CIVIL SERVICE REFORM ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00142R000400010026-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 14, 2016
• Document Release Date: November 7, 2002
• Sequence Number: 26
• Publication Date: February 23, 1978
• Content Type: MF

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OLC 78-0487/1
iOR N] JM FOR: Director of Central Intelligence
THROUGH: Deputy Director for Administration
Deputy Director of Central Intelligence
FROM:
Acting Legislative Counsel
SUBJECT: Civil Service Reform Act
1. (ti) Action Requested: None, for your information only.
2. (U/IUO) Background: Attached for your information is a critique
of the Civil Service Co mission's draft legislation to reform Civil
Service procedures and the Civil Service Commission. At this time it
appears the Commission intends to send this draft fonva.rd, to the Congress
within the next week or so.
The proposed bill is designed to implement the President's
Reorganization Project. This Project made 125 recommendations, many
to be made effective by Executive Order or through directives of the
new Office of Personnel Management (the present Civil Service Commission).
The thrust of the draft legislation appears to strengthen individual
agency responsibilities and authorities; however, in nearly every instance
there would be an entity outside the Agency to ensure compliance eitlper
through audit or an appeals system.
The Agency has serious problems with the bill, which conflicts
squarely with existing law, most importantly your termination authority
(50 U.S.C. 403c), your mandate to prevent disc:iosure of sources and
methods (50 U.S.C. 403(d) (3) and 403g) and the Agency's statutory
exemption from the competitive service (50 U.S.C. 403j).
We have pointed out in the critique--which 0MB has forwarded to
the CSC--that these conflicts arc objectionable! because of the nature
of intelligence operations and the necessary secrecy which, together
with our unique personnel requirements, require flexibility and a
minimum of monitoring by the Civil Service Corrj.ussion or its successor.
STATINTL
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We have been in contact with ONB and Civil Service Commission,
staffers who indicate the Chairman or the Comrmission is strongly
pushing for this legislation. We will recontact CSC Friday, 24 February,
to obtain a firm reading on the Commission's response to our comments.
We will then determine whether it would be productive to provide further
comments elaborating on our position reflected in the attached paper.
If in fact this legislation does move quickly and if our interests are
not adequately addressed in the draft bill., it may become necessary that
the matter be raised at your level with the White House and the Commission,
or both; in its present form, this legislation would have a devastating
effect on our present personnel system and practices.
We will keep you informed of any further developments.
3. (U) Coordination: The Office of Personnel and the Office of
General Counsel have seen this memorandum and concur in the substance
herein.
STATINTI
Distribution:
Orig - Addressee, w/att
1 - DDCI, w/att
I/- ER, w/att
l - DDA, w/o att
1 - OGC, w/o att
1 - OP, w/o att
1 - OLC Subject, w/o att
1 - OLC Chrono, w/o att
OLC:Y`I'1-': sm (22 Feb 78)
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T1DlttF~fi ~7f~ C7F C~~t~TF,~ L~UApt
Office Office of Legislative Counsel
a7 February 1978
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
Dear 11RMIr. Frey:
This letter is in response to your request or our views on the Civgl
Service Commission draft bill, the "Compreh;.-nsive Civil Service Reform
Act.
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 termi.ru
tion authority or CIA excepted status could po?;e serious security
problems for the Agency and compromise the Director of Central
Intelligence's ability to Fulfill his statutory re:3ponsibi.lities 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 furiber study.
Since rely,
STATINTL
Acting Legislative counsei
Enclosures
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C+TA TIAITI
I '01,C 78-0487/a
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Distribution:
Brig - Addressee, w/encl
1 - OGC, w/encl
1 - OP, w/encl
- IC Staff, w/encl
- DDA, w/encl
1 - OLC Subject, w/encl
1 - OLC OMIB Liaison, w/encl
1 - OLC Chrono, w/encl
OLC:YTF:sm (1.7 Feb 78)
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V IE~T. S OF TlIE C _ 1TR_'~i I~ .I' t,I_.fC7?_sl~C.T~ AGE NC:Y ON
'l'IiE C'O=~1.'REli=~_~SIVE CIVIL S? I ~`ICt P,.i_`:1'OIii1't ~~.CT
'T i.tle I prescribes rigid merit system p -incip1u.s that shad a.ppLS tc)
all departments and agencies in the Executi,,-e Branch, including the C14..
The eight merit system principles concern, for example, personnel
recr jtment, performance evaluation and grievance procedures.
As described in Title I, the ,merit srste--_i principles would conflict
,;ith the exempted status of the C!A under 5(J U. S. C. 403j. This ,;ln tccti.cn
has consistently been interpreted as provid, ng CIA with a statutory
exemption fronn the competitive service in order to allow the hgenc.Y
greater flexibility in performing its functions, Furthermore, the
Agency's excepted status is not governed by Civil. Service Corxim.in;aion
excepted position schedules.
