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Fred Fielding's Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Fielding, Fred: Files
Folder Title: PATCO (1 of 2)
Box: 34F
To see more digitized collections visit:
https://www.reaganlibrary.gov/archives/digitized-textual-material
To see all Ronald Reagan Presidential Library inventories visit:
https://www.reaganlibrary.gov/archives/white-house-inventories.
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/archives/research
support/citation-guide
National Archives Catalogue: https://catalog.archives.gov/
WITHDRAWAL SHEET
Ronald Reagan Library
DOCUMENT
NO. AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
1. memo
Richard Hauser to Fred Fielding, re PATCO (with notations)
2/19/82
P-5,P-6 B6
(partial closure)
2. memo
same as item #1, without notations (partial)
2/19/82
P-5,P-6- B6
3. statement
Prosecution of Striking Air Traffic Controllers (partial of page 1)
n.d.
P-5 open
4. paper
page 2 of item #3
n.d.
PS open
5. memo
Craig Fuller to Fred Fielding, re prosecuting striking controllers
9/11/81
P-5 B6
(partial)
11/15/00
COLLECTION:
FIELDING, FRED: Files
cas
FILE FOLDER:
Box 34
PATCO OA 8154 [1 of 2]
12/7/94
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA].
F-2 Release could disclose internal personnel rules end practices of
P-2 Relating to appointment to Federel office [(e)(2) of the PRA).
an agency (lb)(2) of the FOIA].
P-3 Releese would violate a Federal statute ((a)(3) of the PRA].
F-7 Release would discloee information compiled for law enforcement
P-4 Release would disclose trade secrets or confidential commercial
purposes ((b)(7) of the FOIA).
or financial information ((a)(4) of the PRA).
F-8 Release would disclose information concerning the regulation of
P-5 Release would disclose confidential advice between the President
financial institutions ((b)(8) of the FOIA].
and his advisors, or between such advisors (la)(5) of the PRA.
F-9 Release would disclose geological or geophysical information
P-6 Release would constitute a clearly unwarranted invasion of
concerning wells [(b)(9) of the FOIA].
personal privacy [(a)(6) of the PRA].
C. Closed in accordance with restrictions contained in donor's deed
of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
DOCUMENT
NO. AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
1. memo
Richard Hauser to Fred Fielding, re PATCO (with notations)
2/19/82
P-5,P-6
(partial closure)
2. memo
same as item #1, without notations (partial)
2/19/82
P-5,P-6
3. statement
Prosecution of Striking Air Traffic Controllers (partial of page 1)
n.d.
P-5
4. paper
page 2 of item #3
n.d.
P-5
5. memo
Craig Fuller to Fred Fielding, re prosecuting striking controllers
9/11/81
P-5
(partial)
COLLECTION:
FIELDING, FRED: Files
cas
FILE FOLDER:
PATCO OA 8154 [1 of 2]
12/7/94
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA).
F-2 Release could disclose internal personnel rules and practices of
P-2 Relating to appointment to Federal office [(a)(2) of the PRA).
an agency ((b)(2) of the FOIA].
P-3 Release would violate a Federal statute ((a)(3) of the PRA).
F-7 Release would disclose information compiled for law enforcement
P-4 Release would disclose trade secrets or confidential commercial
purposes [(b)(7) of the FOIA].
or financial information [(a)(4) of the PRA).
F-8 Release would disclose information concerning the regulation of
P-5 Release would disclose confidential advice between the President
financial institutions [(b)(8) of the FOIA].
and his advisors, or between such advisors [(a)(5) of the PRA.
F-9 Release would disclose geological or geophysical information
P-6 Release would constitute a clearly unwarranted invasion of
concerning wells [(b)(9) of the FOIA].
personal privacy [(a)(6) of the PRA].
C.
Closed in accordance with restrictions contained in donor's deed
of gift.
WHITE HOUSE OFFICE OF RECORDS MANAGEMENT: Subject File
1175
FILE TRANSFER
BY THE REAGAN LIBRARY STAFF
Previously filed: FRED FIELDING EILES ON 8154
"PATCO"
New file location: PEOOL 03940901 WHORM SUBJeet
FILE
Date of transfer: 10/18/94 US
ORIGINAL placeD w PEOOl 03940900
COPY RetaineD w FIELDING PATLO PIE.
AUO JAVIA-
THE DEPUTY ATTORNEY GENERAL
PATCO
WASHINGTON, D.C. 20530
/
STATE
03 SEP 1981
September 3, 1981
Fred:
I believe Jim Baker raised a
question about our policy. You
might pass the attached information
on to him if you believe it is
desirable to do SO.
Ed Schmults
THE WHITE HOUSE
WASHINGTON
I thought you might be
interested in the attached.
For
ROBERT F. BONITATI
Special Assistant to
the President
6-16-82
(No. 116) A- 1
CURRENT
BNA's Daily Reporter System
DEVELOPMENTS
DAILY LABOR REPORT
SECTION
SETTLEMENT OF POSTAL STRIKE SUIT
GIVES STRIKERS CHANCE FOR REHIRE
Workers fired for striking two major U. S. Postal Service facilities in New Jersey in
1978 may be considered for rehire in postal jobs, under an agreement worked out between
USPS and an American Postal Workers Union local, and approved by a federal court on June 2.
The only restriction on the opportunity of the 86 fired workers for rehire is that none
may be hired for jobs in New Jersey, although this restriction may be waived in particular
cases by the Postmaster General. In addition, the degree to which an applicant played a lead-
ership role in the strike is to be considered in any suitability determination, the agreement
provides.
The agreement, signed by Judge Frederick B. Lacey, of the U.S. District Court for the
District of New Jersey, settles all suits for reinstatement and back pay that had been filed by
the Metro Area Postal Union, APWU's local in much of greater New York, on behalf of the
strikers. APWU agreed to drop the back pay claims in trade for the possibility of
reemployment.
The Postal Service's agreement appears to represent a liberalization of re-employment
terms that President Reagan offered in December to approximately 11,000 former air traffic
controllers who were fired the previous August for conducting an illegal strike against the
Federal Aviation Administration.
The President's offer permits ex-controllers the right to apply and be considered for
jobs in agencies except FAA. This promise has been attacked by controller spokesman as a
sham in view of layoffs in government and because many controllers lack skills in any other
area but air traffic control.
USPS, on the other hand, is offering to let strikers return to the same agency from which
they were fired, a distinction which has not been lost on lawyers for the fired controllers. If
the FAA were to adopt the USPS position, these lawyers say, it might open the way for the re-
hire of several thousand strikers. Controller spokesmen continue to insist that the reduced
workforce now operating the nation's air traffic system is severely overtaxed and rehire of
many of the strikers is necessary if the system is to return to normal anytime soon.
The failed strikes, at the Jersey City bulk mail center and another bulk mail center near
Oakland, Calif., represented the most literal application of APWU's long-standing "no con-
tract-no work" principle. The strikes began shortly after midnight on July 21, 1978, when
word was reached that negotiators for APWU and other unions had not yet reached agreement
on successors to collective bargaining agreements that technically had expired at 12 o'clock.
1
The bargaining continued through the night and produced a tentative agreement shortly before
dawn.
1
The strikers hoped that their action would galvanize postal workers across the country
into walking out, but their effort did not extend beyond the gates of their own facilities. Postal
security personnel and managers were there taking names, and some 150 employees in the two
states were fired for striking.
- 3
Later on, the APWU union rank-and-file did reject the contract that had been negotiated
- 3
in July, but no walkouts took place. Instead, the contract's final terms were imposed by an
- 3
arbitrator.
- 1
Announcement of the settlement of the lawsuit prompted Rep. William D. Ford (D-Mich),
chairman of the House Post Office and Civil Service Committee, to praise Postmaster General
William F. Bolger and APWU General President Moe Biller for their roles in the settlements.
"I know it was not easy for [Bolger] to alter the Postal Service's long-standing position that
Copyright © 1982 by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037
0148-2693/82/$00.50
A-2 (No. 116)
CURRENT DEVELOPMENTS
(DLR) 6-16-82
those who strike against the Federal Government are permanently barred from reemploy-
ment," Ford said. "He and I discussed our views on this legal principle many times, both
publicly and privately. I applaud his final decision. " Ford credited Biller for being "especial-
ly helpful in giving continuous responsible leadership to bringing about this action."
The POCS chairman also pointed out, as others have done, that the Reagan Administra-
tion has been given an opening to follow the USPS lead and permit fired controllers to be con-
sidered for rehire into ATC work. However, Secretary of Transportation Drew Lewis told an
aviation trade group last week that the Administration's position on reinstatement remains
firmly against. According to Lewis, reinstatement is not a labor relations problem but a legal
one, because federal law bars the employment of any person who participates in a strike
against the Federal Government.
The USPS settlement also takes care of an embarrassing issue that had been haunting the
postal unions for years, particularly at convention time. Some members had been heard to
complain that, after years of mouthing fiery "no contract-no work" rhetoric, the leadership
gave insufficient support to those workers who actually tried to give effect to those words.
At the 1978 convention of the National Association of Letter Carriers, for example, sev-
eral strikers, fired from the California facility when their strike fizzled just weeks before,
attempted without success to be allowed to speak from the podium. Finally, a resolution de-
manding amnesty for the strikers was quickly gaveled through by the leadership in the conven-
tion's closing moments.
A USPS spokesman said recently, however, that the settlement signed by Judge Lacey
does not represent "amnesty" for something that happened so long ago but is merely an oppor-
tunity for prospective employment.
APWU also announced that it would try to reach an agreement for the approximately 50
California strikers that had been achieved for those in New Jersey.
(United States Postal Service V. DiCorcia; USDC NJ, Nos. 78-1693, 78-2670, 79-1956,
June 2, 1982.)
- 0
SENATE SUBCOMMITTEE TO PROBE
HOTEL AND RESTAURANT EMPLOYEES
Hearings to probe the influence of organized crime on the Hotel and Restaurant Employ-
ees (HERE) International Union will focus on local unions in Atlantic City, N.J., (Local 54) and
Honolulu, Hawaii, (Local 5) when the first round of hearings begins June 22 and 23 before the
Senate Permanent Subcommittee on Investigations.
The subcommittee, in announcing the upcoming hearings, said it will examine the "influ-
ence by organized crime and other corrupting elements" on the union. Subcommittee Chair-
man William V. Roth (R-Del) said the subcommittee has been investigating the activities of the
union and several of its larger locals since mid-1981.
Roth said the hearings will attempt to answer the following questions:
"First, is there a substantial organized crime or corrupt influence in the Hotel Workers
Union and its larger affiliated locals? And if such influence exists, how has it manifested
itself? Second, are the union and its larger affiliated locals being operated in conformity
with federal labor statutes and the rules of prudence and fiduciary responsibility dictated
by those statutes?"
In its investigations, the.subcommittee has focused on the operations of the international
union and of Local 54, Atlantic City; Local 5, Honolulu; Local 226, Las Vegas; and Locals 19
and 28, San Jose/Oakland. The subcommittee says the June hearings will focus entirely on the
locals in Atlantic City and Honolulu. Hearings on the other locals will be held over the next few
months.
Copyright © 1982 by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, D.C. 20037
0148-2693/82/$00.50
THE WHITE HOUSE
WASHINGTON
February 19, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
RICHARD A. HAUSER
RMA
SUBJECT:
PATCO
Paul McGrath called this morning to say that the Court of
Appeals has ordered the Federal Labor Relations Authority
(through a non-FLRA Administrative Law Judge) to inquire
into ex parte contacts involving FLRA Commissioner Apple-
whaite.
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
New Probe Ordered in PATCO Decertification Vote
By Laura A. Kiernan
leader, whom he described as a
According to McGrath's state-
Applewhaite would be unable to get
Washington Post Stuff Writer
'business and social acquaintance of
ment, information about Apple-
a joh in the labor field after leaving
The U.S. Court of Appeals here
long standing," and has denied any
whaite was brought to investigators
the FLRA, the statement said.
yesterday ordered an independent
attempt to influence his vote,
by another FLRA board member,
Applewhaite said his concern
investigation of allegations that a
McGrath's statement said.
Henry B. Frazier III, who said Ap-
about how his vote would affect his
"well-known labor leader" may have
An investigation by the Justice
plewhaite had told him in advance
future employment was "obvious,"
tried to influence a government of
Department's criminal division con-
about the dinner meeting planned
and he also denied Frazier's state-
ficial's decision to decertify the Pro
cluded last November that no fur-
with the labor leader.
ment to the FBI that he had asked
fessional Air Traffic Controllers Or
ther action was warranted, McGrath
Others who knew Applewhaite
the administration about his chances
ganization.
said.
also told the FBI that he had men-
for reappointment to the authority,
A. sworn statement by Assistant
The three-judge appeals panel
tioned to them his pre-vote discus-
McGrath's statement said.
Attorney General J. Paul McGrath,
said yesterday, however, that "this
sion with the labor leader, the state-
According to McGrath, Frazier
ment said.
released by the court, said the Jus-
shadow on the integrity of the ad-
also claimed that Applewhaite dis-
ministrative process cannot be sum-
Frazier told investigators that the
tice Department had investigated
cussed the case at a Republican
marily dismissed."
day after the meeting, Applewhaite,
fund-raiser in New York and was
charges that the labor leader, who
The panel ordered the FLRA to
who had been committed to revok-
assured that if he alienated orga-
was not identified, may have tried to
have an independent administrative
ing PATCO's union status, was "vac.
nized labor, he could find a job in
persuade Leon B. Applewhaite, a
law Judge conduct hearings on the
illating" as a result of his conversa-
private law practice in New York.
member of the Federal Labor Rela
allegations and submit a report to
tions with the labor leader, according
Applewhaite said the comment
tions Authority, not to vote for
the court by March 19.
to McGrath's statement.
was an "ofthand remark," McGrath
revocation of the union's authority
In the meantime, the panel said, it
Frazier told the FBI that Apple-
said in his statement, and has in-
to bargain for the air controllers.
will withhold any decision on the
whaite "tentatively decided" to vote
sisted that his decision in the
Applewhaite, who voted to decer-
merits of PATCO's request that the
against decertification, allegedly be-
PATCO case "turned on his personal
tify. PATCO, has admitted having
FLRA decision to revoke PATCO's
cause the labor leader "made it
conviction" based on the merits of
dinnet with the unidentified labor
union status be overturned.
plain" that if he voted for revocation,
the case.
THE WHITE HOUSE
WASHINGTON
February 19, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
RICHARD A. HAUSER
RAJA
SUBJECT:
PATCO
Paul McGrath called this morning to say that the Court of
Appeals has ordered the Federal Labor Relations Authority
(through a non-FLRA Administrative Law Judge) to inquire
into ex parte contacts involving FLRA Commissioner Apple-
whaite.
REDACTED
REDACTED
REDACTED
REDACTED
THE WASHINGTON POST
Thursday, November 26, 1981
All
Air Traffic Controllers' Test Probed
By John Burgess
mittee's interest and we welcome
according to academy spokesman
Washington Post Staff Writer
their participation," Feldman said.
Mark Weaver. That is a pass rate of
The chairman of a House commit-
Ford said he had no proof of the
33 percent of the original class.
tee called yesterday for an investi-
allegation. But a committee staff
The rate for the second class was
gation of the Federal Aviation Ad-
member said the charges came from
better, Weaver said. Of 143 people
ministration's academy for air traffic
people in the academy whom the
originally enrolled, he said, approx-
controllers in Oklahoma City, saying
committee believes to be reliable.
imately 90 to 95 passed the exam-
there was evidence that FAA offi-
Over the next two years, the acad-
ination that now is under investiga-
cials had tampered with test scores
emy hopes to train 8,000 new con-
tion. Seventeen had dropped out
to increase the number of successful
trollers to replace 12,000 who went
earlier. The precise number of suc-
candidates.
on strike Aug. 3 and were fired. In
cessful students was not available
In a letter to FAA chief J. Lynn
the meantime, skeleton crews staff-
because test scores were being exam-
Helms, Rep. William D. Ford (D-
ing the control centers are keeping
ined by the FAA investigators,
Mich.), chairman of the House Post
air traffic at about 75 percent of pre-
Weaver said.
