Now, anyone who makes a report to the Government, is going to keep a copy that is, if he is prudent. The question comes-where is the confidentiality?

This is my concern as a counsel.

Mr. SPEH. This problem arises in this form, that in the U.S. Information Agency this is the entire responsibility of the general counsei of that Agency. It is my understanding that the employees fill out these forms, put them in a sealed envelope, and they go directly to him. Another agency it is the director of personnel. So you have really a confusion here what is the primary function-is it a legal function or is it a management-administrative function?

Senator ERVIN. The subcommittee is certainly indebted to you. gentlemen for some very helpful suggestions and some very helpful specific instances showing what I conceive to be the necessity for some legislation of this character to protect the basic rights of Federal employees.

Thank you very much.

Mr. SPEH. It has been a pleasure, sir.

Senator ERVIN. If you have any suggestions that occur to you as to desirable changes in phraseology of this bill, we would appreciate having them.

Mr. SPEH. Thank you, sir.

Mr. AUTRY. Mr. Chairman, the next witness is Neil B. Kabatchnick, chairman, Civil Service Law Committee, the Bar Association of the District of Columbia.

Senator ERVIN. We wish to welcome you to the committee and thank you for being willing to appear and give us the benefit of your views and those of the committee you represent. You have been of material assistance to the subcommittee on other occasions.

STATEMENT OF NEIL B. KABATCHNICK, CHAIRMAN, CIVIL SERVICE LAW COMMITTEE, THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA

Mr. KABATCHNICK. Thank you very much, Senator.

On behalf of the Bar Association of the District of Columbia and as chairman of the association's civil service law committee, I wish to thank the subcommittee for according our association the opportunity of conveying its views on S. 3779 the purpose of which is to protect the constitutional rights of the Federal employee.

The association heartily endorses the need for legislative inquiry into the areas identified in S. 3779. In view of their experience, it is believed by some members of the civil service law committee as well as other members of our association, that there is a need for legislation pertinent to the subject matter contained within the framework of S. 3779 whereby specific prohibitions will exist to preclude the occurrence of actions of a nature identified in the bill. Many of us feel this is particularly true in the matter of defining the right of the Federal employee to counsel, as well as an awareness of the right to counsel, in inquiries relating to his suitability for employment or retention as an employee of the Federal Government. Many of us also believe there is also a need for legislation relating to the matter of

the use of polygraph examinations, the use of certain types of psychological testing, and the apparent unrestricted requirement for financial disclosure on the part of the Federal employee.

The civil service law committee, as such, was very recently established by Sidney S. Sachs, Esq., president of the Bar Association of the District of Columbia, and its board of directors, in reply to the requests of association members that such a body be constituted to assist, among other things, the Congress in matters such as are found in S. 3779. Significant in assessing the importance attached to the civil service law committee's function is the fact that our association made it a standing committee.

In reply to your invitation of September 19, 1966, our association has initiated a study of the provisions of the bill with a view toward assisting this subcommittee and the Congress in the enactment of legislation which, among other things, will protect the Federal employee as intended in S. 3779. Because of the importance of the subject matter of S. 3779, both from the point of view of the rights of the individual Federal employee as well as the ramifications it will have upon the Federal Government, and the limitations of time which presently exist, it is the desire of our association that it be accorded the privilege of continuing its study of the subject matter of S. 3779 and to reporting its views, with respect to the specific provisions of the bill, within such time as the subcommittee may grant to our association. In the association's consideration of S. 3779 to date, it is believed that there are two additional areas of Federal employment which might well be considered in any amendment of S. 3779. First, it is believed that it would be profitable to explore for legislative purposes the area of involuntary disability retirement or separation of the Federal employee; namely, the creation of a hearing process in such matters. Included in this is the subject of procedures relating to fitness for duty examinations. Secondly, some of us believe that some legislative prohibition relating to the use of various and sundry recording devices, which may be used in arriving at a determination of an individual's suitability or retainability in the Federal service, is warranted. Our association would hope to include views relating to these matters upon conclusions of our study of S. 3779.