The rigid merit system principles in Title I of the proposed Civil_
Ser-price Reform Act would hamper CIA in its staffing flexibility and
requirements. For exa_n_ple, section 202(1.) provides that selection
and a,1,,'ancem1en~ of c p7~____.. s nr ;t be C.':eic "min(.d through njncl
open _omp?" t on. fi Also, sect`.io 1,20 ."Id require CIA to ive
equal consideration to all a t)plicC? s, re :_rl ess of political aftlll.ution4
and aZLG national origins, a Procedure ~Vl!1Ch _ C O111U conflict with 11C C(S '~1Ty
security considerations, _
.Ioreover, section 203 provides that the Government Accounting
Office would conduct audits and reviews to assure compliance with the
lay=!s, Executive Orders, directives, rules and regulations governing
employment in the Executive Branch. It would also assess the
effectiveness and systernaric soundness of Federal personnel rnanagerri n
This Agency is not s7 ect to audit or o-. ersight by the GAO, a l)c>si
don based on security considerations and the need to protect i.nte]li. ;}n< e
sources and methods. T _1e prov isions in section 205 of the proposed
Plan, however, would authorize an entity o?: `side the Agency to i.n uire
its compliance with certain la.: s _.:d rel a` . ~n This sib-tati.on V?, c,:._Sld
conflict with the statutory' responsibi' ! `y oc Director of Central
Intelligence to protect intelligence sources and methods, particularl},
the organization, functions and other persorin_el--related matters of the
Agency from disclosure, as provided by 50 U.S.C. 403(d)(3) and ;.
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The provisions of Title II relating to protection of employee rights,
present the Agency many difficulties. Many of the provisions
interfere v.: it'h, impair, or are completely :inconsistent with present: CIA
statutory au horitie s. Stion 202 would grant subpoena power to the
proooSeCI 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 tale the matter before the Merit Board for final determination.
These procedures would conflict with the authority of the Director of
Central Intelligence to t,crrr.inate employees when in the interests of the
United States (50 U. S. C. ^03(c)), with the Director's mandate to prevent
disclosure of intelligenc=e sources and methods (50 U. S. C. 403(d)(3)
and 403g), with the role o the Intelligence Oversight Board (section
3-1 of Executive Order 12035), and v?ith CIA.'s excepted personnel system.
(50 U.S.C. 4031j).
Under section 205 peg formance appraisal systems must be established
by certain agencies for certain employees. The appraisal systems _ciiizst
also conform to Office of Personnel Management (OPM) regulations.
Howe vrer, there is a discrepancy ben=t een the langua=ge of the legislation
and that of the report concerning; the agencies covered by the legisla-
tion. 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 reo lation. Even. so, the thrust of this section would be to -
subject CIA performance appraisals to OPM control. This would
conflict with the aforementioned 50 U. S. C. 403(d)(3), 50 13. S. C. 403
and 50 U. S. C. 403j.
The procedures in section 205 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 20-1. These features could conflict with the DCI's
termination authority (50 U. S. C. 403(c)), with the Director.-'s mandate
to prevent disclosure of sources and methods (50 U. S. C. 403(d)(3) and
' 03, ) and with the Agency's sta utory exemption from the competitive-
s ~ vicr .
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Sec:--ion 206(a) deals with adverse designed to promote the
E fi'i i= ev O t` he service, inclurjjnc, noV,'115, suspensions and f111'ir) 1 ,'1
for 30 days or less. There are two sets E>~ adverse action 1)Z'ocecl ea.
V hen the suspension is for more than 30 Ca)-;, removals and other'
adverse actions must be processed under procedures similar to t'hos
in section 205. CIA would be covered by fho:se procedures only to
the extent that it would employ preference eligibles. When the
suspension is for 30 days or less, less ri;orous notice, right-to-
reply- and representation procedures would be required for all C[f.
employees. CLA 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 determin_r-f-1
language of Schedule C, which is inapplicable to CIA, as their
Thus, these procedures would tend to create the same statutory confl" c:t
created by the section 205 procedures. Moreover, it should be noted
that while adverse action by CIA management must conform to the
aforementioned procedures, the procedures curiously exclude from
coverage national security adverse -action: taken under 5 U.S.C.
r ! accordance with section 207, any matter to be decided by the
11,Ieri_ Board .would be processed under' ref .ulatioris established by flee
Ierit Board and the decision would be r,Iev.recl by the 1J. S, Court
of Claims or a U. S. Court of _:i) 7ea1:=.. Sl,':fa prlacLicos would also
con_'_ct with the aroremen tionecl < the
,ta'L t