LETTER TO JAMES M. FREY FROM CHARLES A. BRIGGS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000400570009-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: October 23, 2008
• Sequence Number: 9
• Publication Date: September 7, 1984
• Content Type: LETTER

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7 SL ? 1984
OLL 84-3347
Mr. James M. Frey
Assistant Director of
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This is"in response to your request for the views of the
Central Intelligence Agency (CIA) concerning the 27 July 1984
Justice Department letter commenting on the CIA proposed
classified information amendment to the Office of Personnel
Management (OPM) revised bill on denial of annuities for
certain felony convictions.
In its letter, the Justice Department accepted CIA's
position that determinations with respect to annuity
divestitures under the Central Intelligence Agency Retirement
and Disability System (CIARDS) should be made by the Director
of Central Intelligence, not the Director of OPM. However, the
Justice Department opposed CIA's further suggestion that
determinations.involving CIA employees covered under the Civil
Service Retirement System should be made by the Director of
Central Intelligence if the employees' duties involved
classified activities. In lieu of the CIA proposal, Justice
has suggested that the OPM bill require the promulgation of
regulations, with the concurrence of the Director of Central
Intelligence, to protect classified information while retaining
OPM administrative control of determinations under the Civil
Service Retirement System.
While we can appreciate Justice's concerns, we believe that
the Justice proposal is nonetheless unworkable. The potential
for inadvertent or other unauthorized disclosure of classified
information is significant when you provide such information to
people not steeped in classified information and not
disciplined in security practices and procedures. Moreover,
notwithstanding the promulgation of protective regulations,
there would still be inevitable attempts at graymail by
individuals in danger of losing their annuities. This reality
would make it very difficult to revoke an annuity in cases
where classified information was involved.
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In order to deal with the problem of protecting classified
information, while satisfying the Justice Department's concern
that such decisions be centralized in OPM, we propose that the
following new section (f) be added to the OPM bill:
(f) With,respect to an individual whose service involved
..classified activities, the head of the agency with-
cognizance over such activities shall be authorized to
certify to OPM the individual's length of service, the
quality of the individual's work, and to the extent
security considerations permit, the nature of the
individual's work. Every such certification shall be
deemed to be final and conclusive and not subject to any
administrative or judicial review pursuant to this or any
other provision of law. Upon the issuance of such a
certification, the agency head shall not be required to
disclose any further information concerning the individual
or his work with the agency. At no time may the individual
disclose any classified information without the express
written authorization of the agency head.
We believe that this certification procedure would satisfy
Justice's concerns while ensuring the protection of classified
information and minimizing the potential for graymail.
We appreciate the opportunity to comment on the Justice
letter. We would be willing to work with OMB and Justice to
resolve this issue.
Sincerely,
Charles A. Briggs
Director, Office of Legislative Liaison
Distribution:
Original - Aad-reggpP
1 -
(OGC)
1 -
OP)
1 - D OLL
1 - DD/OLL
1 - OLL
Chrono
1 - LEG
Subject (Felony/Annuities)
1 - ROD
Signer
OLL:LEG:ROD:sm (6 September 1984)
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_Office of Legislative and Intergovernmental Affairs
2 4 MAY 1984
Honorable David A. Stockman
Director
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. S#ocVman:
You have asked for this Department's views on separate
letters from the Department of State, the Central Intelligence
Agency (CIA), and the Office of Personnel Management (OPM),
commenting on the proposed bill prohibiting the payment of
annuities to federal employees convicted of certain crimes.
The bill was originally drafted by OPM, but substantial
changes in this initial version were recommended by the
Department of Justice in a December 12, 1983 memorandum
transmitted to OPM. The letters from the Department of State
and the CIA comment on our December 12, 1983 proposal. In
response to all of these submissions, the letter from OPM,
dated May 4, 1984, offers a new draft of the bill, which
adopts many of this Department's changes,. but., unlike our
proposal, limits the bill's coverage to civil service retirement
annuities and military retired pay, thereby explicitly excluding
the CIA and State Department retirement systems.
For reasons described in detail below, we believe our
December 12, 1983 proposal, with certain modifications,
should be adopted. Contrary to OPM, we feel that non-civil
service retirement annuities, such as those of the CIA
and State Department, should be covered by the disqualifying
penalties of these amendments. We also believe, contrary to
the CIA, that OPM should administer the application of these
disabilities to employees of all civilian. retireip"t;p.systems
.covered by the bill, although we may be willing. to a consider
this latter conclusion where an agency with its own pension
system can provide compelling reasons favoring its independent
administration of these penalties.
