Intelligence Agencies: Selected Personnel Practices at CIA, NSA, and DIA
Compared to Other Agencies
PDF Version
(Chapter Report, 03/11/96, GAO/NSIAD-96-6)
Pursuant to a congressional request, GAO reviewed personnel practices at
the Central Intelligence Agency (CIA), National Security Agency (NSA),
and the Defense Intelligence Agency (DIA), focusing on: (1) how equal
employment opportunity (EEO) and adverse action practices at these
agencies compare with other federal agencies; and (2) whether employee
protections at these agencies could be standardized with those offered
by other federal agencies.
GAO found that: (1) although CIA, NSA, and DIA have similar EEO goals,
management practices, and complaint processing procedures as other
federal agencies, there is a lower representation of women and
minorities in these agencies; (2) adverse action regulations at NSA and
DIA are similar to those of other federal agencies, since they entitle
employees to receive advance notice of proposed actions, reply to
charges, representation, and receive a final written decision; (3) the
main difference between adverse action regulations at CIA and other
agencies is that the Director of CIA has unlimited authority to remove
employees; (4) only military veterans at NSA and DIA can appeal adverse
actions to the Merit Systems Protection Board, even though there is no
national security rationale for this policy; and (5) employee
protections at the intelligence agencies could be standardized with
those at other agencies, since adverse action cases seldom involve
classified information and intelligence agencies could still protect
national security by retaining their summary removal authorities.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-96-6
TITLE: Intelligence Agencies: Selected Personnel Practices at CIA,
NSA, and DIA Compared to Other Agencies
DATE: 03/11/96
SUBJECT: Fair employment programs
Federal intelligence agencies
Personnel management
Appellate procedure
Federal employees
Civil rights law enforcement
Veterans
Employment of minorities
Employment discrimination
IDENTIFIER: Equal Employment Opportunity Program
Federal Equal Opportunity Recruitment Program
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Cover
================================================================ COVER
Report to the Honorable
Patricia Schroeder, House of Representatives
March 1996
INTELLIGENCE AGENCIES - PERSONNEL
PRACTICES AT CIA, NSA, AND DIA
COMPARED WITH THOSE OF OTHER
AGENCIES
GAO/NSIAD-96-6
Intelligence Agencies
(701048)
Abbreviations
=============================================================== ABBREV
CIA - Central Intelligence Agency
DCI - Director of Central Intelligence
DIA - Defense Intelligence Agency
DOD - Department of Defense
EEO - Equal Employment Opportunity
EEOC - Equal Employment Opportunity Commission
GAO - General Accounting Office
MSPB - Merit Systems Protection Board
NSA - National Security Agency
OPM - Office of Personnel Management
Letter
=============================================================== LETTER
B-258884
March 11, 1996
The Honorable Patricia Schroeder
House of Representatives
Dear Mrs. Schroeder:
We have completed the review you requested on selected personnel
practices at the Central Intelligence Agency, the National Security
Agency, and the Defense Intelligence Agency.
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 7 days
after its issue date. At that time, we will send copies to
appropriate congressional committees and to individual Members of
Congress who represent large numbers of intelligence agency
employees. We will also send copies to the Director of Central
Intelligence, the Secretary of Defense, the Director of the National
Security Agency, the Director of the Defense Intelligence Agency, the
Chairman of the Merit Systems Protection Board, the Chairman of the
Equal Employment Opportunity Commission, and the Director of the
Office of Management and Budget. Copies will also be made available
to others upon request.
Please contact me on (202) 512-3504 if you or your staff have any
questions concerning this report. Major contributors to this report
are listed in appendix IV.
Sincerely yours,
Richard Davis
Director, National Security
Analysis
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
Intelligence agencies employ thousands of people who, for reasons of
national security, are not covered by certain federal personnel
statutory protections. Concerned that intelligence agency employees
do not have the same protections afforded other federal employees,
the Civil Service Subcommittee of the former House Committee on the
Post Office and Civil Service and Representative Patricia Schroeder
requested GAO to review selected personnel practices at the Central
Intelligence Agency (CIA), the National Security Agency (NSA), and
the Defense Intelligence Agency (DIA). Specifically, GAO compared
equal employment opportunity (EEO) and adverse action practices at
these agencies with those of other federal agencies and determined
whether employee protections at these three intelligence agencies
could be standardized with the protections offered by other federal
agencies.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
EEO programs are programs designed to prevent discrimination in the
workplace. Federal law, including title VII of the Civil Rights Act
of 1964 and the Equal Pay Act, require that federal agencies have EEO
programs. The Equal Employment Opportunity Commission is a separate
agency that oversees EEO policies throughout the federal government.
The Equal Employment Opportunity Commission also holds hearings on
employee discrimination complaints and decides on appeals from
federal employees with EEO complaints against their agencies.
Adverse actions are actions taken by an agency that adversely affect
an employee, including suspension or removal. The 5 U.S.C. 7513
provides most federal employees with various protections when they
are subject to adverse actions. The Merit Systems Protection Board
is a separate agency created to, among other functions, hear and
decide on federal employee appeals of adverse actions taken by their
agencies.
Congress has exempted the CIA, NSA and DIA from a number of statutes
that regulate and control the personnel practices of other federal
agencies. The legislative histories of these exemptions indicate
that the intelligence agencies are treated differently primarily for
reasons of national security. Also, the directors of all three
agencies have authorities to summarily remove employees.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
The CIA, NSA, and DIA have EEO practices similar to those of other
federal agencies with respect to management, planning, reporting,
complaint processing, and affirmative action. In contrast, adverse
action practices at the intelligence agencies vary by agency and type
of employee. The internal procedures (and associated employee
protections) at NSA and DIA are similar to those of other federal
agencies. Although NSA and DIA have statutory authorities to
summarily remove employees in national security cases, these
agencies' implementing regulations include some basic employee
protections. The internal adverse action regulations at CIA also
include some employee protections, but the CIA Director can waive all
employee protections and summarily remove employees at any time. The
external appeals procedures at intelligence agencies differ from the
procedures at other federal agencies in that most employees (all but
NSA and DIA military veterans) cannot appeal adverse actions to the
Merit Systems Protection Board.
GAO's review indicated that with the retention of summary removal
authorities, these intelligence agencies could follow standard
federal practices, including the right to appeal adverse actions to
the Merit Systems Protection Board, without undue risk to national
security. GAO recognizes that Congress is currently studying reforms
to these standard federal practices, and GAO has testified that some
of these practices have shortcomings. However, GAO sees no
justification for treating employees at these intelligence agencies
differently from employees at other federal agencies except in rare
national security cases.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
EEO PRACTICES ARE SIMILAR TO
THOSE AT OTHER AGENCIES
-------------------------------------------------------- Chapter 0:4.1
CIA, NSA and DIA have practices for EEO management, planning, and
reporting that are very similar to those at other federal agencies.
These agencies generally follow Equal Employment Opportunity
Commission guidelines for managing and planning their EEO programs.
Intelligence agencies also provide the Equal Employment Opportunity
Commission with standard EEO statistical reports that, unlike the
reports of other agencies, exclude information on total agency
workforce levels because this information is classified.
EEO complaint processing at CIA, NSA, and DIA is similar to the
processing at other federal agencies, with internal investigations
and an external hearing by or appeals to the Equal Employment
Opportunity Commission. Like other federal employees, CIA, NSA, and
DIA employees with EEO complaints may also pursue their concerns
through civil actions in U.S. courts. In hearings or appeals to the
Equal Employment Opportunity Commission or the courts, judges and
attorneys are provided security clearances as needed. CIA and NSA
take longer than other federal agencies to process employee EEO
complaints, while DIA takes less time. These agencies, when compared
with other federal agencies, have substantially fewer EEO complaints
per 1,000 employees, but the number of complaints is increasing much
faster than complaints in the federal workforce as a whole.
Like other federal agencies, CIA, NSA, and DIA have broad EEO goals
for workforce diversity and have developed programs to assist in
achieving these goals. Despite these efforts, minorities and women
are still underrepresented in these agencies' workforces when
compared with their representation in the federal workforce as a
whole. The leadership at these three intelligence agencies has
publicly recognized these diversity problems and has pledged to
correct them.
ADVERSE ACTION PRACTICES OR
REGULATIONS, EXCEPT FOR
EXTERNAL APPEALS, ARE
SIMILAR TO THOSE OF OTHER
AGENCIES
-------------------------------------------------------- Chapter 0:4.2
The internal regulations and practices for adverse action at NSA and
DIA are very similar to those of other federal agencies. NSA and DIA
regulations entitle employees to (1) receive advance notice of
proposed actions, (2) reply to charges, (3) have representation, and
(4) receive a final written decision. Further, GAO's review of 40
NSA and DIA case files from 1993 and 1994 indicated that these
agencies complied with their regulations. These agencies have
statutory authority to summarily remove employees in national
security cases. But even in such cases (which have never occurred),
agency regulations still provide some basic employee protections.
CIA internal regulations for adverse actions are similar to the
procedures of other federal agencies in providing employees with some
protections. However, these protections can be waived because CIA
regulations provide the director with carte blanche authority to
remove employees. According to the CIA's regulations, the director's
decisions to remove employees are not limited by any law, they do not
have to be based on national security, and the director is not
accountable to anyone for such decisions. GAO could not determine
what protections CIA employees are actually afforded, or how often
the director has exercised his carte blanche authority to remove
employees, because CIA would not allow GAO to review case files.
All employees at CIA and most employees at NSA and DIA have no right
to appeal adverse actions externally to the Merit Systems Protection
Board. At NSA and DIA, only military veterans (making up
approximately 21 percent and 32 percent of these agencies' respective
civilian workforces) can appeal adverse actions to the Merit Systems
Protection Board because this right is derived from the Veterans
Preference Act. There is no national security rationale for the
different treatment of veterans and nonveterans by the different
agencies. The Merit System Protection Board, in reviewing adverse
action decisions by federal agencies (including NSA and DIA actions
against veterans), reviews agency procedures but does not review the
substance of security clearance determinations, which are frequently
a reason that these agencies remove employees.
CONGRESS COULD GRANT
STANDARD FEDERAL PROTECTIONS
TO EMPLOYEES AT THESE
AGENCIES WITHOUT UNDUE RISK
TO NATIONAL SECURITY
-------------------------------------------------------- Chapter 0:4.3
For many years, NSA and DIA have served as examples that intelligence
agencies can operate under standard adverse action practices.
Regarding internal adverse action practices, all NSA and DIA
employees enjoy the same protections as other federal employees.
Regarding external appeals of adverse actions, a substantial number
of NSA and DIA employees (veterans) enjoy appeal rights to the Merit
Systems Protection Board just like other federal employees. Further,
GAO found that very few adverse action cases involve sensitive
information. Specifically, in recent NSA and DIA adverse actions
reviewed by GAO, 39 of 40 case files (or 98 percent) contained no
classified national security information. Moreover, while NSA and
DIA can remove employees using their summary removal authorities to
prevent the Merit Systems Protection Board from reviewing a veteran's
appeal, these agencies have never elected to do so.
GAO sees no reason why the NSA and DIA experiences would not be
applicable to CIA as well. Regarding internal removal practices,
aside from the director's carte blanche removal authority, CIA
regulations are similar to those of other agencies. Regarding
external appeals, employees at NSA and DIA (like CIA employees) have
access to highly classified information. Thus, CIA employee appeals
would not appear to be more of a risk to national security than
current appeals by NSA and DIA veterans.
