ment, or any person acting or purporting to act under his authority." Also we make no reference to those provisions making it unlawful to "attempt" to do any of the acts made unlawful by section 1. Our references to "employee" and "applicant" cover, respectively, the same individuals described in the bill as "any employee of the United States serving in the department or agency or any person seeking employment in the executive branch of the United States Government."

Turning first to section 1, we shall discuss each subsection. Subsection (a) would make it unlawful for an officer to require or request an employee or applicant to disclose the race, religion, or national origin of himself or his forebears. This provision would hamper the implementation of the Government's policy to ensure that all qualified persons are given equal opportunity to enter Government employment and to eliminate discrimination in that employment on the basis of race, religion, or national origin.

Congress itself has recognized the propriety and necessity for obtaining data designed to prevent unlawful, discriminatory employment practices by directing private employers, in Title VII of the Civil Rights Act of 1964, to make and keep records relevant to the determination of whether such practices have been or are being committed, and to make such reports therefrom as are prescribed by the Equal Employment Opportunity Commission. The Congress also proclaimed in Title VII that it is the policy of the United States to ensure equal employment opportunities for Federal employees and directed the President to utilize his existing authority to effectuate this policy. The assumption that the President's existing authority was adequate is still valid.

The minority data requirements established by the Equal Employment Oppor tunity Commission call for reports showing the total number of employees and the number of American Indian, Negro, Oriental, and Spanish-American employees, by specified occupational categories. Employers are authorized to obtain the necessary information either by visual surveys of the workforce or, at their option, by the maintenance of post-employment records as to the racial or ethnic identity of employees. In the latter case the Equal Employment Opportunity Commission recommended that any such records maintained be kept separate from the employee's records available to those responsible for personnel decisions. The same rules were established for Government contractors covered under Executive Order 11246 and for employers participating in the Plans for Progress program.

The concept of equal opportunity, which inheres in these Congressional mandates, is one of the most cherished goals of our society.

The Federal Government, the Nation's largest employer, was doubly obligated. therefore, to look inward upon itself to assay its own employment practices. We sought the most reasonable and valid method consistent with employee rights which would reveal accurately and objectively the conditions in the executive branch.

In so doing we were aware that the American people have a right to know whether the employment practices of their Government fulfill the promise of their heritage. Correlatively as Government officers we have the duty to provide the public with demonstrably credible reports in response to its legitimate inquiries. Policy proclamations that equal opportunity exists are not enoughcandor and justice require that objective analysis and fair judgments be made. It was to meet these needs that the voluntary minority group status questionnaire was adopted as a means of compiling minority group statistics. The Civil Service Commission adopted the same minority group classifications and followed the same pattern of maintaining data utilized by the Equal Employment Opportunity Commission in the private sector. Desiring to preserve personal privacy to the maximum extent possible, our instructions regarding the use of the questionnaire specify the conditions of employee option, privacy in completing the questionnaire, and confidentiality in collecting and maintaining the data outside normal personnel channels.

The title of S. 3703 reflects the view that the prohibition against an officer requesting information relative to race, religion, or national origin is needed to protect the employees' right of privacy. We are convinced that such a request does not, under the conditions prevailing, constitute a violation of this right. A recent decision of the courts supports this position. Hamm v. Virginia State Board of Elections, 230 F. Supp. 156 (1964), affirmed per curiam. 379 U.S. 19 (1964). The district court's opinion states "*** the designation of race,

just as sex or religious denomination, may in certain records serve a useful purpose, and the procurement and compilation of such information by State authorities cannot be outlawed per se. For example, the securing and chronicling of racial data for identification or statistical use violates no constitutional privilege. If the purpose is legitimate, the reason justifiable, then no infringement results." On this basis the court upheld a Virginia statute requiring that every decree of divorce recite the race of the spouses.

We feel the reasons given above amply justify the use of the questionnaire. Its purpose to aid in carrying out the policy of the Government to provide equal opportunity in Federal employment and to prevent discrimination based on race or national origin-is certainly legitimate. The reason the need to know and to be able to credibly report Government employment conditions-is clearly justifiable to meet the needs of management, of the public, and the need of the Government itself.

