Answer

Yes. The Administration has suggested that certain constitutional constraints Exist on its ability to insulate the Special Counsel from the President's removal power. Its argument rests on the unique role of lawyers in government. It is an argument to which we do not subscribe. We believe that the Special Counsel can constitutionally be made removable only for cause and probably should be. Nevertheless, in the final analysis, an individual holding the position of Special Counsel must develop the reputation and constituency to protect him or her from summary dismissal. Unless federal employees believe that the incumbent Special Counsel is a vigilant and zealous protector of their rights, the Special Counsel will not have done a good job. If the Special Counsel does have this reputation, a President would find it politicallly dangerous to attempt to remove the incumbent, whether or not the removal needs to be for cause. Hence, our preference would be for a Special Counsel removable only for cause; in practice, however, we realize that it is whether the Special Counsel does the job well which will determine whether he or she is insulated from political pressure.

Question 6

Can you tell us whether you agree with the Administration's proposed modification of veterans preference? Please explain your position.

Answer

We agree with the proposal. Some modification clearly is needed to prefer the legitimate right of the recent veterans and to recognize the proper rights of other minorities compared with healthy retirees from military service or non-disabled veterans long since discharged from the service.

Question 7.

You have suggested that the Special Counsel should investigate allegations of a whistleblower in the first instance. If the jurisdiction of the Special Counsel were to be expanded to include not only investigations of violations of law but also allegations of waste and inefficiency it would appear that the Special Counsel would reed access to specialized resources and expertise. While prosecutors routinely make judgements regarding a violation of law, how do you envision the Special Counsel determining cost overruns on a C-5A or the dangers of a swine flue vaccine? What type of resources and expertise would he have available? Parring a reprisal against an individual such as Mr. Fitzgerald or Dr. Morris, what remedial action would he be empowered to take and how?

Answer

What we have suggested is that the Special Counsel have the authority to receive complaints about official illegality, waste, inefficiency, and corruption. Upon receipt of such a complaint, the Special Counsel would make a preliminary determination about whether the complaint should be pursued. Hence, the person lodging the complaint would have to provide the Special Counsel with evidence to indicate that the complaint is legitimate. In the first instance, the complainant would provide the necessary expertise. If the Special Counsel were convinced that the complaint should be pursued, he or she would transmit the substance of the complaint to the agency operating the program. Between the agency's response and the complainant's charge, the Special Counsel should be able to get a good idea of whether something is amiss. Further proceadings in discovery, before a hearing examiner, and before the MSPB should elicit sufficient information for the Board to make a wise decision.

5

In the instance of the Fitzgerald and Morris cases, the job of the Special Counsel would not be to determine whether the C-5A had a huge cost overrun or the swine flu vaccine was hazardous. In each of those cases, the Special Counsel would be looking for a violation of the law. In the Fitzgerald case, the charge was that officials of the Air Force were lying to the Congress in violation of the federal criminal laws. In the Morris case, the charge was that key health and safety studies were being surpressed. It is these charges which will require the attention of the Special Counsel.

The Special Counsel should have a security clearance to be able to review confidential documents. Further, the Special Counsel should have broad discovery powers, challengable before the MSPB, in order to gather information from agency files bearing on a case. Additionally, provision should be made to permit the Special Counsel to hire consultants and expert witnesses, where appropriate. We suggest that the use of such outside experts will be limited because the narrow legal questions which the Special Counsel will be required to examine are within the competence of a good lawyer. Indeed, all we are suggesting is that the Special Counsel look into those charges for which a federal employee could be otherwise removed. If the catalogue of such charges is unclear, the problem lies in the underlying civil service law and not in the proposal for a Special Counsel.

The protection we suggest is before the fact where ever available. Hence, the Special Counsel, in investigating charges of corruption or wrongdoing, would be empowered to seek an adverse action, fine, or other appropriate sanction against an offending federal official. Such charges would only be lodged with the Board after the agency has had an opportunity to consider and act on the case. When the Special Counsel brings charges before MSPB, the federal official charged would have the right to a full evidentiary hearing, with the opportunity to present evidence, cross examine witnesses, and mount a defense. After this trial, the MSPB would decide what remedial action is appropriate. Criminal charges would be referred to the Justice Department. The sanctions that the Special Counsel could seek would be penalties relating to the continued employment of the official. This proposal operates on the simple assumption that government officials, holding the public trust, should not continue working for the government if they violate the law.

Senator SASSER. Our next witness is Mr. Bertrand Harding from the National Civil Service League.

TESTIMONY OF BERTRAND M. HARDING, PRESIDENT,

NATIONAL CIVIL SERVICE LEAGUE

Good morning, Mr. Harding. We want to welcome you here this morning before the committee and look forward to your remarks and observations and would ask you, sir, to summarize them as much as possible.

Mr. HARDING. Yes, sir.

I have a very brief statement from the National Civil Service League, Senator Sasser.

The league supports in general the proposals by the President as reflected in S. 2640. And the league's position is that these are among the most important and positive Civil Service reform proposals since the Civil Service Act of 1883-a measure which the league itself helped to draft. The proposed statute is consistent with the position long taken by the league: To bring about genuine merit in Government performance and to discourage unproductive artificalities of civil service technique. The proposals are consistent in most major respects with the model public personnel administration law prepared by the league.

The legislation is particularly needed at this time when memories of corruption and politization of the Federal service are fresh and when it is so easy and fashionable to deplore failures in Government performance. We sympathize with such sentiments but urge action rather than rhetoric.