If CIA, NSA, and DIA employees were granted standard federal
protections against adverse actions, the agencies could still take
several steps to protect national security information. First, the
agencies could continue current procedures to keep classified
information out of adverse action case files. All three agencies
have experience preparing case files for external appeals in adverse
action and/or EEO cases. In a recent EEO court case, CIA's
preparation of documents about case officers demonstrates that
information on sensitive intelligence operations can be converted
into unclassified publicly available documents. Second, where
classified information cannot be avoided, the agencies could provide
security clearances to Merit System Protection Board administrative
judges and employee attorneys in adverse action appeals. All three
agencies have experience dealing with judges and attorneys who have
security clearances in EEO appeals to the Equal Employment
Opportunity Commission and in court cases. Therefore, providing
employees with rights to appeal to the Merit Systems Protection Board
would present no more risk to national security than do current
employee appeals to the Equal Employment Opportunity Commission.
Recognizing that risks could still arise, GAO believes that agencies
would need to preserve their current summary removal authorities.
Because these removal authorities are not subject to external appeal,
the agencies could use them to minimize national security risks in
highly sensitive cases. At NSA and DIA, these special authorities
have been used judiciously. CIA did not allow GAO to review case
files, so GAO cannot make judgments on the frequency or propriety of
cases where the director's summary removal authority was used. CIA
officials stated that this authority has sometimes been used in cases
not related to national security, such as reductions in force.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
This report contains no recommendations.
AGENCY COMMENTS AND GAO'S
EVALUATION
---------------------------------------------------------- Chapter 0:6
In commenting on a draft of this report, the Department of Defense
(DOD) concurred with GAO conclusions about NSA and DIA regarding EEO
issues. CIA's comments did not address the draft report's treatment
of EEO issues.
Regarding adverse actions, CIA and DOD did not concur with GAO's
conclusion that Merit Systems Protection Board appeal rights could be
extended to all intelligence agency employees. CIA and DOD stated
that GAO did not adequately consider the national security risks
associated with such a change in policy. GAO disagrees because the
report lays out a tiered process in which, depending on the level of
risk involved, the agencies themselves would determine what
precautionary steps would be most appropriate. In addition, GAO
clearly acknowledges that there may be national security cases in
which summary removal, without appeal, will be appropriate.
CIA and DOD also stated that GAO underestimated the administrative
costs of allowing appeals to the Merit Systems Protection Board. GAO
agrees that there will be some additional administrative costs
involved. GAO has previously testified that the federal redress
process, because of its complexity, is inefficient, expensive, and
time-consuming. However, Congress provided the intelligence agencies
with exemptions to standard federal policies based on national
security considerations, not to streamline administrative procedures.
Congress is currently studying the federal redress process and to the
extent that the process is reformed, cost as well as administrative
burdens may be reduced. Any changes made in intelligence agency
practices should be consistent with changes Congress may make to
reduce costs and time for the redress process for other federal
employees.
The Equal Employment Opportunity Commission had no comments on GAO's
findings regarding the intelligence agencies, but disagreed with
GAO's previous testimony about shortcomings in the federal redress
process. The Merit Systems Protection Board elected not to provide
comments.
INTRODUCTION
============================================================ Chapter 1
Intelligence is the collection, integration, analysis, production,
and dissemination of information on foreign entities. Such entities
include governments, nongovernmental organizations, or individuals.
Some of the best intelligence information comes from sensitive
sources and methods. To protect these sources and methods and ensure
the continued availability of the information to the United States,
most intelligence is classified and carefully controlled on a
"need-to-know" basis. Due to the sensitive nature of their work,
intelligence agencies classify information on the size of their
budget and workforce.
BACKGROUND ON INTELLIGENCE
AGENCIES WE REVIEWED
---------------------------------------------------------- Chapter 1:1
The Central Intelligence Agency (CIA) is an independent agency
created by the National Security Act of 1947. CIA's mission is to
collect, analyze, produce, and disseminate foreign intelligence. CIA
researches, develops, and procures technical systems for gathering
intelligence and conducts clandestine operations as authorized by the
President. CIA's finished intelligence products are generally
designed to support national-level policy deliberations. CIA has a
broader mission to coordinate all intelligence activities of the U.S.
government. CIA is headed by the Director of Central Intelligence
(DCI) who, in addition to managing CIA's operations, has broad
authority to manage all U.S. intelligence activities. Other than
setting governmentwide security clearance standards for intelligence
employees, the DCI generally does not get involved in personnel
management issues at the other intelligence agencies. Almost 100
percent of the CIA workforce is civilian.
The National Security Agency (NSA) is a combat support agency within
the Department of Defense (DOD) established by presidential directive
in 1952. NSA has two separate missions: signals intelligence and
communications security. For signals intelligence, NSA manages all
U.S. signal collection and processing and produces signals
intelligence in accordance with DOD and DCI priorities. For
communications security, NSA provides leadership, products, and
services to U.S. agencies that need to protect their information and
communication systems from foreign exploitation. NSA is headed by a
three-star flag officer, who reports to the Secretary of Defense.
About 80 percent of the NSA workforce is civilian.
The Defense Intelligence Agency (DIA) is a combat support agency
within DOD established by DOD directive in 1961. DIA's mission is to
satisfy the requirements of DOD for foreign military and
military-related intelligence. DIA coordinates the collection and
production of all defense intelligence activities and operates
education and training programs for military and civilian personnel
involved in defense intelligence. DIA also provides intelligence to
non-defense organizations such as CIA, the National Security Council,
and the State Department. DIA is headed by a three-star flag
officer, who reports to the Secretary of Defense and the Chairman of
the Joint Chiefs of Staff. About 70 percent of the DIA workforce is
civilian.
Congress has exempted these three intelligence agencies from a number
of statutes that regulate the personnel practices of other federal
agencies and provide their employees with certain protections and
rights. In addition, the Directors of CIA, NSA, and DIA have
statutory authority to summarily remove employees. The language and
legislative histories of laws exempting the agencies' employees from
protections and rights afforded other federal employees indicate that
these intelligence agencies are treated differently primarily for
reasons of national security.
EQUAL EMPLOYMENT OPPORTUNITY
---------------------------------------------------------- Chapter 1:2
Equal employment opportunity (EEO) is a policy, implemented through
laws and personnel regulations, intended to prevent workplace
discrimination on the basis of race, color, religion, sex, national
origin, age, or physical limitation. EEO practices are also intended
to overcome the historic underrepresentation of minorities and women
in the workforce through affirmative action programs.
The Civil Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972, requires federal agencies to develop and
implement EEO programs. Further requirements were laid out in
Executive Order 12067. The EEO offices in federal agencies manage
the agencies' EEO complaints. For example, employees may file
complaints alleging that they were mistreated or denied promotions on
account of race or gender. These offices also help implement agency
affirmative action programs. For example, EEO offices track the
number of minority or women employees who are recruited and promoted.
The Office of Personnel Management (OPM) plays a role in EEO programs
by overseeing and assisting agencies in their affirmative action
recruitment efforts. OPM's role is secondary to that of the Equal
Employment Opportunity Commission.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
-------------------------------------------------------- Chapter 1:2.1
The Equal Employment Opportunity Commission (EEOC) is an independent
federal agency responsible for coordinating all executive branch EEO
programs and activities. Executive Order 12067 made EEOC responsible
for providing agencies with guidance on their affirmative employment
programs. EEOC has issued several management directives that contain
policy statements, procedures, and reporting requirements for federal
agencies to follow when establishing and managing their EEO programs.
EEOC has also provided agencies with guidance relating to processing
employment discrimination complaints.
In addition to overseeing EEO policies and practices for the
executive branch of government, the EEOC also hears appeals from
employees that have complaints against their agencies. EEOC can hold
hearings on individual discrimination cases before an agency final
decision on a complaint and/or review the agency decision on appeal
from the employee. Federal employees who wish to file EEO
discrimination complaints may also pursue their case through civil
actions in U.S. district courts after pursuing their administrative
remedies.
ADVERSE ACTIONS
---------------------------------------------------------- Chapter 1:3
Adverse actions are personnel actions taken by an agency that
adversely affect an employee, such as reduction in grade or pay,
suspension, and removal. By statute and regulations prescribed by
OPM, most agencies may take adverse actions against employees only
when justified to promote the efficiency of the federal service.
Removal is the most serious type of adverse action and, except for
egregious misconduct, usually occurs after a progression of other
lesser disciplinary actions are unsuccessful in improving the
employee conduct. For example, if an NSA guard leaves a guard post
without authority, the first offense could result in a 30-day
suspension, but the second offense could result in removal. Given
that holding a security clearance is a mandatory condition of
employment at intelligence agencies, the denial or revocation of a
clearance is also grounds for removal.
MERIT SYSTEMS PROTECTION
BOARD
-------------------------------------------------------- Chapter 1:3.1
The Merit Systems Protection Board (MSPB) is an independent agency
that serves as the guardian of the federal merit system
principles--rules of conduct for federal agencies. MSPB's mission is
to ensure that (1) federal employees are protected against abuses by
their agencies' management, (2) executive branch agencies make
employment decisions in accordance with merit system principles, and
(3) federal merit systems are kept free of prohibited personnel
practices. MSPB is headed by a bipartisan Board made up of three
members, appointed by the President, with the advice and consent of
the Senate. Each member serves a single 7-year term.
Similar to the EEOC, the MSPB hears and decides upon federal employee
appeals of adverse actions taken by their agencies. A number of
personnel actions can be appealed to the MSPB, but the vast majority
of appeals to MSPB are agency adverse actions involving reductions in
grade or pay, suspensions of more than 14 days, and removals. MSPB
can also hear so called "mixed cases," which are adverse action cases
where an employee has alleged discrimination. If the employee is
dissatisfied with the MSPB decision in a mixed case, he or she can
ask EEOC to review MSPB's decision.
Once an initial decision of an MSPB administrative judge has become
final or the Board has issued a final decision on a petition for
review, an employee can appeal the final decision to the U.S. Court
of Appeals for the Federal Circuit or, in mixed cases involving
allegations of discrimination, file a civil action in the appropriate
U.S. district court.
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:4
We initiated our review at the request of the Chairman of the Civil
Service Subcommittee of the former House Committee on the Post Office
and Civil Service. The Committee was concerned that employees at
CIA, NSA, and DIA do not have the same protections as other federal
employees. The 104th Congress reorganized the committee structure,
abolishing the House Committee on Post Office and Civil Service. We
continued our review for Representative Patricia Schroeder, who was a
signatory on the original request letter. Our objectives were to
compare EEO practices at CIA, NSA, and DIA with those of other
federal agencies;
compare adverse action practices at CIA, NSA, and DIA with those of
other federal agencies; and
determine whether adverse action practices at CIA, NSA, and DIA
could be standardized with those of other federal agencies
without undue risk to national security.
Our scope was limited to civilian tenured personnel at these three
agencies. We did not consider military personnel, senior executives,
or civilian personnel serving probationary periods or temporary
appointments. We did not look at other federal agencies in the
intelligence community such as the Central Imagery Office, the
National Reconnaissance Office, the Department of State, the
Department of Energy, or the intelligence organizations of each
military service. We also did not look at other agencies that have
some of the same personnel- related statutory exemptions as
intelligence agencies. Our primary purpose was to compare CIA, NSA,
and DIA with other federal agencies, rather than conduct a detailed
examination of the effectiveness of each agency's personnel
practices. We did not attempt to determine the merits of individual
EEO or adverse action cases. Finally, our work was not aimed at
evaluating or endorsing the policies, practices or procedures of EEOC
or MSPB in handling employee complaints.
To compare the EEO practices of these intelligence agencies with
those of other federal agencies, we reviewed appropriate statutes and
guidance from EEOC and OPM. We compared these requirements with
intelligence agency practices by reviewing EEO-related agency
regulations. We did not directly evaluate non-intelligence agency
practices. We examined statistical reports on complaint processing
and workforce profile to compare intelligence agency practices with
those of other federal agencies. We accepted agency EEO statistics
as reported to EEOC and did not conduct independent reliability
assessments on this data. We reviewed selected court cases where
employees had sued the intelligence agencies for discrimination to
examine how intelligence agency cases are handled in court
proceedings. In addition, we met with EEO officials from each agency
to discuss the full range of their programs. We also met with EEOC
officials to get their views on intelligence agency programs to
determine how these agencies compare with programs administered by
other agencies.