Office and Civil Service Committee,
strike levels, according to the FAA.
Ford asked for an investigation by
said his staff had received informa-
Despite the urgency of the situ-
the inspector general at the Depart-
tion that the number of students
ation, the FAA has said, the new
ment of Transportation and in-
who passed a Nov. 19 examination
trainees would be held to the same
formed the FAA that two members
had risen from 79 to 95 due to ma-
standards as the old ones. Initial
of his staff would go to the academy
nipulation of the scores.
training runs 17 or 20 weeks, with
to investigate, as well.
FAA spokesman Dennis Feldman
full qualification for some jobs tak-
"We cannot afford the slightest
said the agency was aware of the
ing up to four years of on-the-job
suspicion that the lives and safety of
allegations and on Tuesday a special
training.
U.S. airline passengers are being en-
team of academy instructors who
Of 72 people in the academy's
dangered for the sake of hurriedly
were not involved in the test had
first post-strike class, 24 passed a
filling depleted ranks of air traffic
begun to review it.
final exam in late October, with 12
controllers," Ford said in a state-
"We understand the [House] com-
having dropped out before the test,
ment.
PRESERVATION COPY
THE WHITE HOUSE
WASHINGTON
January 7, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
J. MICHAEL LUTTIG
SUBJECT:
Postal Service Hiring of PATCO Employees
On December 9, 1981, in a memorandum to the Director of the
Office of Personnel Management, the President directed OPM
to "perform suitability determinations with respect to all
such applicants [former PATCO members terminated because of
their strike against the federal government] according to
established standards and procedures under 5 CFR, Part 731."
Title 39, § 410 describes the application of other federal
laws to the Postal Service. Section 410 (b), in relevant
part, provides that Title 5, Chapter 73, generally shall
apply to the Postal Service, but that no regulation issued
pursuant to the Chapter shall apply, unless expressly made
applicable. Part 731 was formulated in part under the
authority of Title 5, Section 7301 of the United States
Code. The regulations in Title 5, Part 731, however, are
not expressly made applicable to the Postal Service. Thus,
by the terms of 39 U.S.C. § 410 (b), the Postal Service is
not bound by Part 731, It is therefore technically immune
from the President's December 9 directive.
The above interpretation is consistent with that adopted by
the Office of Personnel Management, although this position
has not been articulated publicly. The Office did not
forward to the Postal Service, for instance, its January 6,
1981 Federal Personnel Manual Bulletin 731-6 to all agencies
considering the appointment or reinstatement of persons
previously employed by the federal government as air traffic
controllers.
It is my understanding that statutes applicable to such
agencies and departments as the FBI, CIA, and Secret Service
also, by their terms, exempt those organizations from
certain regulations.
page 574
Page 575
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES
§ 7301
position to which appointed" are substituted for
CHAPTER REFERRED TO IN OTHER SECTIONS
"same compensations. as are prescribed for men".
,irs and
This chapter is referred to in section 3374 of this
This subsection was part of title IV of the Revised
title: title 39 section 410: title 42 sections 2991c. 3522.
th. Large 434, 62
Statutes. The Act of July 26. 1947. ch. 343, § 201(d). as
added Aug. 10, 1949. ch. 412. 4. 63 Stat. 579 (former 5
SUBCHAPTER I-REGULATION OF
U.S.C. 171-1), which provides "Except to the extent in-
CONDUCT
Ibr rules is
consistent with the provisions of this Act [National
). which is
Security Act of 1947], the provisions of title IV of the
Revised Statutes as now or hereafter amended shall be
§
Titten as a
t personnel
applicable to the Department of Defense" is omitted
for
The words
from this title, but is not repealed.
we service"
Subsection (c) is added on authority of former sec-
tions 1072 and 1072a. which are codified in section
a with the
5115.
(Pub. L 89-554, Sept. 6, 1966, 80 Stat. 524.)
use as out-
Standard changes are made to conform with the
definitions applicable and the style of this title as out-
HISTORICAL AND REVISION NOTES
lined in the preface to the report.
Derivation
U.S. Code
Revised Statutes and
Statutes at Large
from provi-
1967 ACT
5 U.S.C. 631
R.S. $ 1753 (last 16 words).
IF title.
This section deletes subsection (a) of 5 U.S.C. 7154
(last 16
to reflect the repeal of the source statute of that sub-
words).
TIONS
section by Public Law 89-261, 79 Stat. 987.
The words "employees in the executive branch" are
1302 of this
AMENDMENTS
substituted for "persons who may receive appoint-
ments in the civil service".
1972-Subsec. (b). Pub. L 92-392 included reference
Standard changes are made to conform with the
to subchapter IV of chapter 53 of this title.
definitions applicable and the style of this title as out-
lined in the preface to the report.
EFFECTIVE DATE OF 1972 AMENDMENT
Amendment by Pub. L 92-392 effective on first day
DELEGATION OF FUNCTIONS
D. Sept. 11,
of first applicable pay period beginning on or after the
For the delegation to the Civil Service Commission
90th day after Aug. 19, 1972, see section 15(a) of Pub.
ter 51, sub-
of authority of the President to establish regulations
L 92-392, set out as a note under section 5341 of this
for the conduct of persons in the civil service under
nd sections
title.
former section 631 of this title, see section 601 of Ex.
ination be-
Ord. No. 11222. May 8, 1965, 30 F.R. 6469, set out as a
vital
status
SECTION REFERRED TO IN OTHER SECTIONS
note under section 201 of Title 18, Crimes and Crimi-
uvidual or a
This section is referred to in section 2105 of this
nal Procedure.
title; title 10 sections 4540, 7212, 9540.
For the delegation to the Civil Service Commission
may
pre-
of various functions vested in the President, see Ex.
administra-
CHAPTER 73-SUITABILITY, SECURITY, AND
Ord. No. 11228, June 14, 1965, 30 F.R. 7739, set out as
CONDUCT
a note under section 301 of Title 3, The President.
523;
Pub.
SUBCHAPTER I-REGULATION OF CONDUCT
EMERGENCY PREPAREDNESS FUNCTIONS
Stat.
208;
Sec.
For assignment of certain emergency preparedness
Stat.
573.)
7301. Presidential regulations.
functions to the Civil Service Commission, see Parts 1,
SUBCHAPTER 1I-EMPLOYMENT LIMITATIONS
28, and 30 of Ex. Ord. No. 11490, Oct. 28, 1969, 34 F.R.
7311. Loyalty and striking.
17567, set out as a note under section 2292 of Title 50,
7312. Employment and clearance; individuals removed
Appendix, War and National Defense.
for national security.
tatules
and
7313. Riots and civil disorders.
DESIGNATION OF DIRECTOR OF THE BUREAU OF THE
at
Large
BUDGET AS MEMBER OF FEDERAL LABOR RELATIONS
SUBCHAPTER III-POLITICAL ACTIVITIES
COUNCIL
ch.
782,
7321. Political contributions and services.
972
7322. Political use of authority or influence; prohibi-
Presidential Order of December 8, 1969, provided
that:
tion.
department"
7323. Political contributions; prohibition.
Pursuant to the provisions of section 4 of Executive
definition of
is
7324. Influencing elections; taking part in political
Order 11491 [set out as-anote under this section), I
coextensive
campaigns; prohibitions; exceptions.
hereby designate the Director of the Bureau of the
"ment"
in
sec-
in-
7325. Penalties.
Budget (now the Office of Management and Budget]
tment"
are
as a member of the Federal Labor Relations Council.
À
law.
7326. Nonpartisan political activity permitted.
source
Security
Act
7327. Political activity permitted; employees residing
This order of designation shall be published in the
Department
in certain municipalities.
Federal Register.
of
RICHARD NIXON.
and
the
De-
SUBCHAPTER IV-FOREIGN GIFTS AND
Restive depart-
DECORATIONS
CODE OF ETHICS FOR GOVERNMENT SERVICE
mendments of
[7341. Repealed.]
franc
as
an
Ex-
7342. Receipt and disposition of foreign gifts and
House Concurrent Resolution No. 175, July 11, 1958,
attent of the
decorations.
72 Stat. B12 provided that:
the Depart-
"Resolved by the House of Representatives (the
SUBCHAPTER V-MISCONDUCT
Cusents, not as
Senate concurring), That it is the sense of the Con-
source law for
7351. Gifts to superiors.
gress that the following Code of Ethics should be ad-
1945. remained
7352. Excessive and habitual use of intoxicants.
hered to by all Government employees, including offi-
alleary depart-
ceholders:
AMENDMENTS
National Secu-
20% which is
1968-Pub. L 90-351, title V, § 1001(b), June 19, 1968,
"CODE OF ETHICS FOR GOVERNMENT SERVICE
XII
The
words
82 Stat. 235, substituted "Employment Limitations"
"Any person in Government service should:
in
for "Loyalty, Security, and Striking" as the sub-
"1. Put loyalty to the highest moral principles and
The
words
chapter II heading and added item 7313.
to country above loyalty to persons, party, or Govern-
for "any
1967-Pub. L 90-83, § 1(46), Sept. 11, 1967, 81 Stat.
ment department.
by
br".
The
209, inserted "Gifts and" preceding "Decorations" in
"2. Uphold the Constitution, laws, and legal regula-
mondions" are
the heading for subchapter IV, deleted item 7341, and
tions of the United States and of all governments
25 of the
added item 7342.
therein and never be a party to their evasion.
THE WHITE HOUSE
WASHINGTON
December 9, 1981
NDUM FOR THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT
ECT: FEDERAL EMPLOYMENT OF DISCHARGED AIR TRAFFIC CONTROLLERS
The Office of Personnel Management has established the position
that the former air traffic controllers who were discharged for
participating in a strike against the government initiated on
August 3, 1981 shall be debarred from federal employment for a
period of three years. Upon deliberation I have concluded that
such individuals, despite their strike participation, should be
permitted to apply for federal employment outside the scope of their
former employing agency.
Therefore, pursuant to my authority to regulate federal employment,
I have determined that the Office of Personnel Management should
permit federal agencies to receive applications for employment from
these individuals and process them according to established civil
service procedures.
to
731
After reviewing reports from the Secretary of Transportation and
the Administrator of the Federal Aviation Administration, I have
further determined that it would be detrimental to the efficiency
of operations at the Federal Aviation Administration and to the
safe. and effective performance of our national air traffic control
system to permit the discharged air traffic controllers to return
to employment with that agency. Therefore, these former federal
employees should not be deemed suitable for employment with the
Federal Aviation Administration.
I direct you to process their applications for reemployment with
the federal government accordingly.
RONALD REAGAN
inel
Chapter I-Office of Personnel Management
§ 731.202
in-
V. Consistency with Reorganization Plan
F
No. 1 of 1978. A. The Office shall develop
10577. 3 CFR. 1954-1958 Comp.. p. 218: E.O.
xter-
regulations and implement this program in
11222. 3 CFR. 1964-1965 Comp., p. 306.
consultation with the Commission and with
unless otherwise noted.
the
other affected agencies in such manner that
A
ac-
their recruitment programs may be incorpo-
nily
rated as a consistent and effective element
Subpart A-[Reserved]
al
È
of the agencies' national and regional equal
most
employment opportunity plans. Each
Subpart B-Suitability
ovide
agency is required to implement such plans
arget-
under the direction and guidance of the
Disqualifications
rd on
Commission in accordance with Section 717
se all
of title VII of the Civil Rights Act of 1964.
§ 731.201 Authority.
erson-
as amended. and Executive Order 12067.
Subject to Subpart C of this part
onsist-
B. Procedures shall be established by
. Em-
OPM may deny an applicant exmina-
OPM and the Commission to assure appro-
38290
priate consultation in development of the
tion. deny an eligible appointment,
the
regulations.
and instruct an agency to remove an
encies:
C. Pursuant to Reorganization Plan No. 1
appointee when OPM determines this
a.
and to Executive Order 12067 issued there-
action will promote the efficiency of
levels
under. the Commission will establish proce-
the service.
presen-
dures to provide appropriate consultatic 1
exter-
and review of the program on a continuing
[40 FR 28047. July 3. 1975)
in
basis. to maximize its effectiveness and elim-
inate any duplication. conflict or inconsis-
# 731.202 OPM determination.
include
tency in requirements for equal opportunity
(a) General. In determin.ing whether
those
programs in the Federal agencies.
D. In preparing its annual report to the
its action will promote the efficiency
per-
bilin-
Congress pursuant to the Act. OPM should
of the service. OPM shall make its de-
be
do so in consultation with the Commission.
termination on the basis of:
can
English.
[44 FR 22031, Apr. 13. 1979: 44 FR 76747.
(1) Whether the conduct of the indi-
for
fill-
Dec. 28. 1979)
vidual may reasonably be expected to
regula-
interfere with or prevent effective per-
national
formance in the position applied for or
the
PART 731-SUITABILITY
employed in; or
from
(2) Whether the conduct of the indi-
jobs.
the
list
NOMENCLATURE CHANGE A document pub-
vidual may reasonably be expected to
expand-
lished at 44 FR 47523. Aug. 14. 1979. made
interfere with or prevent effective per-
to
general nomenclature changes to the Office
formance by the employing agency of
resented
of Personnel Management regulations in
its duties and responsibilities.
are
this chapter.
(b) Specific factors. Among the rea-
from
sons which may be used in making a
selee-
Subpart A-[Reserved]
determination under paragraph (a) of
proce-
7
Subpart B-Suitability Disqualifications
this section, any of the following rea-
as
de-
sons may be considered a basis for dis-
of
Sec.
qualification:
orkforce
731.201 Authority.
(1) Delinquency or misconduct in
these
731.202 OPM determination.
prior employment;
(2) Criminal, dishonest, infamous or
a
In
Subpart C-Suitability Roting Actions
notoriously disgraceful conduct;
X
de-
731.301 Jurisdiction.
(3) Intentional false statement or de-
arrently
731.302 Actions against employees by the
cate-
ception or fraud in examination or ap-
OPM.
entation
pointment;
731.303 Debarment.
determi-
(4) Refusal to furnish testimony as
by
required by $ 5.3 of this chapter:
Subpart D-Appeal to the Merit Systems
Protection Board
(5) Habitual use of intoxicating bev-
Prder-
erages to excess;
Asshms
731.401 Right to appeal.
(6) Abuse of narcotics, drugs, or
job
é
other controlled substances;
È
Subpart E-Reemploment Eligibility
in
all
(7) Reasonable doubt as to the 'oyal-
applicant
731.501 Reemployment eligibility of cer-
ty of the person involved to the Gov-
tain former Federal employees.
ernment of the United States; or
425
§ 731.301
Title 5-Administrative Personnel
(8) Any statutory disqualification
to the previous appointment has ex-
which makes the individual unfit for
pired; and
the service.
(vii) Transfer, provided the one-year.
(c) Additional considerations. In
subject-to-investigation period applied
making its determination under para-
to the previous appointment has ex-
graph (a) of this section, OPM shall
pired.
consider the following additional fac-
(2) Appointments are subject to in-
tors to the extent that these factors
vestigation to continue OPM's jurisdic-
are deemed pertinent to the individual
tion to investigate the qualifications
case:
and suitability of an applicant after
(1) The kind of position for which
appointment and to authorize OPM to
the person is applying or in which the
require removal when it finds the ap-
person is employed, including its sensi-
pointee is disqualified for Federal em-
tivity;
ployment. The subject-to-investigation
(2) The nature and seriousness of
condition may not be construed as re-
the conduct;
quiring an employee to serve a new
(3) The circumstances surrounding
probationary or trial period or as ex-
the conduct:
tending the probationary or trial
(4) The recency of the conduct:
period of an employee.
