Note" should be cited
as "Pub. L. 86-36, 73 Stat. 63, as amended, and "50 U.S.C. 833" should
be cited as "Pub. L. 88-290, 78 Stat 168, as amended." As an example
of the need for these changes, 50 U. S. C. 833 contains only the special
termination authority for the Director of NSA, whereas the Public Law
cite--Pub. L. 88-290?--also exempts NSA from the Performance Rating
Act of 1950 and mandates special security requirements for employment
in NSA. These recommended citation changes, therefore, would make
the amendment to H. R. 11280 consistent with present laws as. regards
NSA.
2. Amend proposed subpar agraph 1206(c)(11))(B) to make it consistent
with subparagraph 1206(c)(1)(A).
Subparagraph (A) reads, in pertinent part: "(A) any disclosure, not
prohibited by law or Executive order... " Subparagraph (B), which also
relates to alleged reprisals against employees who disclose information
(and the authority of the Special Counsel to receive such allegations), does
not contain the limiting proviso, " not prohibited by law or Executive
order. " The "disclosures" in subparagraph (A) concern violations of law,
rules, or regulations; those in subparagraph (B) concern evidence of mis-
management, waste of funds, or abuse of authority. Since in fact this
second category could, in the case of an intelligence agency such as CIA
or NSA, concern information that is classified or otherwise protected
against disclosure by law, just as could the category in subparagraph A,
the "disclosure language" in both subparagraphs should be identical. In
other words, if disclosures relating to alleged violations of laws, rules,
or regulations are not to be "protected disclosures" within the meaning
of section 1206, then disclosures relating to alleged mismanagement
[e.g., of a sensitive intelligence project], waste of [ e.g., intelligence]
funds, or abuse of authority, should likewise not constitute such 'protected
disclosures. " It is therefore recommended that the language ", not
prohibited by law or Executive order, " be added to subparagraph (B)
after the word " . disclosure ... " as it appears on line 8 of page 28
of the June 15, 1978, Committee Print of H. R. 11280.
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3. Report language to clarify the authority of GAO pursuant to
parara~3
Assuming the amendment to subparagraph 1206(c)(1)(B) noted above,
the Report language for paragraph 1206(c)(3) should specify that, in
conducting an examination reported to it under 1206(c)(2)(B), the GAO
shall have no authority, derivative or otherwise, to examine any
information "the disclosure of which is prohibited by law or
Executive order. " This language would ensure that the status of such
information as not being "protected disclosures" within the meaning of
section 1206 shall remain intact, notwithstanding any potential "finding"
reported to GAO involving other information and regarding which access
to information the disclosure of which is prohibited by law or Executive
order may be sought.
4. Amend pr. Proposed subsection 1206(e), or include Report lan ua e,
or both, to make clear that the rea~uirement, in subsection 1206(e) of
H. R. 11280, that the Special Counsel shall make public a list of nan-
criminal matters referred toageny heads ...T' is not intended to provide
the Special Counsel a.ny authority to disclose information that is classified
or is protected against disclosure by law.
The language in the last sentence of subsection 1206(e)--lines 19 through
21 of the June 15, 1978, Committee Print of H.R. 11280--does not make
clear on its face that the public list of "noncriminal matters" referred to
agencies by the Special Counsel shall not contain information that is
protected against disclosure by law or Executive order. 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 cl.a.rified--by amendment or by Report language, or both--that the prov-
ision is not intended to authorize the Special Counsel to disclose informa-
tion that is classified or is protected against disclosure by statute. The
matters that would be contained in such a public li; t by the Special Counsel
would constitute only information he had received under his jurisdiction
elsewhere in this section. 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 information is
involved, in which case the information shall not be included in a public
list.
5. Resort language to clarify the investigations by the Special Counsel
under subsection relate only to iivestigations under the provisions
ofsect:ion. 12~~,_`_.`_-__.- ------_--~ _- ~._ -_--
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Inclusion of language in the Report on II. R. 11280 that the authority
of the Special Counsel to investigate matters under subsection 1206(e) goes
only to investigations which the Special Counsel is authorized by other
provisions of this section to undertake, simply makes clear that subsection
1206(e) is not intended to confer any additional, independent investigative
authority on the Special Counsel.