To compare the adverse action practices of these intelligence
agencies with those of other federal agencies, we identified and
reviewed appropriate regulations and statutes. We then compared
these governmentwide requirements to intelligence agency requirements
by reviewing agency adverse action regulations. We did not directly
evaluate non-intelligence agency practices. At NSA and DIA we
conducted detailed reviews of all available adverse action case files
from 1993 and 1994. We reviewed these 40 case files to determine
whether NSA and DIA were following their own adverse action
procedures. At MSPB we conducted detailed reviews of all available
case files on CIA, NSA, and DIA employee appeals. We reviewed these
14 cases (dating from 1989 to 1994) to examine how intelligence
agency cases are handled in the MSPB appeal process. In addition, we
met with personnel and legal officials from each agency to discuss
their procedures as well as specific adverse action cases. We also
met with MSPB officials to get their views on intelligence agency
adverse action appeals.
To determine whether adverse action practices at CIA, NSA, and DIA
could be standardized with those of other agencies, we performed a
number of audit tasks. In our reviews at NSA, DIA, and MSPB
(discussed previously) we examined case files to determine the extent
to which these files contained classified or declassified
information. We also examined publicly available EEO court case
files to determine the types of information present and whether
intelligence agencies were able to remove classified information from
personnel related documents. We also reviewed these intelligence
agencies' summary removal authorities. Finally, we met with
personnel and legal officials from CIA, NSA, DIA, EEOC, and MSPB. In
these meetings, we discussed the unique requirements of intelligence
agencies, focusing on potential risks to national security and ways
to minimize them.
Our work was impaired by a lack of full cooperation by CIA officials.
These officials denied us pertinent documents and other information
related to our review. Most significantly, CIA officials would not
allow us to review case files, which made it impossible for us to
determine the extent to which CIA follows its own regulations. In
contrast, NSA and DIA officials cooperated fully with our review,
providing us with complete copies of their regulations and allowing
us to review case files.
We performed our review from October 1994 to November 1995 in
accordance with generally accepted government auditing standards.
These standards require that we consider work done by other auditors,
so we coordinated our review with the DOD Inspector General. DOD
Inspector General staff had performed two reviews (one of them
simultaneous to our review) on EEO practices at NSA; these reviews
were completed in April 1994 and September 1995.
Comments from CIA, DOD, and EEOC on a draft of this report and our
evaluation of them are presented in appendixes I, II, and III,
respectively. A summary of their relevant comments appears at the
end of chapters 2, 3, and 4. MSPB declined to provide any comments
on our report.
EEO PRACTICES ARE SIMILAR TO THOSE
OF OTHER FEDERAL AGENCIES
============================================================ Chapter 2
CIA, NSA, and DIA have EEO practices similar to those of other
federal agencies. These agencies are generally subject to
governmentwide mandates related to EEO and generally follow EEOC
regulations for EEO program management, planning, and reporting. EEO
discrimination complaints are processed just like in other federal
agencies, with procedures that involve internal investigations and
possible external proceedings by EEOC and U.S. district courts.
During fiscal years 1992 through 1994, the average time to process a
complaint at DIA was faster than the federal average. While
processing times at CIA and NSA were consistently slower than the
federal average, these agencies have recently made significant
strides in decreasing their processing times. These agencies have
relatively few EEO complaints compared with other federal agencies,
but characteristic with the rest of the federal government, the
number of complaints filed is rising. These intelligence agencies
have programs to increase the representation of minorities and women,
but the results of such programs lag behind the federal workforce as
a whole. CIA, NSA, and DIA directors have pledged to improve their
workforce diversity.
EEO MANDATES GENERALLY APPLY TO
INTELLIGENCE AGENCIES
---------------------------------------------------------- Chapter 2:1
CIA, NSA, and DIA are generally subject to the same EEO legislation
and executive orders as other federal agencies. Specifically, these
agencies must follow (1) title VII of the Civil Rights Act of l964,
(2) the Equal Pay Act, (3) the Age Discrimination in Employment Act,
(4) the Rehabilitation Act of 1973, (5) the Civil Rights Act of 1991,
and (6) Executive Order 11478. Taken together, these provisions
prohibit discrimination in employment based on race, color, religion,
sex, national origin, age, or physical limitation. They require
affirmative programs to promote equal opportunity and identify and
eliminate discriminatory practices and policies.
NSA and DIA also operate under DOD's EEO mandates. For example, DOD
Directive 1440.1, "The DOD Civilian Equal Employment Opportunity
Program," requires NSA and DIA to develop and implement affirmative
action programs so that minorities, women, and disabled individuals
are represented in the workforce as specified in EEOC and OPM
guidelines.\1 The directive also requires NSA and DIA to develop
procedures and implement affirmative action programs for women,
minorities, disabled individuals, and disabled veterans. NSA and DIA
are also required to develop a Federal Equal Opportunity Recruitment
Program for minorities and women and a comparable special recruitment
program for disabled individuals.
Although CIA, NSA, and DIA generally are subject to the same EEO laws
and requirements as other federal agencies, it has yet to be resolved
whether their summary removal authorities would preclude EEO-based
challenges in the federal courts, EEOC, or MSPB. In a case
challenging the way the DCI used his summary removal authority, the
United States Supreme Court found that Congress meant to commit
individual employee discharges to the director's discretion and his
decisions could not be reviewed by the courts pursuant to an appeal
under the Administrative Procedure Act.\2 Nevertheless, the Court
also found that federal courts could review constitutional challenges
to the director's use of this authority. Moreover, because the
Administrative Procedure Act is not an EEO statute, it is not clear
what the Court would do if presented with a challenge to the
director's summary removal authority under an EEO statute.\3
--------------------
\1 In 5 C.F.R. 720, OPM sets forth the regulations implementing 5
U.S.C. 7201, which requires each agency to establish an equal
opportunity recruitment program.
\2 Webster v. Doe, 486 U.S. 592, 600 (1988).
\3 The Directors of NSA and DIA have similar authority, as discussed
in further detail in chapter 3.
INTELLIGENCE AGENCIES FOLLOW
EEOC DIRECTIVES ON EEO
MANAGEMENT, PLANNING, AND
REPORTING
---------------------------------------------------------- Chapter 2:2
EEOC management directives provide broad guidance to the federal
agencies for managing their EEO programs. EEOC Directive 110 mirrors
29 C.F.R. part 1614, which establishes the broad framework for EEO
programs administered by federal agencies. In addition, EEOC
Management Directive 714 contains some requirements for federal
agency affirmative employment program management.
CIA, NSA, and DIA generally follow these EEOC directives for managing
their EEO programs. For example, these intelligence agencies have
established EEO staff positions,
created EEO offices that report directly to the agency director,
ensured that minority and female representation is considered in
all agency staffing and promotion actions, and
placed an emphasis on EEO hiring.
These intelligence agencies have also developed regulations that
formally incorporate EEOC Directive 110 provisions in administrative
manuals. For example, DIA's Civilian Personnel Manual 22-23 states
that, in performing their civilian personnel management duties, DIA
officials will not discriminate on the basis of age, race, sex,
national origin, marital status, or religious preference.
According to EEOC officials, CIA, NSA, and DIA also follow the
planning and reporting provisions of EEOC Management Directive 714.
Directive 714 requires each agency to analyze the current status of
its affirmative employment program elements and address such segments
as workforce composition, recruiting, hiring, promotions, and
removals. Agencies are to compare the representation of EEO groups
for various occupational and grade/pay categories in the agency's
workforce with the representation of the same occupational groups in
the appropriate civilian labor force. On the basis of their
analyses, agencies are to take steps to address barriers and problems
that restrict equal employment opportunities.
In addition, EEOC officials stated that these three intelligence
agencies generally (1) prepare the required plans in accordance with
requirements and (2) maintain current files on annual and multiyear
plans. EEOC officials also stated that CIA, NSA, and DIA file their
annual analysis of workforce reports and diversity profile reports in
a timely manner. The only difference between these intelligence
agencies and other federal agencies is that intelligence agencies
omit classified information on total agency workforce. However,
workforce diversity data is reported to EEOC annually as a percentage
of the total agency workforce.
EEO COMPLAINT PROCESS SIMILAR
TO PROCESSES AT OTHER FEDERAL
AGENCIES, BUT SLOWER AT CIA AND
NSA
---------------------------------------------------------- Chapter 2:3
COMPLAINT PROCESS SIMILAR
-------------------------------------------------------- Chapter 2:3.1
CIA, NSA, and DIA have developed systems for processing
discrimination complaints that are largely consistent with EEOC
Directive 110 and
29 C.F.R. part 1614. An aggrieved employee has the right to file a
formal discrimination complaint against the agency after first
consulting with an EEO counselor. The EEO agency counselor then has
30 to 90 days to conduct informal counseling and attempt to resolve
the issue during the precomplaint counseling phase. If attempts at
informal resolution fail, the aggrieved individual may then proceed
to file a formal complaint in writing with the agency. If the agency
accepts the complaint, it is assigned to an investigator who is
responsible for gathering information and investigating the merits of
the complaint. As per 29 C.F.R. part 1614, the agency is required
to conduct a complete and fair investigation of the complaint within
180-days after the formal complaint is filed--unless both parties
agree in writing to extend the period.\4
After the investigation is completed, these agencies will issue a
final decision based on the merits of the complaint, unless the
employee first requests a hearing before an EEOC administrative
judge. In this case, the administrative judge will issue findings of
fact and conclusions of law, which the agency may reject or modify in
making its final decision. Like other federal employees, an
intelligence agency employee who is dissatisfied with the agency's
final decision may appeal this decision to EEOC.\5
EEOC officials stated that EEO appeals from intelligence employees
are like the rest of the federal government, except for measures
taken to protect classified information. To protect national
security information, EEOC administrative judges, as well as
attorneys for employees, must have security clearances to review
national security information that may be relevant to each case.
Like other federal employees, CIA, NSA, and DIA employees who wish to
file EEO discrimination complaints may do so through civil actions in
U.S. district courts after exhausting administrative remedies.
Complainants can skip directly to district court if stages of the
appeals process are not completed in a timely manner.
--------------------
\4 29 C.F.R. part 1614 became effective in October 1992. It
established time frames that allow federal agencies up to 270 days to
complete the EEO discrimination investigation and issue agency final
decisions when EEOC hearings are not involved.
\5 Under this latter scenario, when an EEOC hearing is requested by
the complainant, the entire process is allowed to take up to 450
days.
COMPLAINT PROCESSING AT CIA
AND NSA SLOWER THAN AT OTHER
FEDERAL AGENCIES
-------------------------------------------------------- Chapter 2:3.2
EEOC compiles statistics on EEO complaint processing throughout the
federal government. Federal EEO discrimination complaints can be
closed through four methods: (1) dismissals, (2) withdrawals, (3)
settlements, and (4) merit decisions (which are agency final
decisions). EEOC calculates the average processing time for closing
formal EEO discrimination complaints by dividing the total number of
days that lapsed until a discrimination case was closed (for all
closed cases), by the total number of cases closed by the agency
(using any one of the four resolution methods). The complaint
processing data does not include the time expended by EEOC to process
appeals of agency final decisions.
Our review of complaint processing statistics, as reported by these
three intelligence agencies to EEOC, showed that DIA's processing of
EEO complaints is faster than the average of other federal agencies.
In contrast, CIA's and NSA's processing of EEO complaints was
consistently slower than at other federal agencies. However, all
three agencies substantially reduced their processing times in fiscal
year 1994--at a time when processing time for other federal agencies
showed only a moderate decline. Table 2.1 lists the average number
of days reported by the CIA, NSA, and DIA to process and close formal
EEO discrimination complaints from fiscal years 1992 to 1994.