I. Background
This Department's December 12, 1983 proposal, which adds
several new subsections to 5 U.S.C. 6 8312, would grant OPM
authority to deny payment of an "annuity" to any individual
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or his survivor or beneficiary if OPM makes three findings.
First, the individual must have been convicted of one of
certain crimes committed in connection with his employment.
Second, the crime must have been listed before its commission
in regulations promulgated by the Attorney General. Finally,
OPM must find "the circumstances regarding the commission of
the offense and the seriousness of the crime are such that
the interests of justice require denial of the annuity." The
bill would also establ.ish a parallel system giving the Department
of Defense similar authority with respect to military "retired
pay" subject to its administration.
In its 1.9tter--r-.the State Department appears to support
our amendment of 5 U.S.C.-S 8312, but indicates that our
draft might not apply to the Foreign Service Retirement and
Disability System. Accordingly, the State Department seeks an
opinion whether an Executive order extending the provisions
of the draft bill, once enacted, to this separate retirement
system would be a sufficient basis for the denial of an .
annuity to a Foreign Service participant. The CIA, on the
other hand, expresses the view that the draft bill would
apply to the CIA Retirement and Disability System (CIARDS),
but that the exercise by OPM of discretionary authority over
CIARDS would be an unwelcome intrusion into this separate
retirement system. Thus, the CIA recommends that the draft
bill be amended to exclude CIARDS from the reach of OPM's
authority. After the bill is enacted, the CIA suggests, the
restrictions in the Act could be extended to CIARDS by Executive
order. 1/
1/ The CIA also recommends that the national security-related
provisions of 5 U.S.C. ? 8312 be updated by adding the Intelligence
Identities Protection Act, 50 U.S.C. ?5 421-26, to the list
of pension disqualifying crimes. We have no objection to
including these offenses within the purview of 5 U.S.C. ? 8312,
but do not believe there is any need for a specific amendment
of the statute in this regard. The offenses in 50 U.S.C.. ?6 421-
26 could appropriately be included in regulations which would
be promulgated by the Attorney General under our,!/4ract bill and
which would list offenses the conviction of which could result
in pension denial. Specifically, 50 U.S.C. ?5 421-26 would
fall within the-category of offenses described in proposed
subsection (f)(1), which our draft bill would add to 5 U.S.C.
5 8312 -- i.e., any offense which involves "intentional misuse
of federal public office punishable by imprisonment for a
term of 3 or more years." Including 50 U.S.C. 55 421-26 in
the regulations is preferable to.specifically including these
sections in the mandatory pension denial provisions of 5
U.S.C. ? 8312 since the former route would assure that a
pension is denied for conviction of.these title 50 violations
only if they are job-connected and only where the circumstances
dictate that pension denial is an appropriate penalty.
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In its May 4 letter, OPM has generally accepted the changes
contained in our December 12, 1983 redraft, but proposes,
among other things, that the bill cover only civil service
retirement annuities and military retired pay. Thus, CIA and
Department of State employees would not be subject to the bill's
penalties under OPM's latest version.
II. Analysis
These letters raise four separate questions with respect
to the coverage and administration of the proposed statutory
penalties. As a preliminary matter, the first issue presented
is whether, La-addition to covering military retired pay, the
disqualifying penalties imposed by the proposed amendment
should apply generally to all federal government annuities,
or only to civil service annuities. Assuming the penalties
are generally made applicable to all government annuities,
the second question we must address is whether this coverage
should be accomplished with respect to non-civil service
pension systems, such as the CIA and State Department, by
issuance of an Executive order or by statutory amendment.
The third issue, discussed by the CIA, is whether denial of
annuities to individual employees should be made by each
retirement system separately, or should OPM be vested with
this responsibilities for all covered civilian retirement
annuities. The final and most narrow question, raised indirectly
by OPM's proposed redraft of the bill, is whether employees
should be subject to denial of their military pensions if
they commit a covered felony in the course of federal civilian
employment. As discussed below, we conclude our December 12,
1983 draft offers the most appropriate resolution to all of
these issues.