Subsection (b) would make it illegal for an officer to call or hold, or sanction the calling or holding of, an assemblage designed to advise, instruct, or indoctrinate an employee in respect to any matter other than the performance of the task to which he is or may be assigned. This means it would be illegal for an officer to hold meetings with employees on such beneficial matters as highway and industrial safety, security consciousness, income tax assistance, or to advise employees in regard to their rights to join unions or to participate in the activities of professional societies. All of these would in most instances be a "subject other than the performance of the task to which he [the employee] is or may be assigned" and, hence, the meaning would be unlawful.

We are convinced that such meetings are beneficial to both the employee and to the Government as his employer. These are enlightened activities that have proved their worth in promoting a harmonious employer-employee relationship. To make them unlawful is unreasonable. To make them criminal is incomprehensible.

To go further, as subsection (b) is written it would preclude all employee training that is not directly related to the task to which the employee is or may be assigned. While a great deal of the total Federal training effort is directly task-related, much of it is not. To cite only one example, at Kings Pointand now at Berkeley-we "advise, instruct or indoctrinate" Federal employees in areas that are by deliberate decision out of the realm of their everyday work. Many other examples of this type of advanced training can be found throughout the Government.

We are confident that it was not intended to preclude the multitude of beneficial activities and training of the type described, but the language of subsection (b) literally construed, would do just that. Section 2(1) of the Government Employees Training Act, provides “* * * for the training of such employees in the performance of official duties and for the development of skills, knowledge, and abilities which best qualify him for performance of official duties." While we oppose subsection (b) in its entirety, if such a provision were actually needed, consideration should be given to the use of language such as that in the Training Act so as not to destroy what is generally recognized as a highly advantageous benefit to employee career development.

Subsection (c) would make it unlawful for an officer to intimate or state to an employee that notice will be taken of his attendance or lack of attendance at any meeting of the type referred to in subsection (b) held by an outside party or organization. As pointed out above, the types of meetings described are not offensive to the constitutional rights of Government employees. On the contrary many of them are highly beneficial to employee development. We do not understand why this subsection (c), unlike subsection (b), differentiates between meetings held by outside parties or organizations and those held by agency officials but in either case we see no reason to prohibit the recording of attendance at any type of meeting unless the meeting itself is actually shown to be improper.

Subsections (b) and (c) do not specify what type of assemblages are considered offensive to the constitutional rights of employees. If there are assemblages or meeting that Congress considers offensive to the rights of employees, they should be identified.

For example, subsection (c) would preclude the evaluation, for personnel purposes, of employee participation in developmental activities conducted by labor, professional, community relations, and other legitimate associations such

as those devoted to self-improvement by education, training, and individual participation. The "Toastmasters" clubs to which thousands of Government employees belong, is a good illustration.

It would also prevent any official recognition for professional service in organizations such as the Federal Bar Association, the Society for Personnel Administration, and the American Medical Association. The subsection would erect a communications barrier between Federal officers and employees that would be detrimental to enlightened personnel practices.

Under subsection (d) an officer would commit a crime if he required or requested an employee to participate in any way in activities not directly within the scope of his employment. Thus a request for blood donors, or in the Civil Service Commission a request to assist in our annual benefit for handicapped children is converted from an act of charity into a criminal act.

Subsection (e) would make it illegal for an officer to require or request an employee to report any activity or undertaking on his part unless it was directly within the scope of his employment. This provision would prevent agency management from requiring employees to disclose their outside employments and activities. That requirement is used frequently by officers in accordance with the Civil Service regulations (5 CFR 735.203) to prevent employee involvement in outside employment or activities that are not compatible with the full and proper discharge of his Government duties. This regulation is an implementation of the prohibition in section 402 of Executive Order 11222 against outside employment which might result in a conflicts-of-interest situation.

When it is borne in mind that the employees affected are in such diverse missions as security, utility regulation, and the procurement of space hardware, it is evident that the "need to know" about outside employment is critical with respect to some occupational groups and justified with respect to all. To preIclude, under criminal penalty, any and all inquiry is clearly unwarranted.

Consider for example the effect of precluding a manager from ascertaining if a materiels inspector has outside employment with the manufacturer he inspects, or if a poultry inspector is engaged in the poultry business, or if a road inspector, sells road-construction equipment on the side. Consider also the legitimate interest of the Government as an employer in the on-the-job efficiency of its employees, particularly where safety and fatigue factors are critical, such as in air traffic controller or similar positions. Responsible management in the public interest requires that legitimate inquiries be made in this area. Subsection (f) would make it unlawful for an officer to forbid an employee to patronize any business that offers goods and services to the general public. We are not certain of the "wrong" it is intended to correct.