(5) The age of the applicant or ap-
(b) Duration of condition. The sub-
pointee at the time of the conduct;
ject-to-investigation condition expires
(6) Contributing social or environ-
automatically at the end of 1 year
mental conditions;
after the effective date of appoint-
(7) The absence or presence of reha-
ment, except in a case involving inten-
bilitation or efforts toward rehabilita-
tional false statement or deception or
tion.
fraud in examination or appointment.
[40 FR 28047, July 3. 1975)
[33 FR 12483. Sept. 4. 1968]
§ 731.302 Actions against employees by
Subpart C-Suitability Rating Actions
OPM.
P.O. adject
§ 731.301 Jurisdiction.
(a) For a period of 1 year after the
effective date of an appointment sub-
(a) Appointments subject to investi-
ject to investigation under $ 731.301,
gation. (1) In order to establish an ap-
OPM may instruct an agency to
pòintee's qualifications and suitability
remove an appointee when it finds
for employment in the competitive
that he is not qualified or is unsuit-
service, every appointment to a posi-
able for any of the reasons cited in
tion in the competitive service is sub-
§ 731.202. Part 754 of this chapter does
ject to investigation by OPM, except:
not apply to this action.
(i) Promotion;
(b) Thereafter, OPM may require
(ii) Demotion:
the removal of an employee on the
(iii) Reassignment;
basis of intentional false statement or
(iv) Conversion from career-condi-
deception or fraud in examination or
tional to career tenure:
appointment. Part 754 of this chapter
(v) Appointment, or conversion to an
applies to this action.
appointment, made by an agency of an
(c) An action to remove an appointee
employee of that agency who has been
or employee taken pursuant to an in-
serving continuously with that agency
struction by OPM is not subject to
for at least one year in one or more
Part 752 of this chapter. Part 752 of
positions in the competitive service
this chapter applies when removal or
under an appointment subject to in-
other disciplinary action covered by
vestigation;
that part is initiated by an agency.
(vi) Reinstatement effected within
(d) When the Office instructs an
one year from the date of separation
agency to remove an appointee under
from Federal civilian employment or
this part it shall notify the agency and
from honorable separation from mili-
the appointee of its decision in writ-
tary service, provided the one-year,
ing, giving reasons for the decision,
subject-to-investigation period applied
and informing the agency and the ap-
426
nnel
Chapter I-Office of Personnel Management
§ 731.501
;
ex-
pointee of the right to appeal to the
ee. Part 752 of this chapter does not
Merit Systems Protection Board under
apply to the suspension.
year,
the provisions of the Board's regula-
tions. The Office shall comply with
(5 U.S.C. 7701. et seq.)
plied
S
ex-
the provisions of $ 1201.21 of this title.
(39 FR 32541. Sept. 9. 1974. as amended at
40 FR 28048. July 3. 1975: 44 FR 48954. Aug.
(5 U.S.C. 7701. et seq.)
21. 1979]
to
in-
[39 FR 32540. Sept. 9. 1974. as amended at
risdic-
40 FR 28048. July 3. 1975: 44 FR 48954. Aug.
Subport E-Reemployment Eligibility
21. 1979)
after
to
$ 731.303 Debarment.
$ 731.501 Reemployment eligibility of cer-
ap-
tain former Federal employees.
When a person is disqualified for
em-
any reason named in § 731.202, OPM,
(a) Request for suitability determi-
in its discretion, may deny that person
nation. When an employee has been
as
re-
examination for and appointment to a
removed by an agency on charges
new
competitive position for a period of
(other than security or loyalty) or has
as
ex-
not more than 3 years from the date
resigned on learning the agency
trial
of determination of disqualification.
planned to prefer charges. or while
On expiration of the period of deba.:-
charges were pending. the former em-
sub-
ment, the person who has been de-
ployee may request OPM to determine
expires
barred may not be appointed to any
his eligibility for further employment
year
position in the competitive service
in the competitive service, insofar as
opoint-
until his fitness for appointment has
his suitability and fitness are con-
inten-
been redetermined by OPM.
cerned. OPM shall consider the re-
or
[33 FR 12483. Sept. 4. 1968, as amended at
quest only if the former employee:
40 FR 28048, July 3, 1975)
(1) Has completed any required pro-
bationary period;
by
Subpart D-Appeal to the Merit Sys-
(2) Has basic eligibility for reinstate-
tems Protection Board
ment: and
(3) Includes a sworn statement with
the
§ 731.401 Right to appeal.
the request which sets forth fully and
sub-
31.301,
(a) Any applicant or eligible who is
in detail the facts surrounding his re-
disqualified from examination or ap-
moval or resignation.
to
finds
pointment by the Office for any
(b) Action by OPM. (1) After appro-
unsult-
reason named in § 731.202 may appeal
priate consideration, including such in-
in
to the Merit Systems Protection Board
vestigation as OPM considers neces-
does
under the Board's regulations.
sary. OPM shall inform the former
(b) An appointee who is disqualified
employee whether it has found him
require
by the Office for any reason named in
suitable for further employment in
the
§ 731.202 or his or her employing
the competitive service.
or
agency may appeal to the Board under
(2) If the former employee is found
or
the Board's regulations.
unsuitable and has had an opportuni-
chapter
(1) An appointee who appeals a re-
ty to comment on the reasons for this
moval directed by OPM shall notify
finding, or has furnished his com-
pointee
the agency of his appeal prior to the
ments to OPM, it may cancel his rein-
on
in-
effective date of the action.
statement eligibility if that eligibility
to
(2) When OPM has instructed the
resulted from his last Federal employ-
T33
of
agency to remove an appointee and
ment and was obtained through fraud.
or
either the agency or the appointee ap-
In addition, OPM may prescribe a
by
peais, the agency shall suspend the ap-
period of debarment from the compet-
pointee effective the day following the
itive service not to exceed three years.
an
date on which the removal was to have
under
been effected pending adjudication of
[39 FR 32541. Sept. 9. 1974]
and
the appeal unless the agency desires to
is
retain the appointee in an active duty
status for that period, in which event
the
$
the agency shall so notify the appoint-
427
39 § 409
GENERAL PROVISIONS
Ch. 4
Note 8
of Madonna. Protestants and Other
proper payment of other forms of com-
Americans United for Separation of
pensation based on basic pay, that is,
Church and State V. O'Brien, D.C.D.C.
premium wages, in an amount sufficient
1967. 272 F.Supp. 712.
to reflect equalization payment met re-
quirements of rule pertaining to class ac-
9. Parties
tion. Burns V. U. S. Postal Service, D.C.
Post Office Employees' Welfare Com-
N.Y.1974, 380 F.Supp. 623.
mittee through which postal employees
In action by Service supervisory em-
bad installed and operated vending ma.
ployees seeking declaration that defend-
chines in city post office constituted inte-
ants had violated this title by refusing to
gral part of Service and thus was instru-
treat compensation as basic pay and by
mentality of United States for purposes
refusing to make contributions to retire-
of suit by such Committee against Serv-
ment fund, class treatment for those su-
Ice and postmaster for alleged tortious
pervisors who had received equalization
conversion of assets. Employees Welfare
payment and who were receiving and
Committee V. Daws, C.A.Fla.1979, 599 F.2d
would receive cost of living increase all
1375.
without proper contribution by Service to
Discharged postal employee could
civil service retirement fund was inappro-
maintain suit against Service seeking re-
priate, where, in fact, it was probable
that vast majority of supervisors were
Instatement and back pay without join-
ing the United States as a party. White
actually pleased that Service gave them
V. Bloomberg, C.A.Md.1974, 501 F.2d 1379.
additional compensation without deduct-
ing anything for retirement purposes.
Post Office Employee Welfare Commit-
Id.
tee, which negotiated contract with plain-
tiff corporation for installation of vend-
11. Compremise or settlement
ing machines in city post office. consti-
Fact that Department of Justice is
tuted integral part of Post Office Depart-
compelled by law to furnish legal repre-
ment {now United States Postal Service]
sentation to the Service does not bind or
and was thus instrumentality of United
prevent settlement authorization specifi-
States for purpose of determining propri-
cally granted to the Service by section
ety of suit by plaintiff corporation for
2008 of this title Leonard V. U. S. Poat-
declaratory judgment that contract was
al Service, D.C.Mass.1973, 360 F.Supp. 449,
valid and enforceable for five years in
affirmed 489 F.2d 814.
accordance with its terms. Automatic
Retailers of America, Inc. V. Ruppert, D.
12. Damages
C.Iowa 1967, 269 F.Supp. 588.
Sovereign immunity barred recovery of
punitive damages against the Service and
10. Class actions
therefore, in fairness, also preciuded im-
In action seeking declaration that de-
position of punitive damages against
fendants had violated this title by refus-
postal employee's union in case in which
ing to treat compensation as basic pay,
both Service and union had breached du-
Service supervisory employees who re-
ties to employee. Bowen V. U. S. Postal
celved equalization payment without
Service, D.C.Va.1979, 470 F.Supp. 1127.
§ 410.
Application of other laws
(a) Except as provided by subsection (b) of this section, and ex-
cept as otherwise provided in this title or-insofar as such laws re-
main in force as rules or regulations of the Postal Service, no Fed-
eral law dealing with public or Federal contracts, property, works,
officers, employees, budgets, or funds, including the provisions of
chapters 5 and 7 of title 5, shall apply to the exercise of the powers
of the Postal Service.
(b)
Service:
(1) section 552 (public information), section 552a (records
about individuals), section 552b (open meetings), 3102 1 (em-
ployment of reading assistants for blind employees and inter-
preting assistants for deaf employees), section 3110 (restric-
46
Ch. 4
Ch. 4
GENERAL AUTHORITY
39 § 410
farms of that com- is.
tions on employment of relatives), section 3333 and
- pay. sufficient met re-
(antidiscrimination; right to petition Congress)
and section 5520
,
Y
class
ac-
service, to D.C.
(withholding city income or employment taxes), and section
\
5532 (dual pay)
em-
made
licable
W
If refusing to
-
\
pay and retire- by
(2) all provisions of title 18 dealing with the Postal Service,
10
the mails, and officers or employees of the Government of the
for those su-
United States;
anpalization
metring
(3) section 107 of title 20 (known as the Randolph-Sheppard
increase all
1
Act, relating to vending machines operated by the blind)
of Service to
was inappro-
(4) the following provisions of title 40:
was probable
- evisors were
(A) sections 258a-258e (relating to condemnation pro-
sure them
ceedings);
- wast purposes. deduct-
(B) sections 270a-270e (known as the Miller Act, relat-
ing to performance bonds) ;
(C) sections 276a-276a-7 (known as the Davis-Bacon
Justice is
Act, relating to prevailing wages);
and
18581 repre-
not bind or
(D) section 276c (relating to wage payments of certain
1 specifi-
contractors)
section
;
C.S. Post-
(E) chapter 5 (the Contract Work Hours Standards
rsupp. 449,
Act); and
(F) chapter 15 (the Government Losses in Shipment
recorery of
Act);
Service and
(5) the following provisions of title 41:
peciuded im-
against
(A) sections 35-45 (known as the Walsh-Healey Act, re-
-
in which
lating to wages and hours) ; and
broached du-
[ 8. Postal
(B) chapter 6 (the Service Contract Act of 1965)
1127.
(6) sections 2000d, 2000d-1-2000d-4 of title 42 (title VI, the
Civil Rights Act of 1964) ; and
(7) section 19 of the Occupational Safety and Health Act of
and ex-
1970 (29 U.S.C. 668).
laws re-
no Fed-
(8) The provisions of the Act of August 12, 1968 (42 U.S.C.
J. works,
4151-4156).
risions of
(c) Subsection (b) (1) of this section shall not require the disclo-
powers
sure of-
(1) the name or address, past or present, of any postal pa-
Service:
tron:
":ecords
(2) information of a commercial nature, including trade se-
181 (em-
crets, whether or not obtained from a person outside the Postal
of inter-
Service, which under good business practice would not be pub-
Crestric-
licly disclosed;
47
39 § 410
GENERAL PROVISIONS
Ch. 4
(3) information prepared for use in connection with the ne-
gotiation of collective-bargaining agreements under chapter 12
of this title or minutes of, or notes kept during, negotiating ses-
sions conducted under such chapter;
(4) information prepared for use in connection with proceed-
ings under chapter 36 of this title;
(5) the reports and memoranda of consultants or independent
contractors except to the extent that they would be required to
be disclosed if prepared within the Postal Service; and
(6). investigatory files, whether or not considered closed,
compiled for law enforcement purposes except to the extent
available by law to a party other than the Postal Service.
(d) (1) A lease agreement by the Postal Service for rent of net
interior space in excess of 6,500 square feet in any building or facil-
ity, or part of a building or facility, to be occupied for purposes of
the Postal Service shall include a provision that all laborers and
mechanics employed in the construction, modification, alteration, re-
pair, painting, decoration, or other improvement of the building or
space covered by the agreement, or improvement at the site of such
building or facility, shall be paid wages at not less than those pre-
vailing for similar work in the locality as determined by the Secre-
tary of Labor under section 276a of title 40.
(2) The authority and functions of the Secretary of Labor with
respect to labor standards enforcement under Reorganization Plan
Numbered 14 of 1950 (title 5, appendix), and regulations for con-
tractors and subcontractors under section 276c of title 40, shall ap-
ply to the work under paragraph (1) of this subsection.
(3) Paragraph (2) of this subsection shall not be construed to
give the Secretary of Labor authority to direct the cancellation of
the lease agreement referred to in paragraph (1) of this subsection.
Pub.L. 91-375, Aug. 12, 1970, 84 Stat, 725; Pub.L. 91-656, § 8(a),
Jan. 8, 1971, 84 Stat. 1955; Pub.L. 93-340, § 2, July 10, 1974, 88
Stat. 294; Pub.L. 94-82, Title I, § 101, Aug. 9, 1975, 89 Stat. 419;
Pub.L. 94-409, § 5(a), Sept. 13, 1976, 90 Stat. 1247; Pub.L. 94-541,
Title II, § 203, Oct. 18, 1976, 90 Stat. 2508; Pub.L. 95-454, Title III,
§ 302(c), Title VII, § 703(c)(4), Oct. 13, 1978, 92 Stat. 1146, 1217.
1 So in original. Probably should be "section 3102".
Historical Note
References in Text. Section 107 of title plete classification of this Act to the
20, known as the Randolph-Sheppard Act,
Code, see Tables volume.
referred to in subsec. (b) (3), is section 1
Sections 270a-270e, known as the Miller
of Act June 20, 1936, c. 638, 49 Stat. 1559,
Act, referred to in subsec. (b)(4)(B),
as amended. Said Act of June 20, 1936,
probably means Act Aug. 24, 1935, c 642,
popularly known as the Randolph-Shep-
pard Act and also as the Randolph-Shep-
49 Stat. 793, as amended, popularly
pard Vending Stand Act, is classified
known as the Miller Act, which is classi-
generally to chapter 6A (section 107 et
fied generally to sections 270a to 270d of
seq.) of Title 20, Education. For com-
Title 40, Public Buildings, Property, and
48
Ch. 4
Ch. 4
GENERAL AUTHORITY
39 § 410
,
the
ne-
Works. For complete classification of
ter V (section 2000d et seq.) of chapter 21
this Act to the Code, see Short Title note
of Title 42, The Public Health and Wel-
set out under section 270a of Title 40 and
fare. For complete classification of this
Tables volume.
Act to the Code, see Short Title note set
out under section 2000a of Title 42 and
Sections 276a-276a-7, known as the Dav-
Tables volume.
proceed-
is-Bacon Act, referred to in subsec.
(b)(4)(C), is Act Mar. 3, 1931, C. 411, 46
Section 19 of the Occupational Safety
Stat. 1494, as amended, popularly known
and Health Act of 1970 (29 U.S.C. 668).
as the Davis-Bacon Act, which is classi-
referred to in subsec. (b) (7), is section 19
fied generally to sections 276a to 276a-5
of Pub.L. 91-596, Dec. 29, 1970, 84 Stat.