6. Amend subsection 1206(f) to exempt from its coverag CIA and NSA.
Subsection 1206(e) authorizes the Special Counsel to investigate
certain specified categories of allegations other than those for which
he is authorized elsewhere in section 1206. Consiste"nt with the exemptions
provided CIA and NSA--by virtue of these agencies' present statutory
status--in Chapter I of II. R. 11280, the Special Counsel should not,
through subsection 1206(e), obtain independent authority to investigate
these agencies. It is therefore recommended that, in order for the
scope of subsection 1206(e) to be consistent with the status of CIA and
NSA in Chapter I, the following language be added as a new final
sentence to subsection 1206(e) on line 2 of page 32 of the June 15, 1978,
Committee print:
"Nothing in this subsection shall be construed to impair
the authorities and responsibilities set forth in the National
Security Act of 1947, as amended (50 U.S.C. 403), the Central
Intelligence Agency Act of 1949, as amended (50 U.S.C. 403a
et seq. ), Pub. L. 86-36, 73 Stat. 63, as amended, and Pub. L.
88-290, 78 Stat. 168, as amended. "
7. Clarification of the scope of subparagraph 1206(f)(1)(C).
The language of subparagraph 1206(f)(1)(C) could be construed to
grant the Special Counsel broad authority to investigate any allegation
that any information withheld under any provision of the Freedom of
Information Act (5 U. S. C. 552) was7c one "arbitrarily or capriciously. "
This would constitute very broad authority and would effect a substantial
change to the review procedures already established under the FOIE..
If the reference to "5 U. S. C. 552" in subparagraph 1206(f)(1)(C) is
narrowed to "5 U. S. C. 552(a)(4)(F), " which relates to court findings that
information may have been withheld "arbitrarily or capriciously, " then
the impact would, of course, be much more. limited. In that case, all
that would be necessary would be Report language merely clarifying that
the Special Counsel is not intended to have authority independent of a
court finding under 5 U. S. C. 552(a)(4)(F) to investigate certain
withholdings of information. A broader construction of the provision in
subparagraph 1206(f)(1)(C), however, which could be construed to give the
Special Counsel independent, plenary authority to investigate any with-
holdings under 5 U. S. C. 552, would pose serious problems for CIA and
NSA.
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8. Amendment to subsection 5402(a) to ensure that the Merit Pay
System is applicable only to positions un ecr~tTie y` Tasstfica~ion ct.
It is recommended that the following language be added to the end
of subsection 5402, beginning at line 23 of page 173 of the June 1.5, 1978,
Committee Print of IT. R. 11280: "as established under chapters 51 and
53 of this title. " This additional language makes clear that only those
positions at the GS-13 through GS-15 level established under the Pay
Classification Act shall be within the "Merit Pay System" established
under section 5402 of IT. R. 11280. (The proposed additional language
is identical with language adopted by the Senate Governmental Affairs
Committee in its consideration of S. 2640.)
9. Amend proposed Title VII of 11.R. 11280 to exempt from coverage
intelligence agencies. The Administration's proposed Title VII, "Labor-Management Relations,
provided, as a proposed subsection 7162(c), that proposed Subchapter III
would not apply to FBI, CIA, NSA and other intelligence agencies. This
exemption is essential if intelligence agencies are to be able to fulfill
their vital and unique missions without threats of disruptions that could
endanger important national security activities. In the case of CIA and
NSA., such an exemption is based on these agencies' organic laws,
and as regards all intelligence agencies, on the provisions of Executive
Order 11.491. It is therefore recommended that the exemptive provisions
as included in subsection 7162(c) of the Administration's proposed Title
VII to IT. R. 11280, be included in section 7162 of 1T. R. 11280.
*,50 U.S.C. 403, 50 U. S. C. 403a et. seq., Pub. L. 86-36, 73 Stat. 63,
as amended, and Pub. L. 88-290, 78 Stat. 168, as amended.
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