While we are fully in accord with the general principle that an officer should not, in the absence of some legitimate reason relating directly to the operation of government, forbid an employee from patronizing a lawful business open to the general public, we know of no need or justification for enacting a criminal provision such as subsection (f).

Under subsection (g) an officer could not require or request an employee or applicant to submit to interrogation or to take a psychological or polygraph test designed to elicit information concerning his personal relationship with any relatives, his religious beliefs or practices, or his attitude or conduct wth respect to sexual matters.

This subsection would prevent the Commission from discharging its responsibilities under the Civil Service laws to ascertain the fitness and relative merits of applicants and employees. The Commission, and other agencies charged with such responsibilities would be prevented from questioning an applicant or an employee about related criminal convictions. Indeed the entire area of immoral conduct as it may relate to sexual matters would be forbidden ground for official inquiry. Under such a proscription we could not assure the public of the suitability of Government employees as the law now requires.

The Commission has a policy against the use of "personality tests." A full statement of that policy was given during the hearing on June 9, 1965, before the Senate Subcommittee on Constitutional Rights. It was explained that personality tests fail to satisfy merit system precepts as they were designed for clinical use and are subject to distortion when used by untrained persons in employment areas for which their use was never intended. The Commission does, however, recognize that such tests are proper when used by qualified psychiatrists or psychologists in instances in which their professional judgment shows the tests

will assist in the total study of an individual in connection with medical determinations for employment, fitness for duty, or disability retirement. The lanzuage in subsection (g) would prohibit valid medical and specifically psychiatric Inquiry by qualified professionals into areas which are the source of significant mental disturbances.

There has been concern within the executive branch for some time regarding the use of polygraphs. On November 3, 1965, the President appointed an InterAgency Committee to study the use of the polygraph in the executive branch. The Committee, as directed, studied the extent of its use; the reliability and validity of the polygraph instruments; the qualifications and training of polygraph examiners; and the ethics of its use, including the question of invasion of privacy.

Attention was given to all aspects of the use of the polygraph in personal investigations, intelligence operations, and criminal cases. The Committee is now in the process of formulating its recommendations to the President; and definitive guidance on the use of the polygraph in the executive branch should be forthcoming in the near future.

We believe the foregoing evidences that the executive branch is not only aware of the possible abuses that may result from the use of the polygraphs but is undertaking appropriate action to properly limit and control its use.

Under subsection (h), it would be illegal for an officer to require or request an employee to support any candidate, program, or policy of a political party by personal endeavor or contribution of money or thing of value.

Under present law (the Hatch Act), Federal employees, except a few top officers, are prohibited from taking an active part in political management or political campaigns. All Federal officers and employees are prohibited by that Act from using their official authority for the purpose of affecting the result of an election. Any such officer in the executive branch would violate the law if he solicited support for a candidate or a party by asking his subordinates to engage in political activity or give money. While Federal employees are entitled to Voluntarily contribute money to political parties and candidates, Federal law prohibits the solicitation of political contributions by one employee from another or the solicitation of such a contribution in a Government building. Thus, in this particular area it is already a crime under 18 U.S.C. 602 for an agency official to require or request his subordinate to contribute money for a political party or candidate.

Subsection (h) would go further and make it a crime for an officer to induce an employee to support a candidate, program, or policy of a political party. While we are strongly in favor of barring any official pressure on Government employees to assist in political management or campaigns, we are unsure of the extent of the prohibition in subsection (h) wherein it refers to the "support" of a "program or policy or any political party." For example, Medicare was a program of the Democratic Party. Would it be unlawful for an officer in the Department of Health, Education, and Welfare to require an employee to work to support the Medicare program now that it is law? In other words, would it be illegal to perform his duties? We are sure the intended answer is "No" but the language of the subsection is unclear.

The type of abuse against which this subsection is directed is but a single facet of the larger problem of election-law reform. As stated in the President's Jessage of May 26, 1966, the executive branch recognizes that present statutes have not achieved the valid aims sought by the Corrupt Practices Act and the Hatch Act and seeks legislative changes to correct those defects.

