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CONDUCT OF DISCIPLINARY HEARINGS BY COAST

GUARD COMMISSIONED OFFICERS

MONDAY, MAY 5, 1947
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met at 9:30 a. m., pursuant to adjournment, in committee room No. 346, Old House Office Building, Hon. Louis E. Graham (chairman of the subcommittee) presiding.

Mr. GRAHAM. Mr. Spingarn, I believe you wanted to finish and the others accompanying you wanted to testify.

Mr. SPINGARN. Yes, sir.

Mr. GRAHAM. One of our members of the Pennsylvania delegation died last night. They want to call us together a little later to make arrangements.

The second thing is, we have another matter on the judgeship in Florida. I do not want to hurry you in any way.

Mr. SPINGARN. Right.
Mr. GRAHAM. All right, sir.

FURTHER STATEMENT OF STEPHEN J. SPINGARN, ASSISTANT GENERAL COUNSEL, TREASURY DEPARTMENT, ACCOMPANIED BY CAPT. ALFRED C. RICHMOND, CHIEF, PLANNING AND CONTROL STAFF, COAST GUARD, AND CAPT. KENNETH S. HARRISON, CHIEF COUNSEL, COAST GUARD

Mr. SPINGARN. Well, Captain Richmond was in the middle of his testimony when we broke off the other day. So I think the most orderly thing would be for Captain Richmond to conclude.

Mr. GRAHAM. All right, Captain. Captain, may I suggest in view of the little different arrangement, you keep your voice up.

Captain RICHMOND. Yes, Mr. Chairman.
Mr. GRAHAM. Proceed.

Captain RICHMOND. Mr. Chairman, one point I would like to clear up is in connection with the question by Mr. Keating in regard to figures with respect to investigations, hearings, dismissals, and suspensions. I gave those figures. At the time the figures I gave indicated so many suspensions and revocations of certificates and one point I did not make clear was this: Many of these people that are subject to hearing hold more than one certificate, and if they are up for hearing on misconduct and found guilty both certificates are acted on.

Mr. GRAHAM. Would it interrupt you if I asked at this point to

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clear up another thing. Would there be a separate penalty on both certificates ?

Captain RICHMOND. No, sir.
Mr. GRAHAM. Thank you.

Captain RICHMOND. The theory is that for misconduct both certificates are subject to the jurisdiction. Also, officers in many instances hold a license and also hold a certificate, and if the charge is misconduct, the certificate is taken away at the same time, and therefore, these figures I am going to put in the record, may appear inconsistent.

Mr. Keating asked for the total dismissals, suspensions, and revocations. The total dismissals, suspensions, and revocations exceed the total number of hearings and there is an apparent discrepancy.

Mr. GRAHAM. Will you submit that now to the reporter so he can place it in the record at this point.

Captain RICHMOND. Yes, sir.
Mr. GRAHAM. This will be placed in the record at this point.
(The statement referred to is as follows:)

OFFICERS

4,303 investigations; 735 hearings; 109 dismissals; 635 suspensions and revocations.

Many engineers have two licenses, steam and Diesel. Most officers also possess certificates, and if found guilty of misconduct all documents are suspended or revoked.

CERTIFICATED SEAMEN

case.

13,597 investigations; 3,027 hearings; 288 dismissals; 2,910 suspensions and revocations.

Approximately 33 percent of all seamen hold more than one certificate and most licensed officers also hold certificates. If the individual is found guilty of misconduct, all documents are suspended or revoked. Approximately 87 percent of all cases involve charges of misconduct.

Go ahead, Captain.

Captain RICHMOND. Last week, I was explaining our procedures as they apply to these hearings. The case is heard by an examining officer. Both the Government, through the investigating officer, acting as prosecutor, presents its case, and the person charged presents his

At the conclusion thereof the examining officer can render his decisions, which may be “not guilty" and the whole thing is dropped, or the certificate revoked or suspended. Upon that suspension or revocation it is within the province of the hearing officer to place the person charged on probation.

