3. At the time of transfer or suspension or as soon as practicable thereafter, the employee should be advised in writing of the reasons for the transfer or suspension.

4. Priority should be given to investigations or hearings, as the case may be, in transfer or suspension cases.

Public Law 733,76 the statutory basis for Executive Order 10450, has been construed as requiring suspension without pay where derogatory information is developed before an employee can be granted a hearing. The Commission's recommendations would eliminate this requirement."

The Commission believes that removal from a position, pending further investigation or pending final determination, if a letter of charges has been issued, may be necessary in order to adequately protect the national security.

Where derogatory information indicating reasonable doubt as to the loyalty of an occupant of such a position is grave and serious in character, and where the responsible evaluating officer reaches the conclusion that the information is apparently reliable, the retention of the employee in such a position pending the opportunity to make further investigation, if further investigation is required, and pending an initial determination if a letter of charges has been issued, may constitute a substantial threat to the national security.

Under such circumstances temporary removal from such a position should be required unless the employee's present or continuing contribution to the national security warrants retention.

Temporary removal should, wherever possible, be effectuated through the transfer of such employee, if he has the requisite qualifications, to a position. where he would not have the opportunity to damage the national security. If no such position is available, suspension is the only means whereby national security can be adequately protected.78

The Commission has recommended that, where such suspension occurs, the employee should continue to draw his salary until the head of the responsible agency has received the report of the hearing examiner and made his initial determination as to removal from the service. If the decision of the head of the agency after receipt of the hearing examiner's report is adverse to the employee, he should not continue to receive his pay

76 64 Stat. 476, 5 U. S. C. 22-1, 2, 3 (1950).

77 The Attorney General has also recommended to the Congress in the 84th and 85th sess. of the Congress that the exercise of suspension prior to hearing or termination be made discretionary. Under the present program large numbers of employees who were suspended in compliance with the statute were eventually reinstated.

78 The Supreme Court in Cole v. Young, 351 U. S. 536, June 11, 1956, in interpreting Pub. Law 733 recognized that "summary suspension powers" provided in the Act should be sharply limited, stating "There is obvious justification for the summary suspension power where the employee occupies a 'sensitive' position in which he could cause serious damage to the national security during the delay incident to an investigation and the preparation of charges ... in the absence of an immediate threat of harm to the 'national security' the normal dismissal procedures seem fully adequate and the justification for summary powers, disappears." For the Commission's recommended definition of a sensitive position and discussion thereunder see p. 54.

pending his appeal to the central review board, and pending the final decision of the head of the agency after receipt of the report of the central review board.

The Commission has made this recommendation because of its belief that it would be unfair and work an undue hardship upon the employee to stop his pay pending a further investigation by the Government if further investigation is required, or pending an initial determination by the head of the agency after he has had an opportunity to weigh the recommendations of the hearing examiner.

The Commission believes that the facts to be weighed in determining that a transfer or suspension is necessary are of such a nature as to require that the person charged with making the decision be a highly responsible officer of the agency. Accordingly, it has been provided that such person must occupy a rank not inferior to that of assistant secretary or its equivalent." It believes that this requirement will do much to insure that the transfer or suspension procedures herein recommended will be utilized only when

necessary.

The provision requiring that priority be given to investigations or hearings in transfer or suspension cases will result in a prompt and expeditious consideration and disposition of such cases.

HEARINGS

Hearing Examiners

80

1. In all loyalty cases the initial hearing on the letter of charges should be conducted by a hearing examiner in accordance with rules and regulations to be promulgated by the Central Security Office.8 2. The hearing examiners should be appointed by the director of the Central Security Office from an appropriate civil service register created for the purpose.

3. Hearing examiners should be full-time governmental employees adequate in number to hear civilian employee loyalty cases throughout the country.81

"The Attorney General made a similar suggestion relative to suspension for all departments and agencies in his letter of Mar. 4, 1955, to the President stating: "Meticulous care should be exercised in the matter of suspension of employees against whom derogatory information has been received. It is suggested that a personal interview with the employee prior to suspension is helpful in most instances. The general counsel of the department or agency should be consulted and his opinion should be secured as to the sufficiency of the information justifying suspension. The final decision as to suspension should not be delegated below the assistant secretary level." The Commission has recommended that a personal interview be mandatory prior to issuance of a letter of charges. See Screening; Charges, p. 57.

so For the Commission's recommendation concerning the proposed Central Security Office, see p. 81 et seq. 81 Hearing examiners would also be available to hear cases involving clearances under the port security, air transport security, and industrial security programs, as well as cases of organizations designated by the Attorney General. See Central Security Office, p. 89, and separate recommendations concerning these programs.

4. The qualifications of a hearing examiner should be fixed by the Civil Service Commission after consultation with the head of the Central Security Office.

5. The hearing examiners' experience should include legal practice or technical work performed in a field appropriate to the Government's loyalty and security programs. The Civil Service Commission should prepare an appropriate job description sheet and requisite qualifications after consultation with the director of the Central Security Office.

6. There should be an appropriate initial training program and periodic in-training service which, in addition to appropriate technical subjects, would make provision for indoctrination in constitutional and related matters affecting Federal employment.

7. The decisions of the hearing examiners should be advisory to the head of the employing agency whose decision shall be final.