Also, S. 1474, recently enacted by Congress, creates a bipartisan commission to study Federal laws limiting political activity by officers and employees of the Government. Thus, a means exists for a study and analysis that should precede changes in this complex area of law. The Civil Service Commission recommends that the consideration of this subject be postponed pending report of this bipartisan commission.

Subsection (i) would make it a crime for an officer to coerce an employee to invest in Government bonds or securities or to make a donation to any institution or cause, but it does not prohibit an officer from using appropriate publicity to persuade an employee to voluntarily invest in such bonds or securities or to make such a donation.

In substance, subsection (i) reflects current executive branch policy. In the case of Savings Bonds, the policy is stated in a memorandum to the heads of departments and agencies, dated June 14, 1966, from the Chairman of the Inter

departmental Savings Bond Committee. That memorandum emphasizes that the decision to purchase or not purchase is up to the employee and "he has a perfect right to refuse to buy and offer no reason for that refusal." In the case of solicitations for charitable donations, the policy of true voluntary giving is stated in section 5.2 of the Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Agencies issued in May 1963. This policy expressly forbids "compulsion, coercion, or reprisal" directed at an employee be cause of the size of his contribution or his failure to contribute. Heads of agencies are told that supervisory personnel and campaign workers are to be expressly informed of that policy.

With respect to breaches in such policies by managerial employees, it should be noted that every department and agency has established grievance procedures. These procedures have been developed in consultation with employees or, in many cases, through negotiated agreements with recognized employee organizations. These procedures are an appropriate avenue for correction of improper administrative conduct in bond or charitable solicitations just as they are for other improprieties that may occur in the work setting. The proposed use of the courts to enforce already existing personnel policies without regard to estab lished grievance procedures is unwise and unnecessary.

Subsection (j) would make it unlawful for an officer to require or request an employee to disclose his assets or liabilities or his personal or domestic expenditures or those of a member of his family. However, the subsection does not apply to an employee who has authority to determine final agreements which fix the tax or other liability of any person or entity, or the provisions of contracts which require expenditures in excess of $100.

Under the authority of Executive Order 11222 and Part 735 of the Civil Service regulations, a relatively small percentage (4.6%) of officers and employees in the executive branch are required to disclose their outside employments, their financial and real estate interests, and certain of their creditors. The format for reporting prescribed by the Commission does not require disclosure of “domestie expenditures", but specifically excludes from the disclosure requirement debts for household and living expenses, education, vacation, and similar expenses. It does not require listing of real estate occupied as a residence.

The most significant difference between the present practice in the executive branch under Executive Order 11222 and the practice that would exist if subsection (j) were enacted is in the coverage of officers and employees. This matter of coverage is of course unrelated to the legality or indeed the propriety of the disclosure requirement itself. It is quite evident that the proponents of S. 3703 agree with the legal validity of such a requirement. Thus, in the final analysis, subsection (j) offers an alternative to the present practice.

Our present disclosure requirements are designed to assist employees in avoiding conflicts-of-interest situations and to supplement the provisions of the criminal law (18 U.S.C. 208). It is important to keep in mind that while the criminal law can only provide punishment after a violation is discovered, the regulatory provisions relative to disclosure and counseling are designed to prevent violations from occurring.

We are of the opinion that the agencies in the executive branch, having a detailed knowledge of their own operations and missions, are in the best position to decide which officers and employees should file statements in accordance with the Commission's standards. Such decisions should be left with those responsible for the supervision and control over the officers and employees involved. To remove this administrative discretion and in lieu thereof substitute a flat inflexible legal limitation with attendant criminal penalties would, we believe, be injurious to all concerned. Therefore, we oppose the provisions of subsection (j). It would be illegal under subsection (k) for an officer to require or request an employee who is under investigation for misconduct to submit to interrogation which could lead to disciplinary action without the presence of counsel or other person of his choice if he so requests.

While the general proposition advanced in subsection (k) has an affirmative objective, we fear the language is too broad and will result in serious complications in day-to-day personnel operations.

In formal disciplinary proceedings an employee should have counsel or other representation if he requests it. This policy is in effect in procedures under the jurisdiction of this Commission. For example, when an appointee who is serving subject-to-investigation is interrogated by a Commission representative about