Table 2.1
Comparison of Average Number of Days to
Process and Close Discrimination
Complaints (fiscal years 1992-94)
All
reporting
federal
Fiscal year agencies CIA NSA DIA
---------------------- ---------- ---------- ---------- ----------
1992 349 468 900 272
1993 366 472 966 345
1994 356 369 573 267
----------------------------------------------------------------------
NSA's processing times were the worst of the three intelligence
agencies, particularly in fiscal years 1992 and 1993. In April 1994,
the DOD Office of Inspector General issued a report that focused on
the adequacy of NSA's discrimination complaint process for resolving
allegations of race and sex discrimination. The Inspector General's
report concluded that, although the agency has reduced the number of
days needed to finalize a discrimination case, the average time to
complete a case was still well over the maximum 270 days allowed.
The Director of NSA's EEO office told us that NSA has implemented
several initiatives since the Inspector General's 1994 report
designed to reduce complaint processing time and improve the
management of EEO functions.
NUMBER OF EEO COMPLAINTS
RELATIVELY LOW BUT
INCREASING
-------------------------------------------------------- Chapter 2:3.3
Compared with other federal agencies, CIA, NSA, and DIA have
relatively few EEO complaints. For the federal workforce, from
fiscal years 1992 to 1994, there were six to eight EEO complaints per
1,000 employees. Comparing this rate with that of the CIA, NSA, and
DIA, we find that these intelligence agencies had a substantially
lower number of complaints per 1,000 employees during this period.
Since workforce data for the intelligence agencies is classified, we
cannot publish these comparative rates in this report.
Although the number of complaints is relatively low at CIA, NSA, and
DIA, the numbers have increased dramatically since fiscal year 1992.
The number of formal EEO complaints filed against CIA, NSA, and DIA
had increased by 185 percent from fiscal years 1992 to 1994. The
number of EEO discrimination complaints filed against the federal
sector, as a whole, is also increasing. Governmentwide, the number
of discrimination complaints filed against federal agencies increased
by 29 percent during this same time frame. Table 2.2 shows the
increase in EEO discrimination complaints filed in federal agencies,
as well as CIA, NSA, and DIA, during fiscal years 1992 through 1994.
Table 2.2
Number of EEO Discrimination Cases Filed
(fiscal years 1992-94)
Agency 1992 1993 1994
------------------------- ------------- ------------- -------------
CIA 16 29 55
NSA 15 23 39
DIA 9 7 20
All reporting federal 19,106 22,327 24,592
agencies
----------------------------------------------------------------------
EEOC officials stated that it would be difficult to identify the
reason for the lower rates or increasing complaints and that the
number of complaints is not indicative of the quality of a program.
A well-run program could result in a high number of complaints
because the program informed employees of their rights and
demonstrated that employees who had legitimate complaints could
obtain redress. However, it is possible that a poorly run program
could result in a high number of complaints because the program
failed to reduce discriminatory behavior by managers. Per EEOC, part
of the increase in the number of complaints may be due to publicity
regarding new statutes and a number of successful, high-profile cases
involving federal employees. For example, a highly publicized class
action suit was initiated in 1992 against the CIA by nine female case
officers, who were provided relief in a 1995 settlement.
Another potential factor for increased complaints is individual
initiatives taken by these agencies to publicize their
discriminations complaints programs. EEOC cited the following
examples of intelligence agency initiatives to publicize their
complaint processing program that may have encouraged employees to
come forward with allegations of discrimination. During fiscal year
1992, DIA developed a quarterly EEO newsletter to increase the
awareness of the discrimination complaints program. During fiscal
year 1993, DIA restructured the EEO complaint process and began
placing posters of EEO counselors throughout the agency. In fiscal
year 1994, NSA issued agencywide memoranda concerning prohibitions
against reprisal and sexual harassment, explaining the employee's
right to file a complaint. According to EEOC, the increased numbers
may also represent employees who had been discriminated against in
the past but had not filed because they were afraid of reprisals or
perceived an environment that discouraged them from filing
complaints.
INTELLIGENCE AGENCIES HAVE
WORKFORCE DIVERSITY PROGRAMS,
BUT RESULTS LAG BEHIND OTHER
AGENCIES
---------------------------------------------------------- Chapter 2:4
INTELLIGENCE AGENCY GOALS,
PROGRAMS, AND RECRUITING
EFFORTS
-------------------------------------------------------- Chapter 2:4.1
Like other federal agencies, CIA, NSA, and DIA have established broad
EEO goals for achieving workforce diversity. For example, DIA has
established numerous goals, such as improving minority representation
at all levels in the agency, promoting women and minorities at a rate
at least equal to their representation in the workforce, and
proactively recruiting minority employees.
Special oversight programs have been implemented by CIA, NSA, and DIA
to assist in meeting affirmative action diversity goals. For
example, promotion panels at the agencies include minority and women
representatives. The DOD Inspector General reported that NSA has
been conscientious concerning the makeup of its promotion boards.
The duties of the promotion boards and the required
composition--membership is to include women and minority
representatives--are prescribed in NSA regulations. The requirement
for board membership also applies to higher level promotions.
For recruiting new minority employees, CIA, NSA, and DIA have special
college scholarship programs. At the behest of Congress, each of the
intelligence agencies has initiated special scholarship programs to
improve workforce diversity in critical skill categories. Such
programs are to be used by each of the intelligence agencies to
improve diversity and attract highly qualified applicants.
DIVERSITY RESULTS LAG BEHIND
OTHER AGENCIES
-------------------------------------------------------- Chapter 2:4.2
OPM and EEOC adopted the civilian labor force as the standard for
measuring diversity within the federal government.\6 The 1990
civilian labor force, based on 1990 census data, has remained the
federal standard for EEO representation since 1990. The civilian
labor force was 21.8 percent minority and 45.7 percent women.
Minority groups in the civilian labor force are further broken down
with African-Americans at 10.3 percent, Hispanics at 8.1 percent,
Asian-Pacifics at 2.8 percent, and Native Americans at 0.6 percent.
For women and minority representation, CIA, NSA, and DIA were below
the civilian labor force standard and the federal workforce
percentages during fiscal years 1992 through 1994. In terms of
individual minority categories, these agencies had mixed success in
meeting the civilian labor force representation rate for African-
Americans during fiscal years 1992 through 1994. For Hispanic,
Asian- Pacifics, and Native American representation, CIA, NSA, and
DIA were below the civilian labor force standard. Figures 2.1, 2.2,
and 2.3 compare workforce diversity for EEO categories at the
intelligence agencies with diversity in the federal workforce and the
civilian labor force.
Figure 2.1: Percentages of
Minorities and Women in Three
Intelligence Agencies Compared
With Percentages in the Federal
Workforce and the Civilian
Labor Force (fiscal years
1992-94)
(See figure in printed
edition.)
Figure 2.2: Percentages of
African-Americans and Hispanics
in Three Intelligence Agencies
Compared With Percentages in
the Federal Workforce and the
Civilian Labor Force (fiscal
years 1992-94)
(See figure in printed
edition.)
Figure 2.3: Percentages of
Asian-Pacifics and Native
Americans in Three Intelligence
Agencies Compared With
Percentages in the Federal
Workforce and the Civilian
Labor Force (fiscal years
1992-94)
(See figure in printed
edition.)
--------------------
\6 While the term "civilian labor force" is in common usage for
federal EEO issues, the actual statistics used are "civilian
availability data." The civilian availability data represents
adjustments made to the civilian labor force to reflect differences
between the general workforce and the federal workforce. OPM, the
Census Bureau and EEOC work jointly to make these adjustments and
create the civilian availability data.
AGENCY DIRECTORS PLEDGE
IMPROVEMENTS
-------------------------------------------------------- Chapter 2:4.3
In public statements made in congressional hearings, the directors of
each of the intelligence agencies acknowledged their agencies'
workforce diversity shortcomings.\7 These officials stated that
problems with recruitment, promotion, and retention of minorities and
women continue to plague the work environment of intelligence
agencies. Further, these officials also pledged improvements in the
diversity of their workforces and related efforts in moving their
respective agencies closer to the civilian labor force guidelines in
every category.
--------------------
\7 CIA, NSA, and DIA directors testified in a public hearing on
September 20, 1994, before the House Permanent Select Committee on
Intelligence.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 2:5
In commenting on a draft of this report, DOD concurred with our
discussion of EEO practices at NSA and DIA. CIA comments did not
address EEO issues. EEOC officials clarified comments we attributed
to them, and we made revisions as appropriate.
ADVERSE ACTION REGULATIONS, EXCEPT
FOR EXTERNAL APPEALS, ARE SIMILAR
TO THOSE OF OTHER FEDERAL AGENCIES
============================================================ Chapter 3
Although the intelligence agencies are exempt from key adverse action
statutes, their regulations (at CIA) and actual practices (at NSA and
DIA) are similar to those of other federal agencies in many ways.
The internal regulations at NSA and DIA are almost identical to
standard federal regulations. Further, our review of case files
indicates that NSA and DIA are closely following their regulations.
NSA and DIA have statutory authority to summarily remove employees in
national security cases, but agency implementing regulations still
provide employees with basic protections. The internal CIA
regulations we were given access to are similar to those in other
agencies and provide some employee protections. However, the
Director of CIA has carte blanche authority to waive all protections
and summarily remove CIA employees. With respect to external
appeals, only military veteran employees at NSA and DIA can appeal to
MSPB.\1 No employees at CIA can appeal to MSPB. There is no national
security rationale for the different treatment of veterans and
nonveterans at the different agencies.
--------------------
\1 The term "military veteran employees," refers to employees who
were given preferences under the Veterans Preference Act of 1944.
These employees, also known as Preference Eligible, will be referred
to as veterans in the remainder of this report.
INTELLIGENCE AGENCIES HAVE
LEGAL EXEMPTIONS FROM FEDERAL
PRACTICES
---------------------------------------------------------- Chapter 3:1
Personnel at CIA, NSA, and DIA are exempt from key statutory
provisions that provide federal employees with certain protections in
the course of agency adverse actions. Specifically, all CIA
employees and NSA and DIA non-veteran employees are exempt from the
provisions of
5 U.S.C. 7511-7513 covering suspensions (for more than 14 days),
removals, and other actions. Therefore, employees at these agencies
have no statutory right to adverse action procedural protections
including an advance written notice; the opportunity to reply; the
right to representation; a final written decision; and, most
importantly, an external appeal to the MSPB.
NSA AND DIA INTERNAL PRACTICES
ARE ALMOST IDENTICAL TO THOSE
OF OTHER AGENCIES
---------------------------------------------------------- Chapter 3:2
ADVERSE ACTIONS AT NSA AND
DIA
-------------------------------------------------------- Chapter 3:2.1
NSA and DIA initiate adverse actions when employees have violated
some workplace standard or rule. Agency administrative and personnel
regulations generally prescribe the acceptable employee code of
conduct and identify specific infractions that could lead to adverse
actions or other sanctions against the employee. Agencies consider a
number of factors in initiating adverse actions. For example, DIA
suspension actions must consider (1) repetition of offense, (2)
seriousness of offense, (3) short-term or long-term impact of
offense, (4) effect of penalty on the employee and other DIA
employees, (5) effect on workload, (6) consistency of penalty with
similar offenses, and (7) specific sanctions required by laws and
regulations.
During calendar years 1992 through 1994, NSA and DIA initiated
adverse actions against 60 employees. Of these cases, 5 involved
suspensions of more than 14 days, 34 involved removals, and 21 cases
involved a resignation or retirement in lieu of an adverse action.
In the latter 21 cases, which were technically not adverse actions,
the employee either resigned or retired before or during adverse
action proceedings. CIA did not provide data on its adverse actions.