<ired
of Title 40, Public Buildings, Property,
1609, which enacted section 668 of Title
and Works. For complete classification
29, Labor, and amended section 7902 of
of this Act to the Code, see Short Title
Title 5, Government Organization and
closed,
note set out under section 276a of Title 40
Employees.
extent
and Tables volume.
The provisions of the Act of August 12,
Chapter 5 (the Contract Work Hours
1968 (42 U.S.C. 4151-4156), referred to in
Standards Act), referred to in subsec.
of
net
subsec. (b) probably means Pub.L.
3
(b) probably means Title I of
90-480, Aug. 12, 1968, 82 Stat. 718, as
facil-
Pub.L. 87-581, Aug. 13, 1962, 76 Stat. 357,
'd
amended, popularly known as the Archi-
as amended, which is classified generally
POSES of
tectural Barriers Act of 1968, which is
to subchapter II (section 327 et seq.) of
classified generally to chapter 51 (section
Lerers
and
chapter 5 of Title 40, Public Buildings,
4151 et seq.) of Title 42, The Public
sion, re-
Property, and Works, and was redesigna-
Health and Welfare. For complete clas-
ted the Contract Work Hours and Safety
sification of this Act to the Code, see Ta-
Eding or
Standards Act by section 2 of Pub.L. 91-
bles volume.
of such
54, Aug. 9, 1969, 83 Stat. 98. For com-
pose pre-
plete classification of this Act to the
Reorganization Plan Numbered 14 of
Code, see Short Title note set out under
1950 (title 5, appendix), referred to in
Secre-
section 327 of Title 40 and Tables volume.
subsec. (d) (2), is Reorg. Plan No. 14 of
1950, eff. May 24, 1950, 15 F.R. 3176, 64
Chapter 15 (the Government Losses in
Stat. 1267, which is set out in the Appen-
with
Shipment Act), referred to in subsec.
dix to Title 5, Government Organization
(b) probably means Act July 8,
Plan
and Employees.
1937, c. 444, 50 Stat. 479, as amended,
for con-
known as the Government Losses in
1978 Amendment. Subsec (b)(1). Pub.
all ap-
Shipment Act, which is classified princi-
L. 95-454 added provisions relating to
pally to chapter 15 (section 721 et seq.)
reading and interpreting assistants, and
of Title 40, Public Buildings, Property,
substituted provisions respecting applica-
scued to
and Works. For complete classification
bility of chapter 72 of Title 5, for provi-
of this Act to the Code, see Short Title
sions respecting applicability of chapter
Acion of
note set out under section 721 of Title 40
71 of Title 5.
section.
and Tables volume.
1976 Amendments. Subsec. (b)(1).
I 8(a),
The Walsh-Healey Act, referred to in
Pub.L. 91-409 added references to sections
subsec. (b)(5)(A), is Act June 30, 1936, c.
552a and 552b of Title 5.
1974, 88
881, 49 Stat. 2036, as amended, which is
at 419;
classified generally to sections 35 to 45
Subsec. (b) Pub.L. 94-541 added
94-541,
of Title 41, Public Contracts. For com-
par. (8).
plete classification of this Act to the Code,
Title III,
1975 Amendment. Subsec. (b) (b)(7).
see Short Title note set out under section
Pub.L. 94-82 added par. (7).
1217.
35 of Title 41 and Tables volume. See,
also, section 262 of Title 29, Labor.
1974 Amendment. Subsec. (b)(1).
Pub.L. 93-340 inserted "section 5520
The Service Contract Act of 1965, re-
(withholding city income or employment
ferred to in subsec. (b) (5) (B), is Pub.L.
taxes)," preceding "and section 5532
89-286, Oct. 22, 1965, 79 Stat. 1034, as
(dual pay)".
to the
amended, which is classified generally to
chapter 6 (section 351 et seq.) of Title 41,
1971 Amendment. Subsec. (b) (b)(1).
be Miller
Public Contracts. For complete classifi-
Pub.L. 91-656 inserted "section 3110 (re-
cation of this Act to the Code, see Short
strictions on employment of relatives),"
)(4)(B).
Title note set out under section 351 of
preceding "section 3333" and substituted
w 642, J
Title 41 and Tables volume.
"no regulation" for "not regulation".
yoularly
b classi-
Title VI, the Civil Rights Act of 1964,
Effective Date of 1978 Amendment.
2.0d of
referred to in subsec. (b)(6), is Pub.L.
Amendment by Pub.L. 95-454 effective 90
88-352, Title VI, July 2, 1964, 78 Stat. 252,
days after Oct. 13, 1978, see section 907 of
and
which is classified generally to subchap-
Pub.L. 95-454, set out as an Effective
49
39 § 410
GENERAL PROVISIONS
Ch. 4
Date of 1978 Amendment note under sec- United States Code, as enacted by that
tion 1101 of Title 5. Government Or-
Act [this section]."
ganization and Employees.
Effective Date. Subseca. (a), (b) (2) to
Effective Date of 1976 Amendment.
(6), and (c)(1) to (3), (5). (6) of this sec-
Amendment by Pub.L. 94-409 effective 180
tion effective Apr. 13, 1971, pursuant to
days after Sept. 13, 1976, see section 6 of
Resolution No. 71-14 of the Board of Gov-
Pub.L. 91-409, set out as an Effective
ernors, subseca. (b)(1), relating to section
section 552b of Title 5, Government Or-
552 of Title 5, and (c)(4) effective Jan.
ganization and Employees.
20, 1971, pursuant to Resolution No. 71-10
of the Board of Governors, and subsec.
Effective Date of 1974 Amendment.
(d) effective July 1, 1971, pursuant to
Amendment by Pub.L. 93-340 effective the
Resolution No. 71-9 of the Board of Gov.
90th day following July 10, 1974, see sec-
ernors. See section 15(a) of Pub.L. 91-
Date note under section 552b of Title 5,
375, set out as an Effective Date note
Government Organization and Employees.
tion 3 of Pub.L. 93-340, set out as an
preceding section 101 of this title.
Effective Date note under section 5520
Legislative History. For legislative
of Title 5, Government Organization and
history and purpose of Pub.L. 91-656, see
Employees.
1970 U.S.Code Cong. and Adm.News. p.
5915. See, also, Pub.L. 93-340, 1974 U.S.
Effective Date of 1971 Amendment.
Code Cong. and Adm.News. p. 3450;
Section 8(b) of Pub.L. 91-656 provided
Pub.L. 91-82, 1975 U.S.Code Cong. and
that: "The provisions of this section
shall become effective on the effective
Adm.News, p. 845; Pub.L. 94-409, 1976
U.S.Code Cong. and Adm.News. p. 2183;
date prescribed under section 15(a) of the
Pub.L. 94-541, 1976 U.S.Code Cong. and
Postal Reorganization Act [set out as an
Adm.News, p. 5538; Pub.L. 95-454, 1978
Effective Date note preceding section 101
U.S.Code Cong. and Adm.News, p. 2723.
of this title] for section 410 of title 39,
Cross References
Applicability of this section to Postal Rate Commission, see section 3604 of this title.
Code of Federal Regulations
Inspection Service, authority, etc., see 39 CFR 233.1 et seq.
Procurement of property, etc., see 39 CFR Chap. 1, subchap. H.
Regulatory coverage, see 39 CFR 211.1 et seq.
Notes of Decisions
Civil Rights Act 1
2. Disclosure
Disclosure 2
In administrative proceedings within
National Environmental Policy Act 3
the Postal Service against mail order
Notice and hearing 4
seller allegediy engaged in false advertis-
Sales and use taxes 5
ing, judicial officer did not err in refus-
Standing to sue 8
ing to order production of the poat office
Vehicle and traffic laws 6
files relating to the complaint against
Zoning ordinances 7
seller where seller refused to make any
specific requests for specific documents
and where the file contained, among oth-
er things, Inspection Service investigative
1. Civil Rights Act
reports which were exempted from dis-
Even if Civil Rights Act, section 1981 et
closure by subsec. (c) of this section.
seq. of Title 42, was applicable to Serv-
Institute for Weight Control, Inc. V.
ice, which had proposed to remove plain-
Klassen, D.C.N.J.1972, 348 F.Supp. 1304,
tiff from his position as a letter carrier,
affirmed 474 F.2d 1338.
plaintiff was not entitled to challenge
proposed removal action and to obtain
3. National Environmental Policy Act
permanent injunction against removal,
The National Environmental Policy
where he had not yet exhausted his ad-
Act, section 4321 et seq. of Title 42, and
ministrative remedies by obtaining an ap-
the Intergovernmental Cooperation Act,
peal decision on proposed action from Civ-
section 4201 et seq. of Title 42, do not
il Service Commission [now Merit System
apply to the Service and the Service was
Protection Board}. Johnson V. Postmas-
not required to prepare an environmental
ter General, D.C.Md.1971, 330 F.Supp.
impact statement before beginning con-
1058.
struction of a post office. City of Thou-
50
a
1/12/82
Lews Cox,
Last marth -
seemed like lifetime ban (that
3pm had Geen deleted) had
adhered to tab nonhiu over the
years
would
mean he mere discretin reserved.
7970
but only to determine whether to
discharge "striking" membr.- -
(Never referred to as strike)
Summer of 78 -
sent increages to employer
before too expiration of contract
about flat mohibition against
rehire.
same - same 100
lifetume bar
discharged -
9ty
deturnt against pitare strikes
and
service up Portmaske quarral
to decide pontin
-ITh nonhan does underent Postal
pontin
- PATCO may ounly for parkl job
but not postal
-
But if water applications why not
Postal particularly of at dif Wistallation,
quatu pokuhal. for stukes.
Postal has full calection Garganing
devision hopefully a/u
THE WHITE HOUSE
WASHINGTON
December 9, 1981
MEMORANDUM FOR THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT
SUBJECT: FEDERAL EMPLOYMENT OF DISCHARGED AIR TRAFFIC CONTROLLERS
The Office of Personnel Management has established the position
that the former air traffic controllers who were discharged for
participating in a strike against the government initiated on
August 3, 1981 shall be debarred from federal employment for a
period of three years. Upon deliberation I have concluded that
such individuals, despite their strike participation, should be
permitted to apply for federal employment outside the scope of their
former employing agency.
Therefore, pursuant to my authority to regulate federal employment,
I have determined that the Office of Personnel Management should
permit federal agencies to receive applications for employment from
these individuals and process them according to established civil
service procedures. Your office should perform suitability
determinations with respect to all such applicants according to
established standards and procedures under 5 CFR, Part 731.
After reviewing reports from the Secretary of Transportation and
the Administrator of the Federal Aviation Administration, I have
further determined that it would be detrimental to the efficiency
of operations at the Federal Aviation Administration and to the
safe and effective performance of our national air traffic control
system to permit the discharged air traffic controllers to return
to employment with that agency. Therefore, these former federal
employees should not be deemed suitable for employment with the
Federal Aviation Administration.
I direct you to process their applications for reemployment with
the federal government accordingly.
RONALD REAGAN
MEMORANDUM
TO:
DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT
FROM:
THE PRESIDENT
RE:
FEDERAL EMPLOYMENT OF DISCHARGED AIR TRAFFIC CONTROLLERS
The Office of Personnel Management has established the
position that the former air traffic controllers who were dis-
charged for participating in a strike against the government
initiated on August 3, 1981, shall be debarred from federal em-
ployment for a period of three years. Upon deliberation I have
concluded that such individuals, despite their strike participa-
tion, should be permitted to apply for federal employment outside
the scope of their former employing agency.
Therefore, pursuant to my authority to regulate federal
employment, I have determined that the Office of Personnel Manage-
ment should permit federal agencies to receive applications for em-
ployment from these individuals and process them according to es-
tablished civil service procedures. Your office should perform
suitability determinations with respect to all such applicants
according to established standards and procedures under 5 CFR,
Part 731.
After consultation with the Secretary of Transportation
and the Administrator of the Federal Aviation Administration, I
have further determined that it would be contrary to the efficiency
of operations at the Federal Aviation Administration and to the
safe and effective maintenance of our national air traffic control
system to permit the discharged air traffic controllers to return
to employment with that agency. Therefore, these former federal
employees shall not be deemed suitable for employment with the
Federal Aviation Administration.
I direct you to process their applications for reemploy-
ment with the Federal government accordingly.
PATCO
Suggested statement for
The President
For the past four-and-a-half months we have kept the airways safe and the
nation's air traffic moving despite a strike by members of the Professional Air Traffic
Controllers Organization.
We faced a choice last August: concede to the demands of a union engaged in an
illegal strike -- a strike that threatened to shut down our air traffic system; or dismiss
the controllers who violated their oath and walked off their jobs, and keep the airways
operating with the resources available to us.
We made the only choice we could. Ours is a land of laws and constitutional
government. Those of us who serve the public have an obligation to the public, and
when we take an oath we take it seriously.
I don't regret the actions we took last August, in dismissing the controllers who
broke the law. While we regret the loss of an experienced work force, we have an even
greater commitment to the people of America to uphold the principles on which this
country is built -- principles of law, due process and respect for the public trust.
Those principles have been honored, and our commitment to them remains firm.
But there is another principle we honor in America -- the tradition that individuals
deserve a second chance. In that spirit, I am today extending to the air traffic
controllers discharged because of their actions in striking against the Federal
government, an opportunity to re-apply for Federal employment if they so desire.
2
I am making this offer, with two conditions:
First, all applicants will be considered for employment under the same suitability
standards used by the Office of Personnel Management in evaluating all candidates for
jobs with the Federal government. This means that each application will be considered
fairly and on a case-by-case basis.
Second, because returning the striking controllers to their former positions would
adversely affect operational efficiency, damage morale and perhaps impair safety, the
former controllers will be eligible for employment consideration in any Federal agency
except the Federal Aviation Administration.
I realize that these conditions prevent the ex-controllers from returning to their
former jobs. But in considering an applicant for a position of public responsibility, we
must take into account not only the ability to perform that job, but the effect that his
or her employment may have on others within the agency. This is particularly true
where the effectiveness of the nation's air traffic control system and the safety of the
airways are at stake.
I deeply regret the circumstances that have led to the present situation, but our
first obligation today is to the people who stayed with us -- those who honored their
oath not to strike, and remained faithful to their public responsibilities.
Many of the controllers who stayed on the job -- these highly-skilled, conscien-
tious men and women who worked long hours for no reason other than their loyalty and
sense of commitment -- do not want the striking controllers back.
3
As one controller, a union member who chose not to strike, said recently: "In the
early summer of 1981 the harassment started involving live air traffic. Those of us who
opposed the strike plans got garbage in our lockers, nails under our tires, insults and
abuse." He went on to say that: "You can't work with people like that in an occupation
where absolute trust in the person next to you is essential."
I believe that air traffic controller is right. There is considerable evidence that
morale is higher and safety is better today than before the strike began. We are
rebuilding the system around the core of seasoned, highly-motivated professionals who
remained on the job or returned to work in response to my offer last August. I am
proud of these men and women, and the nation owes them a debt of gratitude.
At the same time, however, I do not believe that those who forfeited their jobs as
controllers should be foreclosed from other Federal employment. I am sure that many
of those who were mislead or badly advised regret their actions and would welcome an
opportunity to return to Federal service. So I am offering them that opportunity -- that
second chance. Many of the controllers served the government and the nation well. I
invite them to consider a new career in government service.
I believe that because American is a land of laws and principles it is also a land of
unprecedented opportunity -- a country where commitment counts, but where those who
err can always try again.
It's in that spirit that I invite all those who want to work for the government to
re-apply, under the Executive Order I am issuing today.
- ### -
DEC 31 1981
United States of America
Office of
Office of the General Counsel
Personnel Management
Washington, D.C. 20415
In Reply Refer To:
December 24, 1981
Your Reference:
Mr. Fred Fielding
Counsel to the President
THE WHITE HOUSE
Washington, D.C. 20500
Dear Mr. Fielding:
Transmitted herewith, for your information, is a copy of
the FPM Bulletin issued today relating to the Federal reemploy-
ment of air traffic controllers whose employment was terminated
on account of striking against the Government. This guidance
has also been sent, through normal channels, to your agency's
administrative and personnel units.