The Commission considered the comparative advantages of having loyalty cases heard by hearing boards or single hearing examiners. Hearing boards were utilized under the loyalty program established by Executive Order 9835, as amended, as well as the security program established by Execu tive Order 10450 as amended. Under the former program cases involving applicants for, and conditional appointees to, the classified civil service were heard by regional loyalty boards composed of non-Government personnel appointed by the Civil Service Commission under its general mandate to establish rules governing appointment to the competitive service. Cases involving all other employees were heard by agency loyalty boards composed of Government personnel appointed by the agency heads. No special qualifications were prescribed for the board members. All appeals were to the Loyalty Review Board established in the Civil Service Commission whose opinions (except in the case of veterans) 83 were advisory to the head of the employing department or agency.84

Under Executive Order 10450, as amended, the Civil Service Commission has the responsibility of maintaining a roster of Government employees available to serve on security hearing boards of not less than three persons. More than 1,800 persons are presently listed on the roster, all of whom were nominated by their employing agencies. The only requirements for nomination to the roster announced by the President are that they be "competent and disinterested Government employees from outside the department or

82 Executive Order 9835, pt. II, par. 2.

83 By virtue of sec. 14 of the Veterans' Preference Act of 1944, 58 Stat. 390, as amended, 61 Stat. 723 (1947), 5 U. S. C. 863, the decision was mandatory on the head of the agency. See also suitability program, equal treatment for veterans and nonveterans, p. 86.

84 Executive Order 9835, pt. III, par. 1.

agency concerned" and "persons possessing the highest degree of integrity, ability, and good judgment." " The Department of Justice enlarged on these general concepts stating each designee must have been the subject of a full field investigation and shall be a person "of responsibility, unquestioned integrity and sound judgment,” and his designation determined to be "clearly consistent with the national security." There are no special qualifications as to training or experience, although many of the employees designated had some previous hearing experience under the loyalty program established by Executive Order 9835. The persons named to the roster are on call, available only when consonant with their other regular duties.

The Commission's sampling survey of cases heard under both the 9835 and the 10450 programs, as well as competent opinion in and out of Government, has led it to the definite conclusion that hearings of loyalty or security cases can more effectively be conducted by single examiners armed with sufficient training, experience, and supervision to insure that the interests of both the Government and the individual are adequately protected. It has carefully examined the "jury of peers" concept of the board system and found it wanting.

Whoever presides at a loyalty hearing sits not as a jury alone, nor as a judge alone, but to the degree that the taking of evidence is involved, as a combination of both, determining the facts and weighing their meaning in the light of the prevailing standard of employment.

The hearing of a loyalty issue is a grave and often complex matter. The task of sifting the evidence (some from confidential undisclosed sources); of evaluating the significance of past activities and associations, much of it relative in nature; of getting into the record all germane evidence without breaching the national security; of separating truth from falsehood; of determining the existence or nonexistence of reasonable doubt of loyalty—is a responsibility that should be entrusted only to specially selected, qualified, trained, full-time examiners. Establishing specific qualifications for hearing examiners is of course no guarantee they will be competent-to advocate no formal qualifications at all is to avoid the issue. The experience with hearing examiners under the Administrative Procedure Act and of Federal and State courts in assigning complicated issues to special masters to take testimony, is abundant proof of the advantages of the special examiner principle.

The above recommendations are self-explanatory. In brief they provide for the establishment of a selected and limited group of hearing examiners available to hear cases not only under the civilian employee loyalty program, but under the port security, air transport security, and industrial security

See the President's memorandum of Apr. 27, 1953, to the heads of all departments and agencies accompanying the text of Executive Order 10450.

Sample security regulations prepared by the Department of Justice and issued concurrently with Executive Order 10450, sec. 8 (e).

programs, as well as cases of organizations designated as subversive by the Attorney General. The use of hearing examiners is an integral part of the major recommendation of the Commission that a Central Security Office be created.87

The use of qualified examiners should insure more intelligently conducted hearings and less chance of injustice to Government or employee. The advisory nature of the examiners properly leaves the final responsibility for each case with the agency head; the supervision of the Central Security Office and provision for appeal 88 will provide for uniformity of procedure and evaluation. The use of examiners in several programs should insure uniformity, lessen hearing costs, and expedite hearing procedures.

Role of Agency at Hearing

1. Sufficiently in advance of the hearing to permit study by the hearing examiner, the agency should submit to the examiner the complete file on the individual and all pertinent supporting documents, plus a résumé of any administrative action and reasons therefor. At the hearing itself, the agency representative should be present to answer the questions of the hearing examiner and to assist the hearing examiner in any other appropriate way. He should not act as a prosecutor.

2. The agency head should have the authority to designate the person or persons to represent the agency at the hearing, and such representative(s) should not participate in the formulation of the hearing examiner's decision.

3. The agency representatives need not be licensed attorneys.

89

The loyalty hearing is an administrative one. It is not a trial or in any sense an adversary proceeding. As previously recommended, there is no burden of proof on either the Government or the employee, but the decision should be reached upon the evaluation of all the information, favorable as well as unfavorable. The role of the hearing examiner is to determine the facts and to weigh them in the light of the loyalty standard, criteria and applicable principles. The role of the agency representative is impartially to assist the examiner in this task.

Under present practice the Attorney General has suggested to all departments and agencies that a legal officer should be present at security-hearing

87 For a full discussion of the Commission's considerations which led to the recommendation that a Central Security Office be created including the use of hearing examiners, see p. 633.

88 Hearings, Appeals, p. 72.

See Criteria and Principles of Application, p. 46 et seq.