In the ultimate, we wish to commend the chairman of the subcommittee, the subcommittee, and its staff in its endeavor to protect the constitutional rights of the Federal employee.

As aforementioned, it is hoped that our association will be accorded the privilege of submitting its specific views and comments on this important legislation.

Our association wishes to thank you for the privilege of according it the opportunity of expressing its views on this legislation.

I might say, Mr. Chairman, that it was intended that I be accompanied here today by Byron N. Scott, Esq., who is a member of the civil service law committee, and Samuel I. Sherwood, vice chairman of the civil service law committee. However, both counsel had commitments which required their presence elsewhere. I believe Mr. Scott had alerted me he was on call in the U.S. Court of Claims. There was an out-of-town commitment on the part of Mr. Sherwood that necessitated his presence in his office at this particular moment.

Senator ERVIN. I am delighted by the creation of the standing committee. Lawyers from the District of Columbia have in many instances a peculiar knowledge of civil service laws and of the many problems which arise in the field of the relationship between the Federal Government and Federal employees. For that reason your committee is in a much better position to give us advice and assistance in this field than we can get from any other group of lawyers.

Mr. KABATCHNICK. I am sure we will move as expeditiously as possible, sir.

Senator ERVIN. We called these hearings this fall because we think this legislation is of major importance in a field where there is very little protection for Federal employees who are, by reason of their employment, necessarily subject to the dangers of both psychological and economic coercion. They certainly are not able to deal at arm's length with those in authority over them. The odds are extremely

uneven.

We thought if we had hearings we could get people thinking about this problem. Also, we called hearings knowing it would not be possible to secure legislation at this time. But we propose to offer it again at an early stage of the next session, and we feel by having the hearings we will air suggestions that will be very helpful in perfecting the bill.

I would like to extend to you an invitation and, through you, to your committee to make any specific suggestions you may see fit for changes in the phraseology of this bill or additional provisions or clarifications any time between now and the convening of Congress in January.

Mr. KABATCHNICK. I will note your comments, Mr. Chairman, and convey them to the association and we will act in accordance with your invitation. I wish to thank you again.

Senator ERVIN. I am particulary pleased with the fact that we have received such a fine response on such short notice from organizations and committees interested in this particular field and having peculiar knowledge of this particular field.

Mr. AUTRY. Mr. Kabatchnick, as I recall you have had experience with and special knowledge not only of law as it applies to Federal civil servants, but also as to military personnel.

Mr. KABATCHNICK. Yes, sir.

Mr. AUTRY. I wonder if you could give us your ideas on the right to counsel as it is observed by the Armed Forces and the right to counsel as it is observed by the civil service.

Mr. KABATCHNICK. I must say this. I am speaking now as an individual and not as a spokesman for our association.

It has been my experience and the bulk of my experience has been primarily in the field of military law, and I believe that the Military Establishment-it is just about the difference between night and day in my personal opinion with regard to the right to counsel. I believe that, as you may be aware, in the military judicial system you have the Uniform Code of Military Justice which is statutory under title 10 of the United States Code.

One particular provision of the Uniform Code is article 31, which embraces the provision against the right to self incrimination.

There is, I believe-there has been introduced in the House-there is no specific requirement in article 31 of the code at this time indicating that an individual be apprised of his right to counsel. I believe there has been a bill introduced on the House side to amend article 31 to include the warning that the individual has a right to counsel.

It is my understanding that at least one of the military departments has included in their administrative regulations or in their instructions to investigating authorities that they will warn the individual of his right to counsel.

In the area of administrative discharges, the individual, usually before he signs a waiver of his-any rights he has-there is a recitation that he has afforded the right to consult counsel. At the present time I think it is a practice throughout all of the military services that when an individual makes a statement exercising any rights or waiving any rights, he has the right to counsel.