NSA AND DIA REGULATIONS AND
PRACTICES INCLUDE STANDARD
EMPLOYEE PROTECTIONS
-------------------------------------------------------- Chapter 3:2.2
While NSA and DIA are exempt from 5 U.S.C. 7511-7513, they have
incorporated the same employee protections into agency personnel
regulations governing adverse actions. Written in language that is
almost identical to 5 U.S.C. 7513, these regulations entitle
employees to (1) advance notice, (2) an opportunity to reply, (3)
legal representation, and (4) a written final decision. Our review
of 40 case files from 1993 and 1994 at these agencies showed that NSA
and DIA closely complied with their regulations.
In addition, NSA and DIA adverse action decisions were fully
supported by backup documentation. This documentation not only
supported the agency position on the facts of the case but also
indicated that procedural steps had been followed. For example, NSA
and DIA case files had clear documentation to prove delivery of key
documents to the employee (including copies signed by employees,
registered mail receipts, and memos to the file). In several NSA
cases, there were statements, signed by the employees, stating that
they had reviewed their official case file on the specific adverse
action.
NSA and DIA appeared to have accommodated employees in many
instances. For example, NSA and DIA provided employees with
extensions (up to 30 days) to reply to agency charges. NSA and DIA
considered documents that were submitted late. For disability cases,
both agencies sought alternative positions or disability retirement
for the employees. In addition, NSA and DIA have alcohol treatment
or referral programs, which were offered to employees in several
cases.
NSA AND DIA SUMMARY REMOVAL
PROCEDURES ALSO INCLUDE
EMPLOYEE PROTECTIONS
-------------------------------------------------------- Chapter 3:2.3
NSA and DIA have statutory authorities to summarily remove employees
when national security concerns arise in the course of adverse
actions. First, the directors of these agencies can remove employees
whenever (1) the action is in the interest of the United States and
(2) procedures prescribed in other provisions of law (i.e., their
normal removal procedures) cannot be invoked consistent with the
national security.\2 The directors' decision is final and not subject
to external appeal to MSPB.\3 Second, NSA and DIA (as well as other
agencies)\4 have statutory authority to suspend and remove employees
under 5 U.S.C. 7532.\5 This authority is to be invoked only when
necessary in the interest of national security. The decisions of the
NSA and DIA directors under 5 U.S.C. 7532 are final and may not be
appealed.
Under NSA and DIA regulations that implement their directors' summary
removals and 5 U.S.C. 7532 removals, employees still have procedural
protections similar to those enjoyed by other federal employees under
5 U.S.C. 7513. Employees must be provided (a) a written statement
of the charges, (b) an opportunity to reply, and (c) a written
decision. In addition, under NSA and DIA director removals,
employees can review documentation relevant to their case. NSA and
DIA have never used these authorities to suspend or remove employees.
--------------------
\2 These authorities for NSA and DIA are contained in 50 U.S.C. 833
and 10 U.S.C. 1604(e), respectively.
\3 Under 10 U.S.C. 1604(e), the DIA director's summary removal
decisions can be appealed to the Secretary of Defense.
\4 A number of other agencies are covered by this provision.
\5 5 U.S.C. 7531 originally gave this authority to the Secretary of
Defense. Pursuant to 5 U.S.C. 7531(9), NSA and DIA were given this
authority in May 1988 by presidential designation.
CIA INTERNAL REGULATIONS ARE
SIMILAR TO OTHER AGENCIES,
EXCEPT FOR DCI'S CARTE BLANCHE
AUTHORITY
---------------------------------------------------------- Chapter 3:3
CIA REMOVAL REGULATIONS
OFFER SOME EMPLOYEE
PROTECTIONS
-------------------------------------------------------- Chapter 3:3.1
The CIA's internal adverse action regulations provide employee
protections similar to those offered by other federal agencies, at
least in cases of removal.\6 The CIA personnel regulation calls for
employees to get advance notice of a proposed removal, at least 10
days to reply, and final notice of a decision provided by the
Director of Personnel (but not necessarily in writing). Notably
absent from the CIA regulation is the right to representation
provided to other federal employees by 5 U.S.C. 7513(b)(3). CIA
officials told us, however, that employees do have the right to
counsel and that many employees hire attorneys in such cases. CIA
regulations also include the right to an internal appeal, which
allows employees to submit their appeals in a sealed envelope to be
opened only by the DCI.
We did not review CIA case files (as discussed on p. 15), so we were
unable to verify the extent to which CIA actually provides employees
with any of the protections noted in its personnel regulations. We
were also unable to verify whether employees are allowed
representation by attorneys in adverse action proceedings.
--------------------
\6 While CIA officials allowed us to review their entire regulation
on removing employees, they did not allow us to fully review their
regulations on other types of adverse actions, such as suspensions.
The limited information we saw on suspensions made no reference to
employee protections similar to those in 5 U.S.C. 7513.
EMPLOYEE PROTECTIONS WAIVED
UNDER DCI'S CARTE BLANCHE
AUTHORITY
-------------------------------------------------------- Chapter 3:3.2
The DCI has statutory authority to remove CIA employees whenever he
or she believes it necessary or advisable in the interest of the
United States. The DCI's decisions are generally not reviewable
outside the agency. Under the CIA implementing regulation, the DCI
has carte blanche authority to remove employees and can override any
employee protections. A section of the regulation on "termination
without procedures" lays out this broad authority.\7
"Pursuant to statutory authority, an employee may be terminated
at any time without regard to any procedural steps set forth in
this regulation or elsewhere when the DCI, at his discretion,
deems it necessary and advisable in the interest of the United
States."
According to the regulation, such "interests of the United States" do
not have to be related to national security. Further, the regulation
states that the DCI's removal authority is not constricted, limited,
affected, or otherwise controlled by any of the procedures set forth
in the regulation or any other regulation, document, or law. The
regulation also states that the DCI's authority abrogates any
interest or privileges of any employee that might otherwise be
created or established by this regulation or any other regulation,
document, or law.
The CIA's personnel regulation also exempts the DCI from
accountability for any removal decision. Under the regulation, the
DCI's decision to remove an employee is entirely discretionary, and
the reasons for the decision can be withheld from anyone. The CIA
regulation specifically states
"Notwithstanding any provision of this regulation, or any other
regulation, document, or law, the DCI need not provide to anyone
the reasons for such termination if he decides not to do so.
Any decision not to provide the reasons for termination is
entirely discretionary, and a national security basis for such a
decision is not required."
We did not review case files (as discussed on p. 15), so we could
not determine the extent to which the DCI's carte blanche authority
has been used to override employee protections enumerated in CIA
personnel regulations.
--------------------
\7 According to the CIA's personnel manual, the DCI authority to
remove employees can be delegated to lower level CIA officials as
well.
COMPARISON WITH NSA AND DIA
AUTHORITIES
-------------------------------------------------------- Chapter 3:3.3
NSA and DIA personnel regulations do not provide the carte blanche
removal authority that CIA regulations confer on the DCI. As
discussed, both NSA and DIA directors have statutory authorities to
summarily remove employees, but these agencies' implementing
regulations provide for some employee protections. In addition, the
NSA and DIA summary removal authorities, unlike the CIA's authority,
are linked to national security.
MOST EMPLOYEES HAVE NO EXTERNAL
APPEAL TO MSPB
---------------------------------------------------------- Chapter 3:4
APPEALS TO MSPB
-------------------------------------------------------- Chapter 3:4.1
Per 5 U.S.C. 7511-7513, most federal employees can appeal agency
adverse actions to MSPB. Appealable actions include suspensions of
more than 14 days and removals. In such appeals, employees have a
right to a hearing and representation by an attorney or other
representative, in accordance with MSPB regulations.
NSA AND DIA VETERANS'
APPEALS
-------------------------------------------------------- Chapter 3:4.2
Most employees at NSA and DIA have no right to appeal adverse actions
to MSPB. However, pursuant to the Veteran's Preference Act, veterans
(who make up approximately 21 percent and 32 percent of NSA and DIA
civilian workforces) are entitled to appeal adverse actions to MSPB.
According to NSA and DIA regulations, when a final decision notice is
issued to an NSA or DIA veteran on a matter appealable to the MSPB,
the veteran must be provided (1) notice of the time frame for appeal
and the address of the appropriate MSPB office, (2) a copy of MSPB
regulations, (3) an MSPB appeal form, and (4) notice of appealable
rights to a grievance procedure.
Based upon our review of related legislative history and our
discussions with agency officials, there are no national security
reasons for the distinction between veteran and nonveteran employees
at NSA and DIA. That is, veteran appeals to MSPB present the same
risk to national security as nonveteran appeals. According to DOD,
the differentiation stems from the Veteran's Preference Act of 1944
and is thus based upon the debt this nation owes its veterans and is
not based on any conventional national security analysis.
NO CIA EMPLOYEE APPEALS TO
MSPB
-------------------------------------------------------- Chapter 3:4.3
Regardless of whether they are veterans, CIA employees have no
general right to appeal adverse actions to MSPB. However, this lack
of jurisdiction has not stopped CIA employees from filing appeals in
at least three cases in the last 6 years. MSPB has initially
entertained these cases and requested CIA cooperation. CIA has
uniformly responded that the DCI is neither required, nor prepared,
to have MSPB review agency decisions. In these three cases, MSPB
held that it lacked jurisdiction to hear the appeal and affirmed the
CIA decisions.
Again, our review of related legislative history and our discussions
with officials from CIA, NSA, and DIA did not yield any convincing
rationale why veteran appeals to MSPB should be treated differently
based on whether the veteran works at CIA, NSA, or DIA. CIA legal
staff told us simply that CIA is exempt from the Veterans Preference
Act of 1944 and, for reasons of national security, CIA employees can
only appeal decisions to the DCI. However, NSA and DIA officials
asserted that adverse action appeals at all three agencies raise
equal risks to national security because each agency deals with very
sensitive information.
MSPB REVIEW LIMITED
-------------------------------------------------------- Chapter 3:4.4
The MSPB does entertain appeals from NSA and DIA veterans but
generally will not review agency determinations revoking security
clearances. Since security clearances are a mandatory condition of
employment, loss of a clearance can result in suspension or removal.
In a case involving a civilian Navy employee removed from his job
when the Navy denied him a security clearance, the U.S. Supreme
Court found that the denial of a clearance was not an enumerated
adverse action subject to MSPB review.\8 The Court stated that grant
or denial of a security clearance is a sensitive and inherently
discretionary decision that MSPB was not qualified to judge. In
these types of cases, which can also include the revocation of
security clearances by nonintelligence agencies, the MSPB generally
can only determine whether the employee was granted appropriate
procedural protections.
--------------------
\8 Department of the Navy v. Egan, 484 U.S. 518 (1988).
AGENCY COMMENTS AND OUR
EVALUATION
---------------------------------------------------------- Chapter 3:5
CIA stated that, in removal decisions, the DCI is accountable to
several parties. First, the DCI is accountable to the President and
Congress. Second, the DCI is accountable to the Inspector General
and the President's Intelligence Oversight Board, which might review
employee complaints of unfair removal. Our report accurately quotes
the CIA regulation which clearly indicates that the DCI is
accountable to no one for removals. We cannot verify CIA statements
that it provides removal information to these other parties because
CIA did not provide us with access to case files or other
corroborating evidence.
DOD stated that NSA and DIA, despite exemptions from standard
practices regarding adverse actions, have attempted to mirror the
intent of the legislation to the maximum extent consistent with
national security. DOD further stated that NSA and DIA adequately
protect employee rights as compared to the protections offered by the
MSPB.