Please call me if I may be of any assistance on this matter.
Sincerely yours,
Joseph A Hours
Joseph A. Morris
General Counsel
Enclosure
Office of Personnel Management
FPM Bulletin 731- 6
Federal Personnel Manual System
Advance Edition 12/30/81
FPM Bulletin
Bulletin No. 731-6
Washington, D. C. 20415
January 6, 1982
SUBJECT: Reemployment of Air Traffic Controllers
Terminated for Striking Against the Government
Heads of Departments and Independent Establishments:
1. The President of the United States has transmitted to me the following
message dated December 9, 1981:
The Office of Personnel Management has established the position
that the former air traffic controllers who were discharged for
participating in a strike against the Government initiated on
August 3, 1981 shall be debarred from federal employment for a period
of 3 years. Upon deliberation I have concluded that such individuals,
despite their strike participation, should be permitted to apply for
federal employment outside the scope of their former employing agency.
Therefore, pursuant to my authority to regulate federal employ-
ment, I have determined that the Office of Personnel Management should
permit federal agencies to receive applications for employment from
these individuals and process them according to established civil
service procedures. Your office should perform suitability determina.
tions with respect to all such applicants according to established
standards and procedures under 5 CFR, Part 731.
After reviewing reports from the Secretary of Transportation and
the Administrator of the Federal Aviation Administration, I have
further determined that it would be detrimental to the efficiency of
operations at the Federal Aviation Administration and to the safe and
effective performance of our national air traffic control system to
permit the discharged air traffic controllers to return to employment
with that agency. Therefore, these former federal employees should
not be deemed suitable for employment with the Federal Aviation
Administration.
I direct you to process their applications for reemployment with
the Federal Government accordingly.
/3/ Ronald Reagan
2. Pursuant to my authority as Director of the Office of Personnel Management,
and by delegation of authority from the President of the United States, as set
forth above, therefore, I hereby direct as follows:
(a) Agencies considering persons for appointment or rein-.
statement who were previously employed by the Government of the
United States as air traffic controllers, no matter what
Investigations Evaluation Division, Office of Personnel Investigations
Inquiries: 632-6206
Code:
731, Suitability
Distribution: FPM
Bulletin Expires: January 20, 1985
FPM Btn. 731-6 (2)
status they may claim or what history of separation from the
Federal Service they may give, shall submit the following
information to the Office of Personnel Management:
(1) The person's employment application.
(2) The agency's designation of the position to be filled
and of the sensitivity thereof, together with agency
certifications in accordance with FPM Chapter 732.
All such information shall be submitted to:
Office of Personnel Investigations
Investigation Evaluation Division
U. S. Office of Personnel Management
Post Office Box 886
Washington, D.C. 20044.
(b) All persons whose employment was terminated on account of
the strike by air traffic controllers, which began on or about
August 3, 1981, shall be determined not to be suitable for rein-
statement or appointment in any position in the Federal Aviation
Administration, because it would be detrimental to the efficiency
of that agency by interfering with or preventing its effective
performance of its duties and responsibilities (5 CFR
731.202(a)(2)).
(c) The Office of Personnel Management shall consider, on a
case-by-case basis, applications for Federal employment, other
than in the Federal Aviation Administration, from air traffic
controllers whose employment was terminated on account of strik-
ing, and shall make appropriate determinations of their suitabil-
ity for the particular employment for which they may apply. The
factors which shall be taken into amount in determin. Ng such
suitability shall include, but shall not be limited to, whether or
not, in the course of participating in the strike by air traffic
controllers, applicants engaged in acts such as criminal conduct
(including harm to individuals or to public or private property,
or instigation of an illegal act); misconduct (including harass-
ment of employees performing lawful acts); other delinquency
(including solicitation of others to engage in an improper act);
or any other acts specified in 5 CFR 731.202(b).
FPM Btn. 731-6 (3)
3. Nothing contained herein shall revoke, waive, or otherwise set aside any
notice of proposed termination of employment, any determination or decision to
terminate employment, or any grounds for termination of employment, nor shall
it revoke, waive, or otherwise set aside any right, cause, or right of action
of the Federal A.." ation Administration, the Office of Personnel Management, or
the United States of America against any person whose employment by the United
States Government was terminated on account of the strike by air traffic
controllers which began on or about August 3, 1981.
Dri c.D
Donald J. Devine
Director
THE WHITE HOUSE
WASHINGTON
December 9, 1981
MEMORANDUM FOR THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT
SUBJECT: FEDERAL EMPLOYMENT OF DISCHARGED AIR TRAFFIC CONTROLLERS
The Office of Personnel Management has established the position
that the former air traffic controllers who were discharged for
participating in a strike against the government initiated on
August 3, 1981 shall be debarred from federal employment for a
period of three years. Upon deliberation I have concluded that
such individuals, despite their strike participation, should be
permitted to apply for federal employment outside the scope of their
former employing agency.
Therefore, pursuant to my authority to regulate federal employment,
I have determined that the Office of Personnel Management should
permit federal agencies to receive applications for employment from
these individuals and process them according to established civil
service procedures. Your office should perform suitability
determinations with respect to all such applicants according to
established standards and procedures under 5 CFR, Part 731.
After reviewing reports from the Secretary of Transportation and
the Administrator of the Federal Aviation Administration, I have
further determined that it would be detrimental to the efficiency
of operations at the Federal Aviation Administration and to the
safe and effective performance of our national air traffic control
system to permit the discharged air traffic controllers to return
to employment with that agency. Therefore, these former federal
employees should not be deemed suitable for employment with the
Federal Aviation Administration.
I direct you to process their applications for reemployment with
the federal government accordingly.
RONALD REAGAN
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
December 9, 1981
STATEMENT BY THE PRESIDENT
For the past four-and-a-half months we have kept the airways
safe and the nation's air traffic moving despite a strike
by members of the Professional Air Traffic Controllers
Organization.
We faced a choice last August: concede to the demands of a
union engaged in an illegal strike -- or dismiss the controllers
who violated their oath and walked off their jobs, and keep
the airways operating with the resources available to us.
We made the only choice we could. While we regret the loss
of an experienced work force, we have an even greater commitment
to the people of America to uphold the principles on which
this country is built -- principles of law, due process and
respect for the public trust.
Those principles have been honored, and our commitment to them
remains firm. But at the same time there is another principle
we honor in America -- the tradition that individuals deserve
to be treated with compassion. In that spirit, I am today
extending to the air traffic controllers discharged because of
their actions in striking against the Federal government, an
opportunity to re-apply for Federal employment, in departments
and agencies other than the Federal Aviation Administration.
I do not believe that those who forfeited their jobs as
controllers should be foreclosed from other Federal employment.
I am sure that many of those who were misled or badly advised
regret their action and would welcome an opportunity to return
to Federal service.
So today I am issuing this directive to the Office of Personnel
Management.
First, when the Office of Personnel Management receives applica-
tions for Federal employment from former FAA controllers
terminated by their strike action, it will apply the same
suitability standards as it applies to all other candidates
for jobs with the federal government. This means that each
application will be considered fairly and on a case-by-case
basis.
Second, because returning the striking controllers to their
former positions would adversely affect operational efficiency,
damage morale and perhaps impair safety, the former controllers
will be eligible for employment consideration in any Federal
agency except the Federal Aviation Administration.
I realize that these conditions prevent the ex-controllers from
returning to their former jobs. But in considering an applicant
for a position of public responsibility, we must take into
account not only the ability to perform that job, but the effect
that his or her employment may have on others within the agency.
This is particularly true where the effectiveness of the nation's
air traffic control system and the safety of the airways are at
stake.
###
you ww to Curtin MLiB
THE WHITE HOUSE
Office of the Press Secretary
FOR IMMEDIATE RELEASE
DECEMBER 1, 1981
STATEMENT ON AIR TRAFFIC CONTROLLERS
There has been no change in the President's fundamental position
regarding air traffic controllers.
The President suggested to the Teamsters leaders today that he
was considering the question of whether or not the controllers
who have been fired should continue to be barred from any federal
employment for a three year period, as is currently the case.
Before making any decision, the President wishes to confer with
the Secretary of Transportation.
The President emphasized in the meeting this morning: "Our first
responsibility is to the controllers who stayed on the job, working
long hours to keep the planes flying safely."
#
#
#
OF
THE
U.S. Department of Justice
Office of the Deputy Attorney General
The Deputy Attorney General
Washington, D.C. 20530
September 3, 1981
MEMORANDUM
TO
:
Honorable Fred F. Fielding
Counsel to the President
FROM: Edward C. Schmults
Deputy Attorney General
We thought the attached statement outlining the policy of
the Department of Justice on pursuing prosecution of criminal
cases arising from the Air Controllers' strike might be
useful to you as background information on why the Department
is continuing its activities in this regard. We recently
sent a directive to all U. S. Attorneys not to seek jail
terms in their criminal contempt cases. We contemplate that
a similar position will be taken in the disposition of out-
standing Section 1918 cases. If you have any questions,
please do not hesitate to give me or Rudy Giuliani a call.
Attachment
FOR INTERNAL USE ONLY
PROSECUTION OF STRIKING
AIR TRAFFIC CONTROLLERS
The question has been raised concerning why the Department
of Justice is continuing with its prosecution of striking Air
Traffic Controllers now that those Controllers have been notified
of their dismissal from FAA employment.
In placing the response to this question in appropriate context,
it is important to review briefly the Department's prosecutive policies
and actions. Shortly prior to the inception of the strike, it was,
concluded that, in the event of a strike, prosecutions should be
instituted under the federal anti-strike statute, 18 U.S.C. § 1918,
against the most culpable strike leaders. This decision was made
only after a very extensive review of both the history of the statute
involved and the potential ramifications of a nationwide Controller
strike.
That review indicated that the anti-strike statute was clearly
intended by Congress to prevent and punish the type of activity which
the Air Traffic Controllers were then threatening. Further, the
facts indicated that a Controller strike would constitute a particularly
flagrant violation in which a relatively small group of federal
employees would seek to hold the nation's transportation system hostage
to their wage demands despite the staggering economic impact of such
action as well as its possible national security implications. Accord-
ingly, the decision to prosecute was viewed as a necessary and
appropriate vindication of federal law.
Once the strike was initiated, the Department's utilization of
criminal prosecution was restrained, with cases being filed only against
a small number of the most culpable strike leaders. In all, cases were
filed against 78 striking Controllers.
When the FAA began dismissing striking Controllers, the Department
promptly began phasing out its initiation of new cases under Section
1918. Further, it has continued to review the cases which had been
brought to ensure that the anti-strike statute was appropriately invoked
and was the best possible criminal enforcement medium. As a result two
cases have been dismissed outright and several other cases have been
dismissed in favor of prosecution under the federal criminal contempt
statute, 18 U.S.C. § 401 (3). At present, a total of 70 Controllers
in 19 judicial districts are charged with violation of Section 1918.
In our view it would be extremely unwise to undertake an overall
policy of withdrawing these prosecutions. Two considerations are
particularly key in this regard.
-2-
First, as stated above, the prosecutions were initiated pursuant
to a good-faith effort to vindicate federal law. However, the pre-
mature dismissal of the cases would raise questions in the minds of
many concerning the sincerity of the Department. The appearance would
be created that the prosecutions were initiated merely to pressure
Controllers to return to work and that there was no intention of
carrying the cases through to trial. Such a technique would, of course,
constitute an abuse of the criminal justice system. In the event the
Department might seek to utilize Section 1918 again in the near future,
it would doubtless be confronted by skepticism by judges who would
recall and question the Department's use of the statute in this instance.
(Indeed, in the present cases, some judges might seek to block or cir-
cumvent the dismissal of charges under Section 1918 by insisting that
the Department prosecute the defendants for criminal contempt. In the
event of a refusal by the Department to pursue such prosecutions,
federal judges are empowered to appoint special prosecutors to pursue
the cases.)
Second, premature dismissal of the pending cases would unavoidably
send a message to federal employees who might consider striking in the
future that the Government is not serious about invoking the sanctions
of the anti-strike statute. The deterrent impact of the statute would
be lost or at least sharply limited. It appears unwise to forego this
element of deterrence at this time. Postal Service employees have
recently given serious consideration to striking. Further, as yearly
pay adjustments fail to keep pace with inflation, there may well be
increased consideration given to striking by other groups of federal
employees.
Based on the above considerations, it appears appropriate that
the Department continue to pursue prosecution of the cases which are
now pending under Section 1918. In the event that information is
developed indicating that a particular case should be dismissed or that
the defendant should be permitted to enter into a relatively lenient
plea bargain, the Department will respond appropriately in the context
of that case. Virtually all of the affected U. S. Attorneys strongly
favor such a policy.
obtain coming
THE WHITE HOUSE 10th
WASHINGTON
man please return
8/12/81 call to 777 of 5:40p.m.
ann Wollner
Atlanta Journal
404-526-5361
Believes than certain ptate-
ments made by Reagen in
Oct. to PA TCO contradiot
his present policies. Can
you clainify this matter
for her>
(referried small) by Kanna
ID # 039409CA
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
[PROUT]
o - OUTGOING
H - INTERNAL
I . INCOMING
Date Correspondence
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Name of Correspondent: Craiq Fuller
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User Codes: (A)
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Subject: Processing thing Controller
ROUTE TO:
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ORIGINATOR 81,09,17
S / /
Referral
CUFT03
D
Note: holding Lile 81,09,17 - PATCO ww
C81109121
WIEL
Referral Note:
A
81,09,21
C81,09,21 LDD
Referral Note:
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D - Draft Response
S For Signature
F . Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
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Comments:
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Media:
SIGNATURE CODES:
MEDIA CODES:
CPn - Presidential Correspondence
n-0 - Unknown
B - Box/package
n-1 - Ronald Wilson Reagan
c Copy
n - 2 - Ronald Reagan
D Official document
n-3 Ron
G Message
n-4 Dutch
H Handcarried
n-5 Ron Reagan
L Letter
n - 6 - Ronald
M Mailgram
n-7 Ronnie
O Memo
P - Photo
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V Telephone
X Miscellaneous
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n.1. . Ronald Reagan . Nancy Reagan
n - 2 . Ron Nancy
14 SEP 1981
THE WHITE HOUSE
WASHINGTON
HP- plase
September 11, 1981
me ASAP
MEMORANDUM TO FRED FIELDING
aliyle
FROM:
CRAIG FULLER
S
SUBJECT:
Prosecuting Striking Controllers
Note the attached from the News Summary.
REDACTED
REDAC
This
nov ASAP
Fuller 9/21
A-3
by frustration or fear" just because the economy didn't recover instantly after
passage of his economic program. "And we never promised it would be easy,"
Reagan was quoted as saying. "And we never promised it would be quick We must
stay on a steady, long-term course."
---
In Other National News
JUSTICE DEPARTMENT TO PROSECUTE STRIKING CONTROLLERS
The Justice Department says it is determined to prosecute fired air traffic
controllers charged with violating a federal no-strike law, leaving the possi-
bility that some could serve up to a year in jail on a felony conviction.
Láwyers for the controllers union said at least 80 contollers, many of them
local union leaders, still faced criminal indictments for violating a law that
prohibits federal employees from striking. Lowell Jensen, head of the Justice
Department's Criminal Division, told union attorneys this week that the
government "intends to proceed with all criminal cases" stemming from violation
of the no-strike law.
(H. Josef Herbert, AP, 9/11, 2:19 EDT)
O'CONNOR DISLIKES BUSING, IN FAVOR OF DEATH PENALTY
Supreme Court nominee Sandra D. O'Connor, testifying at her second day of
confirmation hearings, said Thursday she was personally opposed to busing and in
favor of the death penalty. She also expressed doubts, based on her own exper-
iences as a trial judge, about the hotly debated exclusionary rule, which judges
use to throw out evidence illegally seized by police. The Supreme Court is
expected to confront all three controversial issues during 'Connor's life term.