It is my personal view-and I speak solely for myself as an individual and as a member of the bar, as an attorney-that consistent with the description of S. 3779 as a bill of rights for the Federal employee, that it would be prudent to embrace within title 5 of the United States Code, or somewhere within-somewhere by statute, a provision similar to that in article 31 of the Uniform Code of Military Justice which I believe, if I recall correctly, is 10 U.S.C. 831, so that an employee, where there is any question on the part of management that any inquiry into the conduct, behavior, or work as relates to potential disciplinary or adverse personnel action, including physical disability retirement, as it might relate to behavior on the part of the employee during his working hours-that he be accorded, or that it be required on the part of management to warn him of his right to counsel so that he can exercise and form that judgment.

At this time, to my knowledge, there is no practice whatsoever along this line within the Federal employee system.

Mr. AUTRY. Do you think we ought to give consideration at least to bringing the right to counsel of the Federal employee up to the standard of the rights of military personnel?

Mr. KABATCHNICK. Yes, speaking personally, yes, sir, absolutely— no question in my mind.

Mr. AUTRY. In that connection, Chairman Macy, in justifying his opposition to that section of the bill stated:

With respect to Subsection K, the right to counsel is recognized in all procedures under the jurisdiction of the Civil Service Commission including special interviews in the investigatory process. Any employee who is the object of an adverse action is entitled to counsel of his choice at the agency level and upon appeal to the Commission. Our objection to Subsection K is that it makes no distinction between formal hearings and informal fact-finding discussions. Do you have any comment on Chairman Macy's reason for opposing this?

Mr. KABATCHNICK. It is my personal view, and it is my understanding-and I believe there has been a judicial determination in the U.S. Court of Claims on this point, and I believe this is the practice, at least it has been my experience in the civil service matters, that the right to counsel only comes into play after notice has been served on

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the individual-an adverse action has been proposed. If there is no indication—it is my understanding there is no indication for caution, or admonition to the individual, at the preliminary stages that anything that he says may be used as a basis for sustaining the proposed action.

Unfortunately, I have one matter at the present time, which I cannot discuss by name or agency-I do not feel I am at liberty to do sowhere this problem exists. This is indicated right in the notice of proposed adverse action.

I do not think it has been my experience, if I recall my experiencethat it is not-I would not say it is a rare exception-where charges or a part of the charges will be based on an admission or purported admissions of the employee at some time prior to the notice of proposed adverse action.

Senator ERVIN. It seems to me the defect in the justification of the distinction made by Mr. Macy creates what I call a difference without distinction. In other words, if a man is denied the right to counsel in what Mr. Macy calls an informal factfinding proceeding or discussion, he may be hanged after the formal accusation is made on the basis of what was extracted from him more or less against his will in the informal factfinding discussion.

There is not much sense in giving a man the right of counsel only after you have accumulated enough testimony by prior admissions from him to hang him.

You made suggestions about an amendment. If you can find any spare time in the next few weeks, would you please write out what provisions you think should be made in this section giving the right to presence of counsel? I would appreciate it very much.

Mr. KABATCHNICK. We will be glad to do so, sir.

Senator ERVIN. I recognize that there is room for a good deal of legislation in the field to assure due process in hearings upon complaints of misconduct, complaints of dereliction of the performance of duty, or poor performance of duty. But as a practical matter, I think that the attempt in this field should be kept at a minimum and be kept in the hands of the agency. Of course the idea that each agency should set up its own procedure would be like saying each Federal district court should set up the procedures by which it would try cases.

Mr. KABATCHNICK. That's very true, sir.

Senator ERVIN. Thank you very much.

Mr. AUTRY. Mr. Chairman, the next witness is Mr. E. C. Hallbeck, president of the United Federation of Postal Clerks. He is accompanied by Mr. Patrick J. Nilan, legislative director.

Senator ERVIN. Gentlemen, on behalf of the subcommittee I welcome you to this hearing. I want to express our appreciation for your willingness to come and give us the benefit of your observations and the views of your organization. I might add that a good many of my own constituents who are members of your organization have furnished me with a good deal of information about some things that they think amount to a deprivation of the rights of people in the postal service.

Mr. HALLBECK. Thank you, Mr. Chairman. With your approval, Mr. Nilan will read the statement on behalf of the organization.