Mr. GRAHAM. Is it possible for the defendant to waive hearing ?
Captain RICHMOND. No, sir; we go ahead with the hearing.
Mr. GRAHAM. You go ahead with the hearing?
Captain RICHMOND. He can plead guilty.
Mr. GRAHAM. There is no such thing as a waiver?
Captain RICHMOND. No, sir.
Mr. GRAHAM. Go ahead.

Captain RICHMOND. At that time that the decision is rendered it is explained to the person charged that he has a right to appeal and that he must appeal within 30 days to take advantage of that and, if necessary, we even offer to help him brief his appeal if he has not the facilities for it. That appeal is taken to the district commander, and if the district commander does not reverse the hearing officer the individual has a further appeal to the Commandant of the Coast Guard.

That, in general, is the procedure now practiced by the Coast Guard.

Captain HARRISON. Could I interrupt one moment to say the procedure has been changed to provide that appeals now will only lie with the Commandant. Up to December 11, as he explained, it was correct, but has since been changed.

Captain RICHMOND. Thank you. There are just a few points further I want to make. One is the success or failure of this program depends upon the immediate investigation of these complaints. Second, the constant availability of the hearing officer, because a merchant vessel, as explained by Mr. Spingarn, is usually paid off within 24 hours after its arrival in port, and the crews disperse. They register in union halls and take some time off and then usually sign on some other vessel.

In order to have necessary testimony it is necessary to hold the hearings relatively soon after we receive the complaint and investigate to find out if there is a prima facie case.

As to the present time I would refer to our first district. In the First Coast Guard District, which is the New England District, we have at the present time appointed two examiners, two officers as examiners. They cover the ports of Boston, Rockland, Portland, and Providence. It is necessary to have two in order that we can provide this “on the spot” hearing and, even with two officers, we have difficulty because if three cases pile up at the same time, it is not possible to hold the hearings as soon as we like to.

Mr. GRAHAM. Are they both investigators and judges ?

Captain RICHMOND. No, sir; they are examiners now. They only hear the cases and, as I mentioned, since December 11, such other Coast Guard work as they do is confined to vessel inspection or other work that I listed in the early part of my statement. Nothing to do with investigative work.

Mr. KEATING. Those two men are full time on that duty ?

Captain RICHMOND. No, sir; they would not necessarily be engaged covering those four ports full time, only in covering that type of work. They are available for special service, dry dock examination, inspection of new construction and general work having nothing to do with discipline.

Mr. KEATING. Other Coast Guard officers conduct the investigation? Captain RICHMOND. Yes, sir. Mr. KEATING. That is all done by officers? Captain RICHMOND. Yes. We feel that the present system is sound. We feel that this suggested legislation is a most economical and efficient way of doing it because, as I say, we have demonstrated the need of having these on-the-spot hearings and if we have officers that can do other types of work and call them in as needed, you have them available, as long as you do not have them connected with investigations.

Mr. KEATING. The previous investigations were conducted through the Department of Commerce?

Captain RICHMOND. Through the Bureau of Marine Inspection and Navigation.

Mr. KEATING. Did they have people on the spot to conduct the hearings?

Captain RICHMOND. Yes. They did not at that time hold as many hearings as we have held. For one reason, they did not have the investigative staff set up and they waited for a complaint to come to the office and they would in turn attempt to get the witnesses to come to them. By that time, many of the witnesses were dispersed and the cases could not be prosecuted because you did not have the evidence to prove the case one way or the other.

Summarizing this, we feel that the examining function is presently performed in the most economical fashion possible by individuals who by training, experience, and interests insure a fair and impartial hearing to all, and secondly, that this bill has been drawn for the purpose of continuing this sound practice. We feel that failure to pass this bill will necessitate the creation of additional positions in Government with no comparable decrease in other personnel.

It is very difficult to give a specific estimate for two reasons. One is at first we have only a very general idea as to what ratings these examiners will have when appointed. We have estimated that they will probably be P-5 positions. If we attempt to set that off against the salaries of the officers involved we feel on the minimum number of examiners we believe necessary that the extra cost would run in the neighborhood of $150,000, but that is an estimate pure and simple.

Mr. KEATING. You mean the extra cost of others doing it?
Captain RICHMOND. Under our present system.
Mr. GRAHAM, Have you

finished ? Captain RICHMOND. Yes, sir.