They are also traditional targets of Reagan conservatives, and her statements
Thursday seemed certain to reinforce her own conservative credentials. These
have been questioned by leaders of the New Right, though she stressed that her
personal view would play no role in the resolution of cases before the court.
(Fred Barbash, Washington Post, 9/11, A-2)
JUSTICE DEPT. REVERSES POSITION ON SEATTLE BUSING
The Justice Department continued its reversal of Carter Administration
school desegregation positions yesterday, but stuck with the previous federal
stand in a key sex discrimination case. In a brief to the Supreme Court, Rex E.
Lee, the solicitor general, and William Bradford Reynolds, held of the civil
rights division, said the department no longer believes a Washington state law
barring a voluntary busing plan in Seattle is unconstitutional In another
brief filed late Tuesday, however, Lee and Reynolds continued the previous
Justice position of defending regulations that said Title IX of the Civil Rights
Act of 1964 provides sex discrimination protections to school employes as well
as students. In doing so, they rejected the Department of Education's
recommendation last month that the position be abandoned.
(Charles R. Babcock, Washington Post, 9/11, A-2)
15 JUL 1981
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 14, 1981
TO:
DAVID L. WRIGHT
MAX FRIEDERSDORF
FROM:
FRED F. FIELDING
SUBJECT:
PATCO
This will acknowledge receipt of and thank you for your
materials from Representative Bob McEwen regarding the
above.
In view of the fact that my former law firm was retained by
Secretary Lewis to handle these negotiations for the United
States at a period of time when I was still a partner in the
firm, I have chosen to recuse myself from the matter. I
don't think this recusal is required, but have done so to
remove any potential appearance of conflict or favoritism.
Thus, I have forwarded this material to one of my deputies,
Dick Hauser, for handling. Please direct all future corre-
spondence on this subject to him.
Thank you.
CC: Richard A. Hauser
James Baker III
Edwin Meese, III
-
File
patco /
Company
13 JUL 1981
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 10, 1981
FOR:
FRED FIELDING, COUNSEL TO THE PRESIDENT
THRU:
MAX FRIEDERSDORF, ASSISTANT TO THE PRESIDENT FOR
m.6'
LEGISLATIVE AFFAIRS
KENNETH M. DUBERSTEIN, DEPUTY ASSISTANT TO THE
PRESIDENT FOR LEGISLATIVE AFFAIRS
For
ForD.
FROM: dur DAVID L. WRIGHT, SPECIAL ASSISTANT FOR LEGISLATIVE AFFAIRS
SUBJECT: Professional Air Traffic Controllers Organization
The attached material was sent to our office by Representative
Bob McEwen (R-Ohio), and is forwarded for your information and
any follow-up that may be appropriate.
FYI
BoB McEwEN
MEMBER OF CONGRESS
U.S. HOUSE OF REPRESENTATIVES
WASHINGTON, D. C. 20515
(202)225-5705
LAW OFFICES.
LEIGHTON CONKLIN LEMOV JACOBS AND BUCKLEY
CHARTERED
2033 M STREET, NORTHWEST
RICHARD J. LEIGHTON
WASHINGTON, D. C. 20036
TELEPHONE (202) 785-4800
KENNETH E. CONKLIN
MICHAEL R. LEMOV
CABLE LECON
JERALD A. JACOBS
INTLX 197622
JEREMIAH S. BUCKLEY
WUD 69659
WILLIAM MORRIS
STEVEN M. ROTH
GARY ETHAN KLEIN
RICHARD F. MANN
RONALD M. STRONG
SCOTT D. ANDERSEN
DON ROBERT LONGANO
BRUCE MACKLER
ROBERT RUSSELL SAILEY
NEAL GOLDFARD
OF COUNSEL
WILLIAM R. NOBLE
ROBERT E STEIN
June 30, 1981
Honorable William French Smith
Attorney General
Department of Justice
Washington, D.C. 20530
Dear Mr. Smith:
In a letter dated June 26, 1981, four inembers of the House of Representatives
expressed concern to you that certain laws may have been violated by activities associ-
ated with the endorsement of Governor Ronald Reagan by the Professional Air Traffic
Controllers Organization during Mr. Reagan's campaign for election to President of the
United States. On behalf of PATCO and myself, I would like to volunteer full coopera-
tion with any Department effort to determine if a violation of law has occurred.
Some background information may be useful, perhaps dispositive, in demonstrating
that the Members have no need to be concerned. For ease of reference, the June 26
letter that states their concern is enclosed as Attachment A. Judging from that letter,
from comments made to me by two of its authors at a hearing of a Public Works Sub-
committee on June 19, and from press reports, the concern of the members is that
PATCO "endorsed Reagan after they were assured he would dismiss Langhorne Bond as
head of the Federal Aviation Administration." Washington Post (via Associated Press),
June 28, 1981; Attachment B.
LEIGHTON CONKLIN LEMOV JACOBS AND BUCKLEY
CHARTERED
Honorable William French Smith
Page - 2 -
June 30, 1981
PATCO Did Know Mr. Bond Would Be Replaced
PATCO did endorse Mr. Reagan after learning that Mr. Bond would not be head of
the FAA during any Reagan Administration. The explanation for this fact is quite
simple, and it involves no violation of law. When considering whether to endorse Mr.
Reagan, PATCO was told specifically by campaign aides that, if elected, Mr. Reagan
would replace all major Presidential appointees with qualified personnel of his own
choosing, as was traditional. I recall that this intent was also made clear in several
public statements by key campaign aides for Mr. Reagan, and I believe that one or more
such statements had been made prior to the PATCO endorsement. In addition, the
campaign aides with whom PATCO was discussing these matters indicated that they
thought Mr. Bond was not competent because he had difficulty relating to his employees
and those his agency regulated.
This specific and general understanding was reflected in a document in the form
of an unsigned PATCO letter of October 20, 1980, from me to a volunteer campaign aide
for Mr. Reagan. That letter, enclosed as Attachment C, states that it was PATCO's
understanding that, if Mr. Reagan is elected, "The present Administrator of the Federal
Aviation Administration will be replaced by a competent administrator." Use of the
term "replaced" in that October 20 document, rather than "discharged," is significant in
showing PATCO's assumption that Mr. Bond would resign. It is also significant, as the-
Washington Post article pointed out, that -
"Bond resigned on Inauguration Day, which was not
considered unusual. He was a political appointee in the
Carter Administration and had not been expected to
remain at the post." (Emphasis supplied.)
The Laws Are Not Applicable
In this context of what happened, the laws cited by the concerned legislators are
not applicable. For example, one of the laws is the so-called kick-back law. In pertinent
part, it prohibits causing a person to contribute something of value for the benefit of a
LEIGHTON CONKLIN LEMOV JACOBS AND BUCKLEY
CHARTERED
Honorable William French Smith
Page - 3 -
June 30, 1981
candidate by threatening to deprive or actually depriving that person of employment in
the federal service. See 5601. The facts of the PATCO endorsement cannot be applied
to the provisions of $601. PATCO was never deprived of employment by any candidate.
Given its legislative history, S601 could not be interpreted as being violated by President
Reagan, even if he had discharged Mr. Bond or threatened to so discharge him - which
he did not do, because Mr. Bond resigned as expected, without such a threat. Of course,
the provision cannot be applied to indicate any wrongdoing by PATCO (the alleged
contributor of value) under any circumstance, as the Members of Congress appear to
realize.
Similarly, the other provision cited by the Members of Congress, 18 U.S.C. $600,
cannot be applied in the context of the issue of their concern. That law, in pertinent
part, prohibits the promising of any benefit that is made possible by an Act of Congress
to any person in return for that person's political support. The facts show that President
Reagan, who of course is not a member of the Legislative Branch, never made any such
promise.
Not only is it impossible to apply this provision to the expected resignation of Mr.
Bond, the October 20 PATCO letter makes it clear that PATCO understood that the
President is incapable of making promises relating to what the Legislative Branch might
do. See, for example, the references to the Reagan Administration "taking a position on"
proposed legislation. As with the other provision, $600 cannot be applied to indicate any
wrongdoing by PATCO (the one allegedly to be benefited by legislation), under any cir-
cumstance, as the concerned Members of Congress apparently realize.
Endorsement Based On Recognition of ATC Problems
Of transcending importance in this matter is the fact that PATCO had determined
to endorse Mr. Reagan on the basis of Mr. Reagan's recognition of the unique problems of
air traffic controllers and, especially, because of the Carter Administration's lack of
recognition of these matters. As PATCO President Robert E. Poli stated under oath at
LEIGHTON CONKLIN LEMOV JACOBS AND BUCKLEY
CHARTERED
Honorable William French Smith
Page - 4 -
June 30, 1981
the June 19 subcommittee hearing, PATCO would have endorsed Mr. Reagan if the
October 20 PATCO document (and the discussions it represented) never existed.
It is with this in mind that the documents of concern should be read. The October
20 PATCO document is unusual; as pointed out at that June 19 hearing, it needs consid-
erable explanation in order for it to be understood. The letter was given to the subcom-
mittee after PATCO was requested to produce all materials associated with PATCO's
endorsement of Mr. Reagan..
Necessary Background to October 20 PATCO Letter
Mr. Poli agreed to endorse Mr. Reagan on television at & press conference to be
held with the candidate in Florida on October 23. Up until that time, the discussion of
the endorsement had taken place with volunteers in the Reagan-Bush Campaign organiza-
tion. A letter or some other tangible indication that the candidate, himself, was aware
of the endorsement and the problems of air traffic controllers had been promised. How-
ever, on the virtual eve of the scheduled televised endorsement, no such letter had been
given to PATCO. There was also at that time an announced intention that, if elected,
Mr. Reagan would freeze, and possibly reduce, federal employment.
One of PATCO's major concerns at the time was (and still is) the failure to fully
staff air traffic control positions, thereby leading to excessive (and dangerous) work
levels by those who are forced to take up the slack. Failure to mention air traffic con-
trollers as a possible exception to any freeze or reduction-in-force and failure to produce
the promised evidence of the candidate's personal recognition of the plight of air traffic
controllers gave rise to serious concern. The fear was that either Mr. Reagan or PATCO
might be embarrassed during a televised press conference, if there was no clear under-
standing of their respective positions on issues of concern.
With this in mind, the PATCO document of October 20 was dictated to a volunteer
secretary over the telephone as a record of PATCO's understanding of various positions
LEIGHTON CONKUN LEMOV JACOBS AND BUCKLEY
CHARTERED
Honorable William French Smith
Page- 5 -
June 30, 1981
of the candidate, as relayed through aides. The dictation included a request that any
changes in position be transmitted to PATCO quickly in tangible form so that an embar-
rassment could be prevented, if need be.
After the letter had been transcribed for him, Mr. Michael Balzano, its addressee,
informed me on the telephone that a letter from the candidate definitely was being
drafted and would show a clear understanding and sympathy for the problems of air
traffic- controllers. He also disagreed with two provisions of the October 20 dictation.
This dictation was subsequently typed without change by my secretary and sent unsigned
to Mr. Balzano for his file after an address block, salutation and closing were added.
Letter From Candidate To Take Precedence
The October 20 PATCO letter was not signed for two reasons, as explained to the
subcommittee. First, it did not reflect an enforceable agreement in the legal,
contractual sense and any appearance of that was something the parties sought to
avoid. Second, and more important, the sought-after letter from the candidate was to
take precedence over any other policy statement because it would, personally, reflect
the candidate's recognition of the unique problems of controllers - the major reason for
the endorsement. That letter, by Mr. Reagan, also dated October 20 and received by
PATCO on October 22 or early 23, is enclosed as Attachment D. It provided the basis for
a discussion of approximately 30 minutes between Mr. Poli and Mr. Reagan prior to the
televised news conference. At that press conference, Mr. Reagan was asked by a
reporter whether his proposed freeze would apply to air traffic controllers, and Mr.
Reagan replied that it would not, because controllers provide an essential safety role.
As a relevant aside, it should be noted that President Reagan did freeze federal
employment levels with an order that contained exception for employees such as air
traffic controllers. However, FAA has maintained the freeze with respect to air
traffic controllers despite PATCO protestations.
LEIGHTON CONKUN LEMOV JACOBS AND BUCKLEY
CHARTERED
Honorable William French Smith
Page - 6 -
June 30, 1981
Conclusion
We are confidant that a review of the facts will show that no impropriety took
place in relation to the PATCO endorsement of Governor Reagan, and we stand ready to
cooperate fully with you, should you need additional assistance or clarification.
General Counsel for the
Professional Air Traffic Controllers Organization
Attachments
cc: Chairman James J.Howard
Chairman Elliot H. Levitas
and Members of the Subcommittee on
Investigations and Oversight, Committee
on Public Works
Hon. Robert W. Edgar
Hon. Allen E. Ertel
Congress of the United States
Jouse of Representatibes
Mashington, D.C. 20515
June 26, 1981
Hon. William French Smith
Attorney General
Department of Justice
Washington, D.C. 20530
Dear Mr. Smith:
During recent hearings involving a threatened strike by the Professional
Air Traffic Controllers Organization, a letter of understanding surfaced
which leads one to believe that a violation of the criminal codes may have
been consumated in violation of 18 USC 600 - 601. These sections provide
Sec. 600. Promise of employment or other benefit for
political activity.
Whoever, directly or indirectly, promises any employment,
position, compenstaion, contract, appointment, or other
benefit, provided for or made possible in whole or in part by
any Act of Congress, or any special consideration in obtaining
any such benefit, to any person as consideration favor, or
reward for any political party in connection with any general
or special election to any political office, or in connection
with any primary election or political convention or caucus held
to select candidates for any political office, shall be fined
not more than $10,000 or imprisoned not more than one year, or
both.
As amended Oct. 2, 1976, Public Law 94-453, Sec. 3, 90 Stats.
1517.
Sec. 601. Deprivation of employment or other benefit for
political contribution
(a) Whoever, directly or indirectly, knowingly causes or
attempts to cause any person to make a contribution of a thing
of value (including services) for the benefit of any candidate
or any political party, by means of the denial or deprivation,
or the threat of the denial or deprivation, of ---
(1) any employment, position, or work in or for any agency or
other entry of the Government of the United States, a State, or
a political subdivision of a State, or any compensation or
benefit of such employment, position, or work; or
Page 2
Hon. William French Smith
June 26, 1981
The letter of understanding was the subject of testimony at the hearing
held on June 19, 1981. At that time, the president of PATCO stated
under oath that "It was a memorandum of understanding between myself,
members of the President's staff and the President himself over issues
that we addressed at that particular time."
The letter itself which was made part of the hearing record refers to
"agreements set forth in this letter" and further states that "PATCO
has agreed that it will endorse Governor Reagan for President of the
U.S." and "As evidence of that understanding, Governor Reagan, through
you, Bob Garrick and other agents, has agreed that the following will
take place after the Governor is elected to the Presidency:" These
provisions state clearly a "quid pro quo" in that the Professional Air
Traffic Controllers Organization obtains certain rights in the govern-
mental process and commitments for certain governmental expenditures
upon meeting certain conditions.
As members of Congress, it is our duty to protect the integrity
of the government. This letter of understanding raises serious
questions about the conduct of governmental affairs and the possible
abuse of the governmental process. We hope you will investigate this
matter so that the unfortunate implications of this situation can be
dispelled.
We respectfully submit that you consider the appointment of a special
prosecutor so an impartial investigation can be made.
Sincerely,
APPEN E. Ertel
Buddy
Budd Roemer Roemer
Geraldine A. Ferraro
Bob Bredyan Edgar
Enclosure
ILINK M. ANDERSON, CALIF.
DOM H. CLAUSION, CALIF.
A. NOR. N.L.
SINE SHYDER, KY.
OHN 9. BEEAUX, LA.
JOHN PAUL HAMMERSCHMENT, ARK.
Committee on Public Works and Transportation
ORMAN Y. MINITA, CALIF.
BUD SHUSTER, PA.
SALUTT N. LEVITAS, CA.