(A) Coverage
With respect to the initial question of coverage, we believe
all government "annuities," as defined in ? 8311, including
the CIA and the Department of State retirement systems,
should be within the scope of this amendment... In,our view,
there is no justification for imposing statutoryr'4?nslon
denial on civil service employees and military personnel, but
not on Foreign Service and CIA personnel subject to separate
retirement systems. The current penalties in ? 8312 already
cover these systems, denying the receipt of any "annuity" or
"retired pay" to individuals convicted of certain statutorily
enumerated crimes. As defined in ? 8311, the term "annuity"
generally covers, with perhaps only a few exceptions, all
government retirement systems, including the Department of
State and the CIA. Thus, in adopting the same coverage as
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the other subsections of S 8312, this Department's proposed
bill continues this general application, which we believe is
the wisest and fairest approach. 2/
(B) Statutory Amendment Versus Executive Order
Given this broad coverage, we also believe it would
be clearly preferable to extend this disability to non-civil
service pension systems by statute, as contemplated by our
proposed draft, rather-than by Executive order. Without an
amendment of 5 U.S.C. 6 8312 in this regard, extension of
this provision_to-Eoreign Service and CIA personnel may
simply not come about, and unequal application of the
statute would follow. Moreover, absent a statutory provision
establishing authority for pension denial under these other
retirement systems, or at least establishing authority for
the promulgation of regulations to make these other systems
parallel to the federal system in all respects, it is unclear
whether all of the non-civil service pension systems could be
made subject to these limitations by Executive order.
(C) Administration
A third question raised by.the letters concerns administration
of these provisions by the civilian non-civil service retirement
systems. Under the existing disqualifying provisions of 5 8312,
pension denials are apparently made by the administrators of
each separate pension system, including the CIA. In light of
this decentralization, the CIA argues that OPM's "exercise of
discretion over CIARDS" -- as the current draft bill contemplates
-- "would be an unprecedented intrusion into [the CIA's] wholly
internally-administered retirement system." Although not
discussed by the CIA, the other non-civil service retirement
systems may well adopt a similar position.
In our view,'there are strong reasons for placing the
administration of these new penalties in only two agencies,
OPM and the Department of Defense. Unlike the existing
:I
2/ Although the State Department's letter appears to suggest
that its employees might not be subject to this penalty under
the bill, based upon informal conversations this Department
has had with the Legal Adviser's office we understand they
now are in agreement with our construction.
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provisions in 9 8312, which automatically disqualify employees
from receipt of a pension upon_conviction of certain crimes,
the proposed amendment would invest the administering agencies
with wide discretion in deciding whether to deny a pension to
employees convicted of the crimes listed in regulations promul-
gated by the Attorney General. Thus, in contrast to the existing
penalities, there is a clear need in the case of these new
sections to develop administratively uniform standards for all
agencies in the denial. of pensions. Placing control in these
two agencies furthers this goal and avoids the enforcement by
each of the independent pension systems of different standards
for denying pensions to employees.
Despite these advantages, we recognize the possibility that
particular pension systems may have special reasons for favoring
their control over the denial of annuities under these provisions.
In light of the many agencies whose interests might be affected
by decentralization,"we suggest that the views of OPM and other
agencies with separate pension systems be solicited on this
question. If the CIA and these other agencies can demonstrate
that such control would seriously undermine the operation of
their particular programs, we would be prepared to reconsider our
view that OPM and DOD should administer all of these restrictions.
(D) Military Pay
We have one final comment to make regarding the treatment
of military retired pay under the latest OPM bill. Our draft
provides in proposed 5 U.S.C. 5 8312(e)(1) that the Department
of Defense may deny military retired pay to an individual or a
survivor or beneficiary if the individual is convicted either
of one of the enumerated offenses in connection with his or her
service as a civilian employee or of such an offense within the
purview of the Uniform Code-of Military Justice. However, the
OPM draft bill eliminates the first category of offenses --
i.e., those which occur in connection with. civilian employment
-- from possible pension denial by the military. As a result,
a military member can be denied military retired pay under the
bill only for those offenses which occur while he, or she is a
military member and subject to the military -just. eC e.lrystem.
In our view, the OPM restriction on denials of military
retired pay would result in an unnecessary loophole and an
arbitrary distinction in the operation of the bill between
federal civilian employees and former military members later
serving as civilians. Thus, for example, under the OPM draft a
retired 20-year military member receiving a military pension
and serving as a federal civilian employee could not lose his
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or her military pension as the result of being convicted of a
job-connected felony, such as bribery, committed in connection
with his or her civilian employment. On the other hand, a 25-year
civilian employee with no military pension would stand to lose
his or her entire civilian annuity for the same offense.