CONGRESS COULD GRANT INTELLIGENCE
EMPLOYEES STANDARD FEDERAL
PROTECTIONS WITHOUT UNDUE RISK TO
NATIONAL SECURITY
============================================================ Chapter 4
Adverse action protections for employees at CIA, NSA, and DIA could
be standardized with those of the rest of the federal government
without presenting an undue threat to national security. For many
years, a substantial number of NSA and DIA employees (i.e., veterans)
have had the same statutory adverse action protections as other
federal employees. In recent adverse actions at NSA and DIA, almost
no case files contained national security information. If CIA, NSA,
and DIA employees were granted standard federal adverse action
protections, these agencies could protect national security
information by removing classified information from case files and,
in cases where that is not possible, by providing security clearances
to MSPB administrative judges and employee attorneys. Where neither
of these steps would be adequate to protect national security
information, these intelligence agencies could use their existing
authorities to summarily remove employees. These authorities are not
reviewable outside the agencies, so there would be no risk of
disclosure of classified information.
NSA AND DIA ILLUSTRATE THAT
INTELLIGENCE EMPLOYEES CAN HAVE
STANDARD FEDERAL PROTECTIONS
---------------------------------------------------------- Chapter 4:1
NSA and DIA experiences demonstrate that intelligence agencies can
provide their employees with standard protections against adverse
actions. As discussed in chapter 3, NSA and DIA adverse action
practices are very similar to those of other federal agencies. The
internal practices at NSA and DIA are almost identical to those laid
out for the rest of the federal government in 5 U.S.C. 7513.
Veterans at NSA and DIA (who make up approximately 21 and 32 percent
of their respective civilian workforces), have the same external
appeal rights as other federal employees. While officials from NSA
and DIA told us that veteran appeals to MSPB were a risk to national
security, these agencies have never used their summary removal
authorities to prevent a veteran appeal from going to MSPB.
Further, the House Committee on Post Office and Civil Service, in a
1989 report discussing Civil Service Due Process Amendments, stated
that it was not aware of any problems due to the additional
procedural protections veterans receive under the Veterans'
Preference Act of 1944. According to the committee report,
"Permitting veterans in excepted service positions [such as employees
at NSA and DIA] to appeal to the Merit Systems Protection Board when
they face adverse actions has not crippled the ability of agencies
excepted from the competitive service to function."
APPLICABILITY TO CIA
-------------------------------------------------------- Chapter 4:1.1
Our review did not identify any reason why the NSA and DIA
experiences would not be applicable to CIA as well. Regarding
internal removal practices, aside from the DCI's summary removal
authority, the CIA regulations are not substantially different from
those outlined in section 7513. Regarding external appeals,
employees of all three agencies have access to classified
information, the disclosure of which can do grave damage to our
national security. CIA suggested that its employees have access to
more sensitive information because of its clandestine operations and
its higher percentage of employees under cover. In contrast, NSA and
DIA officials said that, although individual cases would vary, the
sensitivity of intelligence information was equivalent across the
three agencies. In comparing its external adverse action practices
with those at CIA, NSA wrote to us
"Certainly, disciplinary or performance based proceedings at
both agencies raise equal risks to national security information
and both agencies' work involves obtaining foreign intelligence
information from extraordinarily sensitive and fragile
intelligence sources and methods."
RECENT NSA AND DIA CASES RAISE
FEW NATIONAL SECURITY CONCERNS
---------------------------------------------------------- Chapter 4:2
We reviewed recent NSA and DIA cases to determine whether they
contained national security information. In doing so, we used an
agency definition of "national security" as those activities that are
directly related to the protection of the military, economic, and
productive strength of the United States, including the protection of
the government in domestic and foreign affairs, against espionage,
sabotage, subversion, unauthorized disclosure of intelligence sources
and methods, and any other illegal acts that adversely affect the
national defense. If the information's unauthorized disclosure could
reasonably be expected to cause damage to the national security, it
should be classified at the confidential level or higher, in
accordance with Executive Order 12356.\1
We found that adverse action case files generally contained no
national security information. We reviewed all available NSA and DIA
adverse action cases for 1993 and 1994. Of these 40 cases, 39 cases
(or 98 percent) contained no classified national security
information.\2 Only one file, involving an employee removed for
unsatisfactory performance, contained classified information. In
this case file, the employee's poor performance was documented in a
memo that contained classified information.
The main reason that these files are void of classified material is
that the nature of the cases do not involve intelligence sources and
methods. The adverse actions were generally routine matters that any
federal agency might handle. For example, adverse actions were
initiated for a variety of reasons, including criminal misconduct,
administrative misconduct, financial misconduct, drug abuse,
unsatisfactory performance, and loss of security clearance.
Depending on the nature of the adverse action, the case files
generally consisted of the following types of routine unclassified
documents: financial records, credit histories, medical evaluations,
attendance documents, time cards, leave letters, performance
appraisals, warning letters, work plans, police reports, criminal
records, court documents, and reports of security investigations.
Even in the "security" cases where the agency revoked an employee
security clearance, the documentation (related to criminal matters)
was not related to national security. That is, there were no cases
where the employees were suspected of purposefully compromising
national security information.
NSA and DIA officials stated that the lack of classified information
was due to careful NSA and DIA efforts to remove classified
information from the case files. NSA and DIA seek to avoid exposure
of classified information by establishing, to the extent possible, an
unclassified administrative record that narrowly focuses the agency
defense to the employees conduct. Keeping national security
information out of files even before the case goes to the deciding
official enables the employee's attorney and the MSPB administrative
judge to see the same material the agency deciding official sees.
According to these agencies, they must also ensure there is enough
information in the file for the deciding official to make a
defensible decision. If such steps do not eliminate the need for
classified information to be used in the case, the agencies
declassify such information in relevant agency records.
CIA would not allow us to review case files, so we can make no
judgments on whether their adverse action cases contained classified
national security information.
In response to our observations, officials from CIA, NSA, and DIA
stated that all adverse action cases require that the agency
establish how the employee's misconduct affects the efficiency of the
agency by matching performance or conduct standards against employee
behavior. They stated that sensitive information often permeates
employee position descriptions. Accordingly, they stated that such
information must be protected from public disclosure, regardless of
whether or not the information is classified.
Our review indicated that the agencies have overstated the
sensitivity of the information contained in the vast majority of
adverse action cases. If the information was as sensitive as the
agencies indicate, the agencies would be required to classify it in
accordance with their own security procedures. Also, as discussed
later, these agencies routinely release these types of personnel
records to external forums (e.g., MSPB, EEOC, or the federal courts)
in an unclassified form.
--------------------
\1 Executive Order 12356 provides the basis for classifying national
security information.
\2 Three additional NSA cases from this period were not available to
review for a variety of reasons. NSA officials stated that one of
these cases contained classified information, but we were unable to
review the file to verify this.
AGENCIES COULD REMOVE
CLASSIFIED INFORMATION AND
PROVIDE SECURITY CLEARANCES TO
JUDGES AND ATTORNEYS
---------------------------------------------------------- Chapter 4:3
AGENCIES COULD REMOVE
CLASSIFIED INFORMATION FROM
CASE FILES
-------------------------------------------------------- Chapter 4:3.1
If subject to standard federal practices, the agencies could continue
to remove classified information from adverse action case files. As
discussed previously, NSA and DIA assert that they have been very
diligent and successful in keeping classified information out of
adverse action case files.
CIA, NSA, and DIA already have experience preparing case files for
external appeals in adverse action and/or EEO cases. In our review
of case files at MSPB, we found that CIA, NSA and DIA had all been
able to successfully support their case with documents at the
unclassified level.\3 Several of these documents were formerly
classified, including employee position descriptions, records of
investigations, and related memoranda.
In our review of EEO case files at federal courts, we found similar
instances of declassified agency documents. For example, in one
recent case, CIA declassified several secret documents. While some
sections had been deleted from these documents, they still provide
information on CIA case officers such as types of postings, typical
duties, types of sources recruited, basis for performance appraisals,
number of case officers in a typical CIA station, and the importance
of cover assignments. Assuming that the CIA was careful in preparing
these documents (since the files are publicly available), this
example shows that information on employee performance in very
sensitive intelligence operations can be converted to the
unclassified level.
--------------------
\3 The CIA example was a retirement case. As discussed in chapter 3,
CIA employees generally cannot appeal to MSPB in adverse action
cases.
AGENCIES COULD PROVIDE
CLEARANCES TO JUDGES AND
ATTORNEYS
-------------------------------------------------------- Chapter 4:3.2
If intelligence agencies were subject to standard adverse action
practices, they could also protect national security information by
providing security clearances to MSPB administrative judges and
employee attorneys. Agency officials have not provided any security
clearances to MSPB administrative judges or shared classified
information with them; however, they stated that this would be
possible. MSPB officials noted that their Board members and
administrative judges go through rigorous background checks as part
of their nomination process.
The intelligence agencies already deal with administrative judges
with security clearances in EEO cases. According to officials, both
CIA and the Justice Department have processed security clearances for
EEOC administrative judges. All the agencies have been able to work
with EEOC administrative judges to conduct EEOC hearings while still
protecting national security information.
Intelligence officials have also dealt with employee attorneys with
security clearances in EEO cases. While NSA and DIA will not
initiate security clearance actions solely for the purpose of
employee representation, CIA officials said they maintain a list of
cleared attorneys for their employees, and the agency will process a
clearance for an employee attorney. To date, all of the agencies
have been able to work with employee attorneys to conduct EEOC
hearings while still protecting national security information.
A recent EEO court case demonstrates that intelligence agencies can
provide employee attorneys with access to classified information and
agency employees without undue risk to national security. In this
class action case, CIA cleared several employee attorneys to the
secret level and provided them with access to approximately 4,000
classified documents. In addition, CIA provided these attorneys with
dedicated offices at CIA Headquarters and provided them with secure
communications. For example, a special classified cable channel was
established for privileged and classified communications between the
attorneys and CIA employees worldwide.
AGENCIES QUESTION OUR
COMPARISON OF ADVERSE ACTION
CASES TO EEO CASES
-------------------------------------------------------- Chapter 4:3.3
Officials from CIA, NSA and DIA took issue with our comparison of
adverse action cases with EEO cases, saying that EEO cases were not
as sensitive and, therefore, created fewer risks to national
security. We disagree with these comments because our review
demonstrated that, while individual cases will vary, the same types
of information may appear in both adverse action and EEO cases. For
example, when a DIA employee filed an MSPB complaint for prohibited
personnel practices (discrimination) and found out MSPB had no
jurisdiction (because she was not a veteran), she withdrew her case
to pursue it through EEO channels. That is, the same issue (based on
the same evidence) could potentially be pursued through either MSPB
or EEOC. In fact, in fiscal year 1994 (the most recent data
available), 35.9 percent of EEOC cases involved adverse actions or
performance and 27.3 percent of MSPB cases involved discrimination.
As further evidence, NSA expressed deep concerns over the possible
release of classified information in some EEO cases when employees
use performance appraisals and job descriptions to make the point
that they should have received a benefit that went to another. In
such cases, an appeal to MSPB will present no more risk to national
security than do current appeals to EEOC.
WHERE RISKS REMAIN, AGENCIES
COULD USE THEIR SUMMARY REMOVAL
AUTHORITIES
---------------------------------------------------------- Chapter 4:4
NATIONAL SECURITY RISKS
COULD STILL EXIST IN SOME
CASES
-------------------------------------------------------- Chapter 4:4.1
Some national security risks could remain even after case files have
been declassified and judges and attorneys have received security
clearances. In declassifying documents for MSPB, there is still some
risk of public disclosure of sensitive information as the parties
advance their cases. For example, in a recent veteran's appeal to
MSPB, NSA officials told us that some significant national security
information was improperly disclosed through an inadvertent error.
In clearing judges and attorneys for access to classified
information, there may also be remaining risks. According to the
agencies, people who do not regularly deal with classified
information often do not appreciate the reasons that specific
information is classified or the steps necessary to ensure that such
information is not inadvertently disclosed. We found evidence of
this in our review of an EEO class action case involving CIA. An
undercover case officer alleged that the class action attorney
"carelessly used the words 'agency' and 'station' on the open
telephone line" in the country where she was actively operating.