The measures proposed will in our judgment: Discourage and punish politically motivated intrusions into the career civil service; protect civil service employees from unjust adverse treatment; more effectively reward superior performance; improve the process of getting rid of incompetent employees; and make the Federal civil service a more flexible and effective instrument to carry out the policies of the Congress and the President.

Now commenting more specifically on the major features of the Administration proposals:

One: We strongly favor the replacement of the Civil Service Commission by: (a) An Office of Personnel Management and (b) a Merit Systems Protection Board. The Office of Personnel Management will assist the President in policy leadership, stimulation, and guidance of the departments and agencies and will provide central personnel services for them. We also favor the proposed increased delegation of personnel authority to departments and agencies because authority to manage personnel must accompany authority to manage programs. The Merit Protection Board will provide an independent objective body to adjudicate employee appeals and complaints.

Two: The grant of investigative and disciplinary powers to the Merit Systems Protection Board will fill a gap that was painfully obvious at the time of the civil service abuses a few years ago. The Board's statutory independence, and the powers given its special counsel will discourage subversions of sound merit system practice. However, it might be preferable for the special counsel to be a nonpolitical career employee appointed by the Board rather than a

presidential appointee subject to Senate confirmation. We applaud the provision for long, nonrenewable terms for the Board members but would prefer 9-year to 7-year terms, both because longer tenure is desirable in such a body and because a 9-year term is more easily staggered among the Board members.

Somewhere in the legislative process, more particularly in the administration handling of the proposed legislation, it appears that the overlapping terms called for-in the original draft proposalsfor the members of the Merit Systems Protection Board got lost in the shuffle and the Board is now apparently a concurrent board. It does not appear to us to be a rational arrangement.

Three: We are gratified that the legislation provides for improved systems for appraising employee performance as a basis for promotion, retention, rewards and other actions. Present performance appraisal methods are largely meaningless and ineffective. Four: It is both fair and wise to grant statutory adverse action appeal rights to nonpreference employees in the competitive service and to de facto career employees in present schedules A and B. All such employees deserve protections against arbitrary actions fully as much as do preference eligibles.

Five: The proposed law strikes an appropriate balance between the needs of veterans for remedial preference and the rights of nonveterans to appointment, tenure and advancement on the basis of qualifications and performance.

Six: It is desirable to liberalize the present "rule of three", as the legislation proposes, so that management officials will have more opportunity to select eligibles particularly qualified for the jobs to be filled. The League has long deplored the unrealistic narrowness of selection from eligible lists. For many, if not most, jobs it is difficult for examining techniques to rank candidates with confidence-inspiring accuracy.

Seven: The proposal for a senior executive service is a promising approach to a difficult problem of public policy. Department and agency heads must be able to select and reassign program management officials in accordance with their own perceptions of program needs and their own methods of operating.

Despite the increased flexibility granted to department heads, the career employees who enter the Senior Executive Service are protected by the percentage limitations on noncareer supergrades in the service, by their eligibility for training and for reassignment to other service posts, and by their retreat rights. There are some aspects of this proposal, however, on which the league may wish to comment on in more detail in the future.

Eight: We applaud the proposal for incentive pay for management level personnel as a long overdue adoption of a lesson learned in private industry.

Nine: We note with approval the streamlining of procedures for disciplining or separating employees found misbehaving or incompetent and for protecting their rights while appropriate action is being taken.

Ten: Finally, the proposed research and demonstration program is highly desirable. There is always room for expanded knowledge on the management of large-scale human enterprises.

The present proposals may be viewed by some as threats to the security and advancement of career employees. We believe that such an attitude is unjustified. The proposed legislation poses no danger to well-qualified, effectively working public servants. Indeed they are offered more security against patronage politics and : higher rewards for good performance than are available in present laws and procedures.

Although no system of administration is free from potential error and abuse the proposed legislation does an admirable job of providing for an efficient Federal service, responsive to national needs a merit system in the truest sense of that term.

Thank you.

Senator SASSER. Thank you very much, Mr. Harding.

There are some questions which immediately come to mind.

In your opinion, what are the most significant safeguards against increased politicization of the Federal Civil Service in this legislative package? Do you think these safeguards are adequate given the increased flexibility granted to Federal managers and to political appointees?

Mr. HARDING. To some degree Senator Sasser, I find myself in Mr. Nader's corner on the question of politicization. There does have to be, in our view, at the top levels of the service a relationship, a good working relationship between career employees and the political people in charge of those activities. Therefore, to the degree that newly appointed political appointees are able to rearrange their top level personnel, this seems to me to be a desirable move. On the other hand, career employees at that level who can make a contention and support that contention that the movement was for purely political, as opposed to management, or operating reasons, those people are afforded an opportunity to appeal to the Merit Systems Protection Board and have their complaints investigated by the Special Counsel.

I think this is a delicate balance which we seek and in my judgment this proposed legislation reaches that balance as effectively as I can suggest.

Senator SASSER. It has been argued that the Merit Protection Board has not been granted enough authority or independence to guard merit principles. Would you give the committee your views on what specific measures Congress might take to strengthen the Merit System Protection Board and to increase its independence? Mr. HARDING. In my statement, Senator Sasser, I suggested, for one, that the terms be extended to some degree, which, of course, gives a degree of independence beyond that which the 7-year term provides. I think the overlapping of those terms would assist in not only independence, but in the effective operation of the Merit System Protection Board in that it would tend to bring a continuity to the operations which it would not have if every 7 years or every 9 years the entire Board was overturned.

I think the nonrenewable term of the appointees to the Merit Systems Protection Board is a fine step. I think that that is helpful in terms of the independence the members of that Board are willing to exercise while they are carrying on their duties. So other than the possible extension of the term and making those terms