MARRY M. GOLDWATER, M., CALIF.
AMSS L CREDITAR, MINDL
TOM MAGEDORN, MINN.
IDEAY 2. HOWAK, N.Y.
ARLAN STANDELAND, MINN.
H.S. house of Representatives
CORERT W. EDGAR, PA.
NEWT GINGRICH, GA.
MARILYN LLOYD BOUQUARD, TENN.
WILLIAM F. CLINGER, JR., PA,
Room 2165, Rapburn House Office Mulling
OHN a. FARY, F
GERALD B. H. BOLOMON, N.Y.
WORKER A. YOUNG, MO.
HAROLD c. HOLLENBECK, N.S.
H. JOEL DECKARD, IND.
Blashington, D.C. 20515
ALLION E. EXTEL PA.
ELLY LEX EVANS, GA.
WAYNE R. GRISHAM, CALIF.
RONNIE a FLIPPO, ALA.
JIM JEFFRIES, KANS.
TELEPHONE: AREA Coos 202, 225-4472
NICK JOE RAHALL 11, W. VA.
JACK FIELDS, TEX.
DOUGLAS APPLECATE, OHIO
QUY MOLINARI, N.Y.
DERALDINE A. PERRARO, N.Y.
E. CLAY SHAW, JR., PLA.
DUGENE V. ATKINSON, PA.
BOB MC EWEN, OHIO
DONALD JOSEPH ALBOSTA, MICH,
FRANK WOLF, VA.
WILLIAM HILL BONER, TENH,
RON DE LUGO, VIRGIN ISLANDS
SALVATORE do D'AMICO, SPECIAL
June 24, 1981
DUS SAVAGE, ILL
COUNSEL AND STAFF DIRECTOR
FOFO 1. F. SUNLA, AM. BAMOA
RICHARD 2 SULLIVAN, CHIEF COUNSEL
BUDDY ROEMER, LA.
ROBERT K. DAWSON, ADMINISTRATOR
BRIAN & DONNELLY, MASS.
CLYDE E. WOODLE, CHIEF ENGINEER
RAY KOGOVSKK, COLD.
LARRY REIDA, MINORITY COUNSEL
MEMORANDUM
TO:
Chairman Levitas
FROM: Dick Sullivan
On Friday, June 19, 1981, representatives of the Professional Air
Traffic Controllers Organization testified before the Subcommittee
on Investigations and Oversight in connection with a threatened air
traffic controllers strike.
During the course of the hearings testimony presented by Robert E. Poli,
President of the Association and by his associates, Mr. Robert E. Meyer,
Executive Vice President, and by Mr. Richard J. Leighton, General Counsel,
disclosed the following: That during the course of the recent presidential
campaign the Air Traffic Controllers Association had attempted to ascertain
from the presidential candidates what their positions would be concerning
certain items of interest to their organization:
A letter dated October 20, 1980, addressed to Mr. Poli by the then Governor
Reagan as candidate, copy of which is attached, indicated his support and
interest in the aims and operations of the Air Traffic Controllers Association.
An unsigned letter dated the same day and addressed to Michael Balzano, at
Reagan-Bush Campaign Headquarters bearing the letterhead of Leighton, Conklin,
Lemov and Jacobs, a law firm in Washington, D. C. laid out a purported list
of understandings that the Air Traffic Controllers Association would require
from the then Governor Reagan for their support for his candidacy. The letter
attached herewith is self-explanatory. Both of these letters were introduced
into the record of the hearings and made part thereof.
Testimony from Mr. Leighton, General Counsel, for the Air Traffic Controllers
Association after the unsigned comunication was introduced in the record
indicates that:
1. The letter not being signed was intentional.
2. This was not any sort of binding legal agreement.
3. This was simple a talking point by the Air Traffic Controllers and people
from Reagan-Bush headquarters.
-2-
4. That the letter was further clarified with some minor technical changes
by representatives of Reagan-Bush.
5. Although the Controllers in the letter indicate their desire for certain
points they had no built-in veto.
6. According to heresay testimony the Controllers Organization was told but
never saw this as a fact that "appropriate people at the White House
initialed the letter and received and understood it".
7. That while references were made to White House People in the testimony
actually at the time of the letter no one involved in this matter had
any direct connection with the White House.
Title 28 of the United States Code, Sec. 601, establishes under Chapter 39
the Office of Special Prosecutor under the aegis of the Attorney General
whenever said Attorney General receives information there has been violation
of a Federal Criminal Law by specific individuals including among others the
President and Vice President of the United States, copy of same is attached.
A motion is pending before the Committee to refer the letters in question
and the pertinent testimony to the Department of Justice for further consideration
and investigation.
Testimony before the Committee indicates the following facts:
1. An unsigned letter memo at most can be considered only as a unilateral
contract.
2. Testimony from the witnesses indicates it was their clear understanding
that the letter was a clarification of the normal procedure used during
a campaign to obtain candidate support.
3. No evidence whatsoever except for heresay testimony that anyone other than
the witnesses before the Committee were directly involved in this operation.
The point being that in testimony given by witnesses before the Committee
they are unable to identify or name specific people who were involved with
this letter other than the addressee Michael Balzano.
The question arises has there been such a violation of Federal Election Law or
any other law that the support for the candidate was a direct quid pro quo with
certain parties expecting certain results. No evidence before the Committee
indicates this.
Under the circumstances, it would appear that there is insufficient testimony
and certainly insufficient physical evidence to transmit this matter to the
Department of Justice for future prosecution.
LAW OFFICES
CHARD J. LEIGHTON
LEIGHTON CONKLIN LEMOV AND JACOBS
NNETH E. CONKLIN
CHARTERED
CHAEL R. LEMOV
RALD A. JACOBS
2033 M STREET, NORTHWEST
CREMIAH 5. BUCKLEY
ONALD D. COLEMAN
WASHINGTON, D.C. 20036
TELEPHONE: (202) 785-4800
NDA 5. ZENGERLE
CABLE: LECON
ARY ETHAN KLEIN
CHARD F. MANN
INTLX: 197622
LIE HUNT BLAIR
WUD 89659
NALD M. STRONG
ALTER B. MCCORMICK, JR.
COTT D. ANDERSEN
DON ROBERT LONGANO
October 20, 1980
OF COUNSEL
LLIAM R. NOBLE
ROBERT E. STEIN
Michael Balzano, Ph.D.
Reagan-Bush Campaign Headquarters
901 South Highland Street
Arlington, Virginia 22204
Dear Mike:
This is the letter of understanding that I read to you relating to the endorsement
of Governor Ronald Reagan by the Professional Air Traffic Controllers Organization.
If you or anyone else in the Governor's campaign has second thoughts about any of
the agreements set forth in this letter, please respond immediately by certified mail or
by telegram to me, so that the PATCO endorsement can be aborted before anyone suf-
fors any embarrassment.
PATCO, through its President, Robert E. Pull, has agreed that it will endorse
Governor Reagan for President of the United States. This will be done because PATCO
believes that the Governor, more than any other candidate, has a better understanding of
the needs of the flying public and air traffic controllers who provide service to that
public.
As evidence of that understanding, Governor Reagan, through you, Bob Garrick
and other agents, has agreed that the following will take place after the Governor is
elected to the Presidency:
1.
The present Administrator of the Federal Aviation Administration
will be replaced by a competent administrator.
2.
PATCO will play a role in the process for replacing the FAA Admini-
strator, and that role shall include the following:
LEIGHTON CONKLIN LEMOV AND JACOBS
CHARTERED
Michael Balzano, Ph.D.
Page - 2 - -
October 20, 1980
a.
A reasonable opportunity to recommend nomi-
nees for the FAA Administrator's position.
b.
Serious consideration of such PATCO recom-
mendations by those in the Reagan Administra-
tion who will be selecting the FAA nominee.
C.
A reasonable opportunity to review and comment
on the final choice(s) for FAA Administrator,
prior to a commitment being made to nominate
any particular person to the job.
d.
Rejection by the Reagan Administration of any
such final choice for FAA Administrator, if
PATCO notifies the selectors that such choice is
totally objectionable to PATCO.
3.
The Reagan Administration will commit itself to improving air traffic
control by taking actions to assure that outdated air traffic control
equipment is replaced as soon as feasible.
4.
The Reagan Administration will support legislation designed to reduce
the hours of work of air traffic controllers (but not their unnual
salaries) if PATCO can demonstrate that such a reduction is needed
to assure safety to the flying public and to air traffic controllers.
5.
The Reagan Administration will commit itself to fully staffing air
traffic control positions at air traffic terminals and en route centers
on the grounds that understaffed facilities present a danger to the
flying public.
6.
The Reagan Administration will give PATCO a reasonable opportunity
to advocate PATCO's position to appropriate members of the Reagan
Administration with respect to any proposed legislation directly
affecting air traffic controllers, prior to the Reagan Administration
taking a position on that legislation. This proposed legislation may
include proposals to --
LEIGHTON CONKLIN LEMOV AND JACOBS
CHARTENED
Michael Balzano, Ph.D.
Page - 3- -
October 20, 1980
a.
Increase pay of air traffic controllers;
b.
Give air traffic controllers stronger negotiating
rights in collective bargaining equal to or in
excess of those enjoyed by postal workers, and
C.
Give air traffic controllers the right to strike in
certain circumstances.
7.
The Reagan Administration will recognize that air traffic controllers
are unique among government workers, and because of the existing
significant problems in the air traffic control system, the working
conditions of air traffic controllers are deserving of priority review.
Sincerely,
LEIGHTON CONKLIN LEMOV AND JACOBS
Richard J. Leighton
General Counsel
Professional Air Traffic Controllers
Organization
Copy: Robert E. Poli
(Dictated to Mrs. Baizano. Mike Balzano acknowledged that it was typed and on
October 23, 1980 stated that he would put it in the Reagan file on PATCO, un-
signed.)
RONALD REAGAN
October 20, 1980
Robert E. Poli, President
Professional Air Traffic Controllers
Organization
443 Capitol Street
Washington, D. C.
Dear Mr. Poli:
I have been thoroughly briefed by members of my staff
an to the deplorable state of our nation's air traffic
control system. They have told #:0 that too few people
working unreasonable hours with obsolete equipment has
placed the nation's air travellers in unwarranted
danger. In an area 50 clearly related to public safety
the Carter administration has failed to act responsibly.
You can rest assured that if I an elected President, I
will take whatever steps are necessary to provide our
air traffic controllers with the most codern equipment
available and to adjust staff levels and work days so
that they are commonsurate with achieving a caxious
degree of public safety.
As In all other areas of the (ederal government whoro
the President has the power of appointment, I fully in-
tend to appoint highly qualified individuals who can
work harmoniously with the Congress and the employees
of the government agencies they oversee.
: pledge to you that =y administration will work very
closely with you to bring about a spirit of cooperation
between the President and the air traffic controllers.
such harmony can and must exist !! we are to restore
the people's confidence in their covernment.
Sincerely,
Ronald Reagan
RONALD REACAN
PUBLIC LAW 95-521-OCT. 26, 1978
92 STAT. 1867
the United States), any informal or formal appearance before, or, with
the intent to influence, any oral or written communication to, such
department or agency on a pending matter of business for a period not
to exceed five years, or may take other appropriate disciplinary action.
Such disciplinary action shall be subject to review in an appropriate
United States district court. No later than six months after the effec-
Departments and
tive date of this Act, departments and agencies shall, in consultation
agencies,
with the Director of the Office of Government Ethics, establish proce- consultation.
dures to carry out this subsection.".
(b) The item relating to section 207 in the table or sections at the
beginning of chapter 11 of title 18, United States Code, is amended 18 USC 201.
to read as follows:
"207. Disqualification of former officers and employees; disqualification of
partners of current officers and employees.".
APPLICABILITY
SEC. 502. The amendments made by section 501 shall not apply to 18 USC note.
those individuals who left Government service prior to the effective
date of such amendments or, in the case of individuals who occupied
positions designated pursuant to section 207 (d) of title 18, United
States Code, prior to the effective date of such designation; except that
any such individual who returns to Government service on or after the
effective date of such amendments or designation shall be thereafter
covered by such amendments or designation.
EFFECTIVE DATE
Sec. 503. The amendments made by section 501 shall become effective 18 USC207 note.
on July 1, 1979.
TITLE VI-AMENDMENTS TO TITLE 28,
UNITED STATES CODE
SPECIAL PROSECUTOR
SEC. 601. (a) Title 28 of the United States Code is amended by
inserting immediately after chapter 37 the following new chapter:
28 USC 581.
"Chapter 39.-SPECIAL PROSECUTOR
"Sec.
"591. Applicability of provisions of this chapter.
"592 Application for appointment of a special prosecutor.
"593. Duties of the division of the court.
"594. Authority and duties of a special prosecutor.
"595. Reporting and congressional oversight.
"596. Removal of a special prosecutor: termination of office.
"597. Relationship with Department of Justice.
"598. Termination of effect of chapter.
"§ 591. Applicability of provisions of this chapter
28 USC 591.
"(a) The Attorney General shall conduct an investigation pursuant Investigation.
to the provisions of this chapter whenever the Attorney General
receives specific information that any of the persons described in sub-
section (b) of this section has committed a violation of any Federal
criminal law other than a violation constituting a petty offense.
92 STAT. 1868
PUBLIC LAW 95-521-OCT. 26, 1978
"(b) The persons referred to in subsection (a) of this section are-
"(1) the President and Vice President;
"(2) any individual serving in a position listed in section 5312
of title 5;
"(3) any individual working in. the Executive Office of the
President and compensated at a rate not less than the annual rate
of basic pay provided for level IV of the Executive Schedule under
section 5315 of title 5;
"(4) any individual working in the Department of Justice and
compensated at a rate not less than the annual rate of basic pay
provided for level III of the Executive Schedule under section
5314 of title 5, any Assistant Attorney General, the Director of
Central Intelligence, the Deputy Director of Central Intelligence,
and the Commissioner of Internal Revenue;
(5) any individual who held any office or position described in
any of paragraphs (1) through (4) of this subsection during the
incumbency of the President or during the period the last pre-
ceding President held office, if such preceding President was of
the same political party as the incumbent President; and
(6) any officer of the principal national campaign committee
seeking the election or reelection of the President.
28 USC 592.
"§ 592. Application for appointment of a special prosecutor
Preliminary
"(a) The Attorney General, upon receiving specific information
investigation.
that any of the persons described in section 591 (b) of this title has
engaged in conduct described in section 591 (a) of this title, shall
conduct, for a period not to exceed ninety days, such preliminary
investigation of the matter as the Attorney General deems appropriate.
Notification.
"(b) (1) If the Attorney General, upon completion of the prelim-
inary investigation, finds that the matter is so unsubstantiated that
no further investigation or prosecution is warranted, the Attorney
General shall 60 notify the division of the court specified in section
593(a) of this title, and the division of the court shall have no power
to appoint a special prosecutor.
"(2) Such notification shall be by memorandum containing a sum-
mary of the information received and a summary of the results of any
preliminary investigation.
"(3) Such memorandum shall not be revealed to any individual
outside the division of the court or the Department of Justice without
leave of the division of the court.
"(c) (1) If the Attorney General, upon completion of the prelim-
inary investigation, finds that the matter warrants further investiga-
tion or prosecution, or if ninety days elapse from the receipt of the
information without a determination by the Attorney General that
the matter is so unsubstantiated as not to warrant further investigation
or prosecution, then the Attorney General shall apply to the division
of the court for the appointment of a special prosecutor.
(2) If-
(A) after the filing of a memorandum under subsection (b)
of this section, the Attorney General receives additional specific
information about the matter to which such memorandum related,
and
"(B) the Attorney General determines, after such additional
investigation as the Attorney General deems appropriate, that
such information warrants further investigation or prosecution,
then the Attorney General shall, not later than ninety days after
PUBLIC LAW 95-521-OCT. 26, 1978
92 STAT. 1869
receiving such additional information, apply to the division of the
court for the appointment of a special prosecutor.