Also, according to the agencies, employee attorneys may perceive it
as being in their interest to publicly disclose the information to
use it for leverage against the agencies. The government's authority
to prosecute such a disclosure of classified information is of little
solace once an intelligence source or method is lost. Moreover, the
government might not pursue such a prosecution for fear that more
classified information will be revealed.
Further, there is a risk that an agency will forfeit its position to
protect national security information. According to NSA, the risk of
disclosing sensitive information must be accorded far greater weight
than the merits of the case when negotiating settlements. There may
be cases in which hearings would involve exposure of or unacceptable
risk to national security information. The agency's only option in
these situations might be to settle the case on terms favorable to
the employee. NSA officials told us that such a case is now in the
administrative process.
NSA AND DIA COULD USE
SUMMARY REMOVAL AUTHORITIES
-------------------------------------------------------- Chapter 4:4.2
If NSA and DIA employee appeals to MSPB still presented unacceptable
risks to national security, these agencies could use their summary
removal authorities (as discussed in chapter 3). To date, NSA and
DIA have never used these authorities to suspend or remove employees.
NSA and DIA officials cited three reasons why they have never used
these authorities:
They believe that employees should be given their basic due process
rights whenever possible.
They have been diligent in removing classified information from
supporting documentation in adverse actions cases going to MSPB.
Few employees (only veterans) can appeal to MSPB, which greatly
reduces the need to use these summary authorities.
While these agency reasons imply that the issue of using these
authorities has never come up, that is not the case. NSA and DIA
officials said they have had cases (involving veterans eligible to
appeal to MSPB) where their agency would have used its director's
summary removal authority if the employee had not chosen to resign.
In at least one case, NSA officials, in hindsight, told us they now
regret that they did not use this authority. In all adverse actions
against veterans, these agencies made a conscious decision to not use
their summary removal authorities and accept some risk in allowing
the employee to appeal to MSPB. NSA and DIA officials stated that
they allowed these appeals to go to MSPB in order to provide the
veterans with their right to appeal, as derived from the Veteran's
Preference Act.
CIA COULD USE SUMMARY
REMOVAL AUTHORITY
-------------------------------------------------------- Chapter 4:4.3
If its employees had standard federal protections against adverse
actions, CIA (like NSA and DIA) could prevent sensitive cases from
reaching MSPB by using the DCI's summary removal authority (as
discussed in chapter 3). CIA implementing regulations, unlike NSA
and DIA regulations, do not guarantee any protections to employees,
nor do they require a link to national security. CIA officials
stated that this authority, although rarely used in recent years, has
been used in cases not related to national security such as
reductions in force. We did not review CIA case files (as discussed
on
p. 15) so we cannot make judgments on the frequency or propriety of
cases where the director's summary removal authority was used.
AGENCIES QUESTION BENEFITS AND
COSTS OF EXTERNAL APPEAL TO
MSPB
---------------------------------------------------------- Chapter 4:5
BENEFITS OF MSPB APPEAL
QUESTIONED
-------------------------------------------------------- Chapter 4:5.1
In response to our conclusion that standard employee protections
could be extended to intelligence agency employees, NSA officials
questioned the benefits of providing MSPB appeals since most agency
adverse actions are removals based on revocation of employee security
clearances.\4 Given that MSPB review of such cases is generally
limited to verification that the agency followed its own regulations
and given that NSA follows those regulations (both of which we
verified), NSA officials said there would be little significance in
appealing to MSPB. NSA wrote to us that "there is no reason to
believe extending MSPB appeal rights to all NSA personnel would be
more than mere eye wash for the employees."
DIA officials also questioned the significance of providing MSPB
appeals to all employees. While none of DIA's employee removals were
explicitly based on revocation of security clearances, agency
officials said that they could have used that justification to remove
many of the employees. That is, in cases where employees were
removed "for cause" related to criminal offenses (e.g., drug use or
fraud), DIA could have also revoked their clearances and removed them
for failure to meet a mandatory condition of employment.\5 DIA
personnel staff said it was administratively easier to remove
employees "for cause" than to revoke their clearance. They added
that if the employees had recourse to MSPB, DIA would change its
administrative procedures to remove employees by revoking their
clearances, since MSPB generally cannot review the substance of
security clearance determinations. This new strategy might have
worked only in cases where removal was closely related to clearance
issues, which represents four of seven (or 57 percent) of the DIA
adverse action cases we reviewed.
CIA officials questioned the value of MSPB appeals, given their
current practices. According to CIA's interpretation, there does not
have to be a link between the DCI's summary removal authority and
national security. That is, the DCI's discretion can be exercised
whenever he or she finds it in the generic "interests of the United
States," as opposed to the more specific "national security interests
of the United States." Thus, even if CIA employees could appeal
adverse actions to MSPB, the DCI could effectively preclude these
appeals by exercising the summary removal authority. For example,
CIA officials told us that the DCI's summary removal authority has
been used to implement reductions in force not related to national
security issues.
--------------------
\4 Of the 40 adverse action cases we reviewed, 33 were NSA cases and
17 of these (or 52 percent of NSA cases) involved revoking a security
clearance as a reason for removal.
\5 The ability to hold a security clearance is a mandatory condition
of employment at all the intelligence agencies.
INCREASED ADMINISTRATIVE
COSTS
-------------------------------------------------------- Chapter 4:5.2
Given their view that external appeals to MSPB may have little or no
real benefit for employees, officials from CIA, NSA, and DIA were
also concerned about the added administrative costs to prepare for
and participate in such appeals. Agency officials stated that the
burden to respond to increased filings and the concomitant
requirement to prepare agency files would be enormous. NSA and DIA
officials were particularly concerned about the discovery process (in
which employee attorneys can request large volumes of documentation),
because it was impossible to predict in advance how much
documentation will have to be declassified. NSA and DIA officials
were also concerned about clearance processing times (now averaging
205 days) for judges and attorneys and the time it would add to
adverse action proceedings. Finally, agency officials were concerned
about having to provide classified work space and storage facilities
for judges and attorneys.\6
Our observations from reviewing case files support these agency
comments. For example, MSPB appeal cases require a substantial
amount of additional preparation to defend the agency decision before
the MSPB. In addition, we recently testified on the federal redress
system, saying that because of the complexity of the system and the
variety of the redress mechanisms, it is inefficient, expensive, and
time-consuming.\7 For example, an employee alleging discrimination
(i.e., a "mixed case") can "shop around" for the best decision by
sequentially appealing agency decisions to an MSPB administrative
judge, the MSPB three-member Board, EEOC, and the Office of the
Special Counsel. At this point, an employee who is still unsatisfied
with the outcome can file a civil action in the federal court system.
This redress process can take years and cost an agency thousands of
dollars for a single case.
However, Congress provided the intelligence agencies with their
exemption from standard practices (e.g., MSPB appeals) based on
national security considerations, rather than administrative
efficiency (i.e., the ability to suspend or remove employees with
minimal administrative effort). Congress is currently studying the
federal redress system and to the extent that reform occurs, cost as
well as administrative burdens may be reduced. Any changes made in
intelligence agency practices should be consistent with changes
Congress may make for all federal employees to reduce the costs and
time of the current system.
--------------------
\6 An MSPB spokesman, responding to our draft report, stated that
MSPB could handle classified cases differently to reduce the
administrative costs. For example, he said they could treat all
classified cases as appellate cases and hear them in Washington.
This would speed the process and reduce the number of MSPB judges who
would require security clearances.
\7 Federal Employees Redress: An Opportunity for Reform
(GAO/T-GGD-96-42, Nov. 29, 1995).
LINKING CIA'S AUTHORITY TO
NATIONAL SECURITY
-------------------------------------------------------- Chapter 4:5.3
If CIA, NSA, and DIA employees were to receive the same adverse
action protections as employees at other federal agencies, we think
the directors of the three intelligence agencies should retain their
summary removal authorities so they can continue to handle internally
removals that could potentially compromise national security
information were appeals permitted outside the agency. Should
Congress take this action, however, we do not think there would be a
sound basis for the DCI continuing to exercise the summary removal
authority in cases not involving national security concerns as has
occurred in the past, for example to implement reductions-in-force.\8
Our work has shown that there is no national security reason for the
CIA being treated differently than NSA or DIA, and employees at all
three agencies deal with highly sensitive intelligence information.
Furthermore, it is clear that the unique missions of all three
agencies relate to national security. Thus, if the DCI's statutory
summary removal authority were amended to establish a link between
exercise of the removal authority and national security, it would
parallel the authorities currently provided the NSA and DIA
directors.
--------------------
\8 As discussed previously, the DCI's statutory removal authority is
not explicitly linked to national security, and the CIA's
implementing regulation states directly that there need not be a
national security reason for removal. Although the Supreme Court has
suggested that the DCI's summary removal authority is linked to
national security, neither it nor the lower federal courts have
directly addressed this issue.
CONCLUSION
---------------------------------------------------------- Chapter 4:6
If Congress wants to provide CIA, NSA, and DIA employees with
standard protections against adverse actions that most other federal
employees enjoy, it could do so without unduly compromising national
security as long as the agencies maintain their summary removal
authorities. To effectively ensure that CIA employees enjoy these
protections, Congress could amend current legislation to explicitly
link the CIA director's summary removal authorities to national
security.
AGENCY COMMENTS AND OUR
EVALUATION
---------------------------------------------------------- Chapter 4:7
CIA and DOD (responding for NSA and DIA) did not concur with our
conclusion that MSPB appeal rights could be extended to all
intelligence agency employees for two reasons.
First, CIA and DOD stated that our report did not adequately consider
the national security risks associated with such a change in policy.
The agencies stated that their extensive experience reveals that the
likelihood of compromising classified information increases with any
type of external proceeding. We disagree because our report
explicitly discusses different types of risks to national security
that could arise, including those related to external proceedings.
In addition, our report lays out a tiered process where, depending on
the level of risk involved, the agencies themselves would determine
what precautionary steps would be most appropriate. Further, our
report clearly acknowledges that there may still be some national
security cases in which summary removal (without appeal) will be
appropriate.
Second, CIA and DOD stated that our report underestimated the
administrative costs of allowing appeals to the MSPB. While we never
attempted to estimate these costs, we agree that there would be
additional administrative burdens if Congress were to extend MSPB
appeals to all intelligence employees. However, Congress provided
these agencies with exemptions to standard federal policies based on
national security considerations, not to achieve administrative
efficiencies.
EEOC had no comments on our findings regarding intelligence agencies.
However, it disagreed with our comments, based on previous GAO
testimony, that aspects of the federal redress system are
inefficient, time-consuming, and expensive. We would note that
Congress and the executive branch are currently considering ways to
make this process more efficient and effective and that our testimony
did not recommend any abridgement of employees' rights. MSPB
declined to provide comments on our report.
(See figure in printed edition.)Appendix I
COMMENTS FROM THE CENTRAL
INTELLIGENCE AGENCY
============================================================ Chapter 4
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
The following are GAO's comments on the Central Intelligence Agency's
(CIA) letter dated January 18, 1996.
GAO COMMENTS
---------------------------------------------------------- Chapter 4:8
1. Our report accurately quotes the CIA regulation that clearly
indicates that the Director of Central Intelligence (DCI) is
accountable to no one for removals. We cannot verify CIA statements
that it provides such information to the President and Congress
because CIA did not provide us with access to case files or other
corroborating evidence.
2. The CIA removal regulations do not mention any procedures whereby
employees who believe they have been removed unfairly may raise the
issue to the Inspector General or the President's Intelligence
Oversight Board. We cannot verify CIA statements that CIA employees
have these redress avenues because CIA would not provide us with
access to case files or other corroborating evidence.
3. We deleted any reference to CIA summary removals as "routine" in
accordance with CIA's comments. However, we followed up with CIA
officials on these comments, and they confirmed that in the past, the
DCI's summary removal authority has been used to implement reductions
in force not related to national security issues.