Movement from the military to the civil service for purposes
of 5 U.S.C. ? 8312 should not result in any different pension
denial rules than movement between civilian agencies. The 25-
year civilian in the example above could lose his or her pension
under our bill whether or not the offense was committed during
the employee's tenure in the civilian agency in which the
employee's pension rights were built -- even if the agency has
its own ret-irement"79ystem. Thus, under our bill a former CIA
employee eligible for a CIA pension could lose this pension as
the result of a felony conviction occurring during later employment
with another federal agency. Former military members should
not be treated differently from other government employees. 3/
Finally, although not raised in any of the letters, we
recommend our draft be amended in one respect -- to make it clear
that the standard for denying a pension must be related to the
maintenance of the integrity and efficiency of the government
service. The Department's prior draft, which would authorize
denial of a pension when required to further "the interests of
justice," could be interpreted as furthering a criminal law
enforcement goal, thereby subjecting the statute to challenge
under the Double Jeopardy Clause, U.S. Const. amend. V. In
order to insulate more fully the statute against constitutional
attack, we propose that denial should be permitted only "when
the efficiency and proper administration of the Government
would be furthered by denial of the annuity." In addition, we
believe OPM and the Department of Defense should be specifically
authorized to promulgate regulations implementing this standard.
3/ Current law in 5 U.S.C. ? 8312 does not impose the artificial
restriction on denial of military retired pay reflected in the
OPM draft. That is, it does not require that. the. offense have
been committed during a period of military servii: for mandatory
denial of military retired pay to apply. Likewise,,an amendment
of ? 8312 should not impose such a restriction. It is essential
that this bill apply fairly and equally throughout the government.
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A copy of the new draft bill incorporating these changes and
other clarifying amendments is attached.
Sincerely,
(Signed.. Robert A. McConnel]
Robert A. McConnell
Assistant Attorney General
Office of Legislative and
Intergovernmental Affairs
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Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, that
section 8312 of title 5, United States Code, is amended by
adding at the end thereof the following:
"(d) The Office of Personnel Management, after notice and
opportunit,y fpr hearing, may deny payment of an annuity to an
individual or his or her survivor or beneficiary on the basis of
the service of the individual which is creditable toward the
annuity if the office of Personnel Management finds that
"(1) the individual is convicted of any felony
described in subsection (f); and
"(2) the circumstances regarding the commission of
the offense and the seriousness of the crime are such that
the efficiency and proper administration of the Government
would be furthered by the denial of the annuity.
"(e) The Department of Defense, after notice and opportunity
for hearing, may deny payment of retired pay to an individual or
his or her survivor or beneficiary on the basis of the service of
the individual which is creditable toward the retired pay if
the Department of Defense finds that --
"(1)-(A) the individual is convicted of any felony
described in subsection (f) in connection with his or
her service as a civilian employee; or
"(B) the individual is convicted of an offense
within the purview of a current article of the Uniform
Code of Military Justice (or an earlier article on
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which the current article is based) on the basis of
charges and specifications-describing a violation
described in subsection (f); and
"(2) the circumstances regarding the commission of
the offense and the seriousness of the crime are such that
the efficiency and proper administration of the Government
would -be-furt-h red by the denial of the retired pay.
"(f) Subsections (d) and (e) apply to any violation of
federal criminal law listed in regulations which may be promul-
gated under this subsection by the Attorney General and committed
after the promulgation of such regulations (or after the addition
of a particular offense through an amendment of the regulations
so promulgated). The list of violations in the regulations shall
be limited to any offense (other than an offense described in
subsections (b) or (c)) which involves:
"(1) intentional misuse of federal public office
punishable by imprisonment for a term of 3 or more years;
"(2) intentional violence or injury to another person
punishable by imprisonment for a term of 5 or'more years if
committed in connection with the individual's federal
employment;
"(3)- intentional damage to or destruction of federal
property punishable by imprisonment for a term of 5 or more
years if committed in connection with the individual's
federal employment;
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"(4) the manufacture, distribution, or dispensing,
or the possession with intent to manufacture, distribute,
or dispense, a controlled substance, punishable by imprison-
ment for a term of 3 or more years if committed in connection
with the individual's federal employment; or
"(5) an attempt or conspiracy to commit any of the
above.-
For purposes of this subsection, an individual's conduct is
intentional if it is the individual's conscious objective or
desire to engage in the conduct."
"(g) The Office of Personnel Management and the Department
of Defense are authorized to promulgate regulations for imple-
menting their responsibilities under. subsections (d), (e) & (f)
of this section."
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