Mr. GRAHAM. All right, Mr. Spingarn, is there anything you want to add now?

Mr. SPINGARN. Yes, I will take only 2 or 3 minutes, Mr. Chairman.

We have already explained section 1 of the bill, which provides that commissioned officers of the Coast Guard may hold hearings in lieu of civil-service examiners.

I would like to briefly mention section 2 of the bill so that will be covered. That is made necessary by section 5 (c) of the Administrative Procedure Act, which is the so-called separation-of-functions provision of the act. Among other things, that section provides that officers who preside at hearings shall not be responsible to or subject to the supervision or direction of any officer or agent engaged in prosecuting or investigative functions for any agency.

The Coast Guard is organized on a regional basis with 14 districts, with a Coast Guard officer in charge of its activities in each district. Since that Coast Guard officer, known as the district commander. supervises the investigative and prosecuting functions in the district. there is some question whether officers who are examiners can be under his jurisdiction, even with respect to their nonhearing functions. This hearing work is only part of the work of the Coast Guard officers who act as hearing officers. The other work is administrative and inspection work not related to hearings, but there is the question whether under the Administrative Procedure Act, such an officer can be subject to the supervision of the Coast Guard district commander. Obviously, it is impossible for the Coast Guard Commandant in Washington, Admiral Farley, to supervise the work at the district level, so, as a necessary corollary, the bill also provides that as to their nonhearing work only, these Coast Guard officers who hold hearings will be subject to the supervision of the district commander.

Now, all I have to say in addition to the above is this: as we have pointed out, we think this bill is the most economical and efficient way of handling the matter and a substantial saving will result and it will mean we will use Coast Guard personnel who will be fully occupied, rather than having civilian examiners who will be busy only part of their time and who we will not be able to use for the rest of the time.

However, if the committee, for any reason, should not agree with that reasoning, we sincerely hope you will send us back to the Appropriations Committee with a statement of your views on the matter which will enable us to obtain sufficient funds to carry on this work under the provisions of the Administrative Procedure Act. Moreover, in view of the fact that without the fault of anyone, we have been treading water on this for several months, we hope in such event you will give us a legislative deferment of 6 months because we are confronted with the June 11 deadline and we could not possibly recruit and get civilian examiners by that time, so even if the committee should decide against the bill, we hope we will get a deferment on the requirements of the Administrative Procedure Act.

Mr. KEATING. How would you feel, the men and officers of the Coast Guard, to have the United States Navy review all courts-martial proceedings of men and officers of the Coast Guard? Would you be opposed to that?

Mr. SPINGARN. You mean the Navy would review Coast Guard courts-martial?

Mr. KEATING. Yes.

Mr. SPINGARN. I assume we would be opposed to it while the Coast Guard is under the Treasury. While it is under the Navy, no.

Mr. KEATING. Who are they under now?

Mr. SPINGARN. The Treasury Department; Coast Guard is under the Treasury in time of peace and under the Navy in time of war.

Mr. KEATING. You, in time of peace, would not want to have the United States Navy investigating and conducting cases against men and officers of the Coast Guard ?

Mr. SPINGARN. No, sir. I do not think so. Mr. KEATING. That is precisely the attitude of the men and officers of the merchant marine that they do not care to have the Coast Guard do that either. They feel that the Coast Guard is a military outfit which is either too severe or tends to be tog severe, depending upon your point of view, and I wonder how much merit there is that.

Mr. SPINGARN. Could I say something on that, Mr. Keating?
Mr. KEATING. Yes, sir.

Mr. SPINGARN. It is true the Coast Guard is organized on a military basis. So are other agencies of the Government, which are largely civilian, such as the Coast and Geodetic Survey. The Coast Guard during time of peace is devoted to saving life at sea, antismuggling, and aids to navigation, which are its principal activities. It is true they serve under the Navy in time of war, just as you served under the Army and as did other civilians, but the Coast Guard is not a truly military organization.

In the second place, I think you want to consider that the whole purpose of section 4450 is to improve safety at sea. The Congress found

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