4. As CIA states, the sensitivity of classified information differs
depending on the mission and functions of the particular agency
involved. Even more important, the level of sensitivity varies with
the duties of every individual, so a case-by-case analysis is most
appropriate. For example, while some intelligence agency employees
conduct clandestine operations at foreign locations, other employees
man gaurdposts at headquarters. The access to sensitive information
would vary greatly between these two types of positions.
Furthermore, and contrary to CIA's comment that our report concludes
"categorically" that the Merit Systems Protection Board (MSPB) can
hear adverse action cases, our report lays out a tiered process
where, depending on the level of risk involved in individual cases,
the agencies themselves would determine what cautionary procedures
would be most appropriate.
5. We modified the text to include CIA comments that CIA has more
clandestine operations and a higher percentage of employees under
cover than the National Security Agency (NSA) and the Defense
Intelligence Agency (DIA). We acknowledge that some CIA activities,
particularly clandestine collection operations, are extremely
sensitive and dangerous. However, based upon highly classified GAO
work involving NSA and DIA and comments from these agencies on this
report, we believe these agencies have some specialized programs that
are equivalent to CIA in terms of sensitivity and danger.
6. We continue to believe that the CIA's summary removal authority
should be linked to national security. This is not based on a goal
that the CIA, NSA, and DIA should be treated equivalently. The
summary removal authorities were conferred on CIA, as well as NSA and
DIA, because of the sensitive national security work they perform.
This is what differentiates them from most other federal agencies who
do not possess this unusual authority and are governed by the laws
that generally apply to federal employees, including those conferring
appeal rights to independent tribunals such as MSPB. Accordingly, we
see no basis for CIA employees being treated differently than other
federal employees when national security is not at issue.
7. Our report fully recognizes the national security cost associated
with MSPB reviews. Based on agency concerns, we included a section
that specifically describes the types of national security risks
involved. As mentioned in comment 4, our report lays out a tiered
process where, depending on the level of risk involved, the agencies
themselves would determine what cautionary procedures would be most
appropriate. In addition, we clearly acknowledge that there may be
some national security cases in which summary removal will be
appropriate, with no outside review. Nevertheless, the later cases
are probably rare. We are at a disadvantage commenting on the
sensitivity of CIA cases because we were not afforded access to their
case files; but our review of NSA and DIA cases showed that 98
percent of adverse action case files contained no classified
material.
8. We modified our report to add additional examples of
administrative costs that CIA, NSA, and DIA would incur to clear
judges and attorneys, provide classified storage for judges and
attorneys, and produce unclassified case files.
9. The legislative history of the 1992 amendments to the National
Security Act of 1947, as amended, contains no substantive discussion
of the DCI's termination authority. Thus, there is no indication
that Congress debated this issue at all.
10. Government audit standards require that our audit reports
include any factors that significantly limited the scope or conduct
of our review. Without access to CIA's complete personnel
regulations and agency case files, we were severely hampered in our
efforts to compare CIA not only with other federal agencies, but with
its sister intelligence agencies as well.
11. We disagree with CIA assertions that we lack jurisdiction to
examine the topics covered in this report. Under the General
Accounting Act of 1980, amending the Budget and Accounting Act of
1921, and the Legislative Reorganization Act of 1970, GAO has general
audit authority over CIA activities. The General Accounting Office
Act preserved the audit exemption set forth in the CIA Act of 1949
covering unvouchered CIA expenditures. It also added another
provision that allows the President to exempt from audit unvouchered
financial transactions about sensitive law enforcement investigations
if an audit would expose the identifying details of an active
investigation or endanger investigative or domestic intelligence
sources involved in the investigation. It should be emphasized,
however, that this new exemption only further limited our authority
to audit CIA unvouchered expenditures. It did nothing to restrict
our audit authority over vouchered expenditures. We think our audit
of intelligence agency personnel practices falls within our general
audit authority, and has nothing to do with auditing unvouchered
expenditures. Regarding the Intelligence Oversight Act of 1980,
while it does provide the intelligence committees with primary
oversight over intelligence activities, it neither precludes other
committees from examining intelligence issues related to their
jurisdiction, nor, in any way, restricts our general audit authority.
This is consistent with the Senate and House Rules describing the
authority and scope of operations of the intelligence committees.
Both state that other congressional committees can review
intelligence activities that directly affect matters within their
jurisdiction. We believe the House Civil Service Subcommittee, the
requester for this report, clearly has authority to review
intelligence agency personnel questions relating to the Equal
Employment Opportunity (EEO) and adverse actions.
(See figure in printed edition.)Appendix II
COMMENTS FROM THE DEPARTMENT OF
DEFENSE
============================================================ Chapter 4
See comment 1.
(See figure in printed edition.)
See comment 2.
See comment 3.
See comment 4.
See comment 5.
(See figure in printed edition.)
The following are GAO's comments on the Department of Defense's (DOD)
letter dated February 2, 1996.
GAO COMMENTS
---------------------------------------------------------- Chapter 4:9
1. We modified the text to expand upon the concerns expressed by
DOD. Our report has a section that specifically describes the types
of national security risks involved. We lay out a tiered process
where, depending on the level of risk involved, the agencies
themselves would determine what cautionary procedures would be most
appropriate. In addition, we acknowledge that there may be some
national security cases where summary removal would be appropriate,
with no outside review. Nevertheless, we expect that the latter
cases would be rare. Our review of NSA and DIA cases, found that 98
percent of adverse action case files contained no classified
material.
2. We modified the text in light of DOD's comments. However, the
key point, which DOD officials agreed with, is that nonveterans
present no greater national security risk than veterans. Since NSA
and DIA have a proven record of dealing with veteran appeals to MSPB,
they could also do so for nonveterans. Along these lines, we believe
CIA could also deal with appeals to MSPB.
3. DOD raises a legitimate point that the NSA and DIA directors'
summary removal authority cannot be used for lesser sanctions, such
as suspensions of less than 14 days, or reductions in pay or grade,
or furlough for 30 days or less. We believe the agencies could still
suspend employees under 5 U.S.C. 7532(a) without outside review, but
this would not cover reductions in pay or grade, or furloughs, which
are appealable to MSPB. If Congress were to extend MSPB appeal
rights to intelligence agency personnel, this is one of the
implementing details it would have to resolve, perhaps by expanding
the directors' summary removal authorities to lesser sanctions, but
only in rare national security cases.
4. While DOD is correct that the limitations of the directors'
summary removal authority could lead to more severe sanctions, it
could also lead to less severe sanctions. Actual cases from the
period we reviewed (1993-94), indicate that it is not as large of a
problem as DOD implies. For example, there were no reductions in
grade or pay, or furloughs at NSA or DIA, and no suspensions at DIA.
Regarding NSA suspensions, there were five suspensions greater than
14 days (i.e., potentially appealable to MSPB). In three of these
five suspensions, NSA could have reduced the sanction slightly (by
1-6 days) to make the case exempt from MSPB review. The two other
suspensions (one was for 60 days and one was indefinite) were for
serious offenses where removal would be fully justified under NSA
regulations.
5. We modified the text to expand on DOD concerns about MSPB related
administrative costs, which we agree are a legitimate concern.
However, our key point remains that Congress provided the
intelligence agencies with exemptions from standard personnel
practices for reasons of national security. There is no evidence in
the legislative histories of these exemptions to indicate that
Congress provided the exemptions to minimize the administrative
burden at these agencies. In addition, as noted in the report, these
agencies already deal with such costs in MSPB cases (for veteran
employees) and EEO cases before EEOC and the courts (for all
employees).
(See figure in printed edition.)Appendix III
COMMENTS FROM THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
============================================================ Chapter 4
(See figure in printed edition.)
(See figure in printed edition.)
The following are GAO's comments on the Equal Employment Opportunity
Commission's (EEOC) letter dated December 18, 1995.
GAO COMMENTS
--------------------------------------------------------- Chapter 4:10
1. We modified the text to more accurately reflect EEOC's position
and included the examples they cite.
2. We modified our report to add additional evidence. Our work
related to EEOC and MSPB has surfaced a number of shortcomings with
the federal redress process. For more details that support our
position, see the full text of our testimony, Federal Employee
Redress: An Opportunity for Reform (GAO/T-GGD-96-42, Nov. 29,
1995). The purpose of our testimony was not to recommend any
abridgements of employees' rights that would result in fewer
protections than are afforded workers in the private sector. Rather,
at a time when civil service is undergoing renewed scrutiny by the
executive branch and Congress, we suggested that the redress system,
like other facets of civil service such as performance management and
the retirement system, be studied to look for ways to make it more
efficient and effective.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix IV
NATIONAL SECURITY AND
INTERNATIONAL AFFAIRS DIVISION,
WASHINGTON, D.C.
-------------------------------------------------------- Appendix IV:1
Gary K. Weeter
Stephen L. Caldwell
Ronald D. Leporati
Mae F. Jones
GENERAL GOVERNMENT DIVISION,
WASHINGTON, D.C.
-------------------------------------------------------- Appendix IV:2
Anthony P. Lofaro
OFFICE OF THE GENERAL COUNSEL,
WASHINGTON, D.C.
-------------------------------------------------------- Appendix IV:3
Richard L. Seldin
RELATED GAO PRODUCTS
=========================================================== Appendix 1
Veterans' Preference: Data on Employment of Veterans (GAO/GGD-96-13,
Feb. 1, 1996).
Military Equal Opportunity: Problems With Services' Complaint
Systems Are Being Addressed by DOD (GAO/NSIAD-96-9, Jan. 26, 1996).
Federal Employee Redress: An Opportunity for Reform
(GAO/T-GGD-96-42, Nov. 29, 1995).
Military Equal Opportunity: Certain Trends in Racial and Gender Data
May Warrant Further Analysis (GAO/NSIAD-96-17, Nov. 17, 1995).
Equal Employment Opportunity: Women and Minority Representation at
Interior, Agriculture, Navy, and State (GAO/GGD-95-211, Sept. 29,
1995).
Merit Systems Protection Board: Mission Performance, Employee
Protections, and Working Environment (GAO/GGD-95-213, Aug. 15,
1995).
Equal Opportunity: DOD Studies on Discrimination in the Military
(GAO/NSIAD-95-103, Apr. 7, 1995).
Background Investigations: Impediments to Consolidating
Investigations and Adjudicative Functions (GAO/NSIAD-95-101, Mar.
24, 1995).
Security Clearances: Consideration of Sexual Orientation in the
Clearance Process (GAO/NSIAD-95-21, Mar. 24, 1995).
Federal Affirmative Employment: Better Guidance Needed for Small
Agencies (GAO/GGD-94-71, July 7, 1994).
Federal Personnel: The EEO Implications of Reductions-in-Force
(GAO/T-GGD-94-87, Feb. 1, 1994).
EEOC: An Overview (GAO/T-HRD-93-30, July 27, 1993).
DOD Special Access Programs: Administrative Due Process Not Provided
When Access Is Denied or Revoked (GAO/NSIAD-93-162, May 5, 1993).
Affirmative Employment: Assessing Progress of EEO Groups in Key
Federal Jobs Can Be Improved (GAO/GGD-93-65, Mar. 8, 1993).
Security Clearances: Due Process for Denials and Revocations by
Defense, Energy, and State (GAO/NSIAD-92-99, May 6, 1992).
Federal Workforce: Agencies' Estimated Costs for Counseling and
Processing Discrimination Complaints (GAO/GGD-92-64FS, Mar. 26,
1992).
Federal Workforce: Continuing Need for Federal Affirmative
Employment (GAO/GGD-92-27BR, Nov. 27, 1991). Testimony on same
topic (GAO/T-GGD-92-2, Oct. 23, 1991).
Due Process: Procedures for Unfavorable Suitability and Security
Clearance Actions (GAO/NSIAD-90-97, Apr. 23, 1990).
*** End of document. ***