(d) (1) Any application under this chapter shall contain sufficient
information to assist the division of the court to select a special prose-
cutor and to define that special proseculor's prosecutorial jurisdiction.
"(2) No application or any other documents, materials, or memoran-
dums supplied to the division of the court under this chapter shall be
revealed to any individual outside the division of the court or the
Department of Justice without leave of the division of the court.
(e) The Attorney General may ask a special prosecutor to accept
referral of a matter that relates to a matter within that special prose-
cutor's prosecutorial jurisdiction.
"(f) The Attorney General's determination under subsection (c) of
this section to apply to the division of the court for the appointment
of a special prosecutor shall not be reviewable in any court.
"§ 593. Duties of the division of the court
28 USC 593.
"(a) The division of the court to which this chapter refers is the
division established under section 49 of this title.
"(b) Upon receipt of an application under section 592(c) of this Appointment.
title, the division of the court shall appoint an appropriate special
prosecutor and shall define that special prosecutor's prosecutorial
jurisdiction. A special prosecu identity and prosecutorial jurisdic-
tion shall be made public upon request of the Attorney General or
upon a determination of the division of the court that disclosure of
the identity and prosecutorial jurisdiction of such special prosecut or
would be in the best interests of justice. In any event the identity and
prosecutorial jurisdiction of such prosecutor shall be made public when
any indictment is returned or any criminal information is filed.
(c) The division of the court, upon request of the Attorney Gen-
eral which may be incorporated in an application under this chapter,
may expand the prosecutorial jurisdiction of an existing special prose-
cutor, and such expansion may be in lieu of the appointment of an
additional special prosecutor.
"(d) The division of the court may not appoint as a special prose-
cutor any person who holds or recently held any office of profit or
trust under the United States.
" (e) If a vacancy in office arises by reason of the resignation or Vacancy.
death of a special prosecutor, the division of the court may appoint a
special prosecutor to complete the work of the special prosecutor whose
resignation or death caused the vacancy. If a vacancy in office arises
by reason of the removal of a special prosecutor, the division of the
court may appoint an acting special prosecutor to serve until any
judicial review of such removal is completed. Upon the completion of
such judicial review, the division of the court shall take appropriate
action.
"§ 594. Authority and duties of a special prosecutor
28 USC 594.
"(a) Notwithstanding any other provision of law, a special prosecu-
tor appointed under this chapter shall have, with respect to all matters
in such special prosecutor's prosecutorial jurisdiction established under
this chapter, full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the Depart-
ment of Justice, the Attorney General, and any other officer or
employee of the Department of Justice, except that the Attorney
General shall exercise direction or control as to those matters that
92 STAT. 1870
PUBLIC LAW 95-521-OCT. 26, 1978
specifically require the Attorney General's personal action under sec-
tion 2516 of title 18. Such investigative and prosecutorial functions and
powers shall include-
"(1) conducting proceedings before grand juries and other
investigations;
(2) participating in court proceedings and engaging in any
litigation, including civil and criminal matters, that such special
prosecutor deems necessary;
(3) appealing any decision of a court in any case or proceeding
in which such special prosecutor participates in an official
capacity;
(4) reviewing all documentary evidence available from any
source;
"(5) determining whether to contest the assertion of any
testimonial privilege;
"(6) receiving appropriate national security clearances and, if
necessary, contesting in court (including, where appropriate,
participating in in camera proceedings) any claim of privilege
or attempt to withhold evidence on grounds of national security:
"(7) making applications to any Federal court for & grant of
immunity to any witness, consistent with applicable statutory
requirements, or for warrants, subpenas, or other court orders,
and, for purposes of sections 6003, 6004. and 6005 of title 18,
exercising the authority vested in a United States attorney or the
Attorney General;
"(8) inspecting, obtaining, or using the original or a copy of
any tax return, in accordance with the applicable statutes and
regulations, and, for purposes of section 6103 of the Internal
Revenue Code of 1954, and the regulations issued thereunder, exer-
cising the powers vested in a United States attorney or the Attor-
ney General; and
is (9) initiating and conducting prosecutions in any court of
competent jurisdiction, framing and signing indictments, filing
informations. and handling all aspects of any case in the name
of the United States.
Compensation.
(b) A special prosecutor appointed under this chapter shall receive
compensation at a per diem rate equal to the annual rate of basic pay
for level IV of the Executive Schedule under section 5315 of title 5.
Employees,
"(c) For the purposes of carrying out the duties of the office of
appointment.
special prosecutor, a special prosecutor shall have power to appoint, -
fix the compensation, and assign the duties, of such employees as such
special prosecutor deems necessary (including investigators, attorneys,
and part-time consultants). The positions of all such employees are
Compensation.
exempted from the competitive service. No such employee may be
compensated at a rate exceeding the maximum rate provided for
GS-18 of the General Schednle under section 5332 of title 5.
Assistance.
"(d) A special prosecutor may request assistance from the Depart-
ment of Justice. and the Department of Justice shall provide that
assistance, which may include access to any records, files, or other
materials relevant to matters within such special prosecutor's prose-
cutorial jurisdiction, and the use of the resources and personnel
necessary to perform such special prosecutor's duties.
"(e) A special prosecutor may ask the Attorney General or the
division of the court to refer matters related to the special prosecutor's
prosecutorial jurisdiction. A special prosecutor may accept referral
PUBLIC LAW 95-521-OCT. 26, 1978
92 STAT. 1871
of a matter by the Attorney General, if the matter relates to a matter
within such special prosecutor's prosecutorial jurisdiction as estab-
lished by the division of the court. If such a referral is accepted, the Notification.
special prosecutor shall notify the division of the court.
(f) A special prosecutor shall, to the extent that such special
prosecutor deems appropriate, comply with the written policies of
the Department of Justice respecting enforcement of the criminal laws.
"§ 595. Reporting and congressional oversight
28 USC 595.
(a) A special prosecutor appointed under this chapter may make
public from time to time, and shall send to the Congress statements
or reports on the activities of such special prosecutor. These state-
ments and reports shall contain such information as such special prose-
cutor deems appropriate.
(b) (1) In addition to any reports made under subsection (a) of
this section, and before the termination of a special prosecutor's office
under section 596 (b) of this title, such special prosecutor shall submit
to the division of the court a report under this subsection.
(2) A report under this subsection shall set forth fully and com-
Report contents.
pletely a description of the work of the special prosecutor, including
the disposition of all cases brought, and the reasons for not prosecuting
any matter within the prosecutorial jurisdiction of such special prose-
cutor which was not prosecuted.
(3) The division of the court may release to the Congress, the
public, or to any appropriate person, such portions of a report made
under this subsection as the division deems appropriate. The division
of the court shall make such orders as are appropriate to protect the
rights of any individual named in such report and to prevent undue
interference with any pending prosecution. The division of the court
may make any portion of a report under this section available to any
individual named in such report for the purposes of receiving within
a time limit set by the division of the court any comments or factual
information that such individual may submit. Such comments and
factual information, in whole or in part, may in the discretion of such
division be included as an appendix to such report.
"(c) A special prosecutor shall advise the House of Representatives
of any substantial and credible information which such special prose-
cutor receives that may constitute grounds for an impeachment.
Nothing in this chapter or section 49 of this title shall prevent the
Congress or either House thereof from obtaining information in the
course of an impeachment proceeding.
(d) The appropriate committees of the Congress shall have over-
Oversight
sight jurisdiction with respect to the official conduct of any special
jurisdiction.
prosecutor appointed under this chapter, and such special prosecutor
shall have the duty to cooperate with the exercise of such oversight
jurisdiction.
"(e) A majority of majority party members or a majority of all non-
majority party members of the Committee on the Judiciary of either
House of the Congress may request in writing that the Attorney Gen-
eral apply for the appointment of a special prosecutor. Not later than
Written
thirty days after the receipt of such a request, or not later than fifteen
notification.
days after the completion of a preliminary investigation of the matter
with respect to which the request is made, whichever is later, the Attor-
ney General shall provide written notification of any action the Attor-
ney General has taken in response to such request and, if no application
92 STAT. 1872
PUBLIC LAW 95-521-OCT. 26, 1978
has been made to the division of the court, why such application was
not made. Such written notification shall be provided to the committee
on which the persons making the request serve, and shall not be
revealed to any third party, except that the committee may, either
on its own initiative or upon the request of the Attorney General, make
public such portion or portions of such notification as will not in the
committee's judgment prejudice the rights of any individual.
28 USC 596.
"& 596. Removal of a special prosecutor; termination of office
(a) (1) A special prosecutor appointed under this chapter may be
removed from office, other than by impeachment and conviction, only
by the personal action of the Attorney General and only for extraor-
dinary impropriety, physical disability, mental incapacity, or any
other condition that substantially impairs the performance of such
special prosecutor's duties.
Report, submittal
"(2) If a special prosecutor is removed from office, the Attorney
to congressional
General shall promptly submit to the division of the court and the
committees.
Committees on the Judiciary of the Senate and the House of Represent-
atives a report specifying the facts found and the ultimate grounds for
such removal. The committees shall make available to the public such
report, except that each committee may, if necessary to protect the
rights of any individual named in the report or to prevent undue
interference with any pending prosecution, delete or postpone pub-
lishing any or all of the report. The division of the court may release
any or all of such report in the same manner as a report released
under section 595(b) (3) of this title and under the same limitations
as apply to the release of a report under that section.
Judicial review.
(3) A special prosecutor so removed may obtain judicial review
of the removal in a civil action commenced before the division of
the court and, if such removal was based on error of law or fact, may
obtain reinstatement or other appropriate relief. The division of the
court shall cause such an action to be in every way expedited.
Notification.
(b) (1) An office of special prosecutor shall terminate when (A) the
special prosecutor notifies the Attorney General that the investigation
of all matters within the prosecutorial jurisdiction of such special
prosecutor or accepted by such special prosecutor under section 594
(e) of this title, and any resulting prosecutions, have been completed
or so substantially completed that it would be appropriate for the
Department of Justice to complete such investigations and prosecu-
tions and (B) the special prosecutor files a report in full compliance
with section 595 (b) of this title.
"(2) The division of the court, either on its own motion or upon
suggestion of the Attorney General, may terminate an office of
special prosecutor at any time, on the ground that the investigation
of all matters within the prosecutorial jurisdiction of the special prose-
cutor or accepted by such special prosecutor under section 594(e) of
this title, and any resulting prosecutions, have been completed or so
substantially completed that it would be appropriate for the Depart-
ment of Justice to complete such investigations and prosecutions. At
the time of termination, the special prosecutor shall file the report
required by section 595 (b) of this title.
28 USC 597.
"§ 597. Relationship with Department of Justice
(a) Whenever a matter is in the prosecutorial jurisdiction of a
special prosecutor or has been accepted by a special prosecutor under
section 594(e) of this title, the Department of Justice, the Attorney
PUBLIC
General, and all other officers and employees of the Department of
Justice shall suspend all investigations and proceedings regarding such
matter, except to the extent required by section 594 (d) of this title, and
except insofar as such special prosecutor agrees in writing that such
investigation or proceedings may be continued by the Department of
Justice.
" (b) Nothing in this chapter shall prevent the Attorney General
or the Solicitor General from making a presentation as amicus curiae
to any court as to issues of law raised by any case or proceeding in which
a special prosecutor participates in an official capacity or any appeal of
such a case or proceeding.
"§ 598. Termination of effect of chapter
28 USC 598.
"This chapter shall cease to have effect five years after the date of the
enactment of this chapter, except that this chapter shall continue in
effect with respect to then pending matters before a special prosecutor
that in the judgment of such special prosecutor require such continus-
tion until that special prosecutor determines such matters have been
completed.".
(b) The tables of chapters for title 28 of the United States Code
and for part II of such title 28 are each amended by inserting immedi-
ately after the item relating to chapter 37 the following new item:
"39. Special prosecutor.".
(c) There are authorized to be appropriated for each fiscal year such
Appropriation
sums as may be necessary, to be held by the Department of Justice as a
authorization.
contingent fund for the use of any special prosecutors appointed under
28 USC 591 note.
chapter 39 (relating to special prosecutor) of title 28 of the United
States Code in the carrying out of functions under such chapter.
ASSIGNMENT OF JUDGES TO DIVISION TO APPOINT SPECIAL PROSECUTORS
SEC. 602. (a) Chapter 3 of title 28 of the United States Code is
amended by adding at the end the following:
"§ 49. Assignment of judges to division to appoint special pros- 28 USC 49.
ecutors
(a) Beginning with the two-year period commencing on the date of
the enactment of this section, three judges or justices shall be assigned
for each successive two-year period to a division of the United States
Court of Appeals for the District of Columbia to be the division of the
court for the purpose of appointing special prosecutors.
" (b) Except as provided under subsection (f) of this section, assign-
ment to such division of the court shall not be a bar to other judicial
assignments during the term of such division.
"(c) In assigning judges or justices to sit on such division of the Priority.
court, priority shall be given to senior circuit judges and retired
justices.
"(d) The Chief Justice of the United States shall designate and
assign three circuit court jndges or justices, one of whom shall be a
judge of the United States Court of Appeals for the District of
Columbia, to such division of the court. Not more than one judge
or justice or senior or retired judge or justice may be named to such
division from a particular court.
"(e) Any vacancy in such division of the court shall be filled only Vacancy.
for the remainder of the two-year period in which such vacancy
39-194 0-80-pt 2-38 : QL3
92 STAT. 1874
PUBLIC LAW 95-521-OCT. 26, 1978
occurs and in the same manner as initial assignments to such division
were made.
"(f) Except as otherwise provided in chapter 39 of this title, no
member of such division of the court who participated in a function
conferred on the division under chapter 39 of this title involving a
special prosecutor shall be eligible to participate in any judicial pro-
ceeding concerning a matter which involves such special prosecutor
while such special prosecutor is serving in that office or which involves
the exercise of such special prosecutor's official duties, regardless of
whether such special prosecutor is still serving in that office.".
(b) The table of sections for chapter 3 of title 28 of the United States
Code is amended by adding at the end the following item:
"49. Assignment of judges to division to appoint special prosecutors.".
DISQUALIFICATION OF OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF
JUSTICE AND ANNUAL REPORT OF ATTORNEY GENERAL
SEC. 603. (a) Chapter 31 of title 28 of the United States Code is
amended by adding at the end the following:
28 USC 528.
"§ 528. Disqualification of officers and employees of the Depart.
ment of Justice
Rules and
"The Attorney General shall promulgate rules and regulations which
regulations.
require the disqualification of any officer or employee of the Depart-
ment of Justice, including a United States attorney or a member of
such attorney's staff, from participation in a particular investigation
or prosecution if such participation may result in a personal, finan-
cial, or political conflict of interest, or the appearance thereof. Such
rules and regulations may provide that a willful violation of any
provision thereof shall result in removal from office.
23 USC 529.
"§ 529. Annual report of Attorney General
Report to
"Beginning on June 1, 1979, and at the beginning of each regular
Congress.
session of Congress thereafter, the Attorney General shall report to
Congress on the activities and operations of the Public Integrity
Section or any other unit of the Department of Justice designated to
supervise the investigation and prosecution of-
"(1) any violation of Federal criminal law by any individual
who holds or who at the time of such violation held a position,
whether or not elective, as a Federal Government officer, employee,
or special employee, if such violation relates directly or indirectly
to such individual's Federal Government position, employment,
or compensation;
"(2) any violation of any Federal criminal law relating to
lobbying, conflict of interest, campaigns, and election to public
office committed by any person, except insofar as such violation
relates to a matter involving discrimination or intimidation on
grounds of race, color, religion, or national origin;
(3) any violation of Federal criminal law by any individual
who holds or who at the time of such violation held a position,
whether or not elective, as a State or local government officer or
employee, if such violation relates directly or indirectly to such
individual's State or local government position, employment, or
compensation; and
(4) such other matters as the Attorney General may deem
appropriate.
PUBLIC LAW 95-521-OCT. 26, 1978
92 STAT. 1875
Such report shall include the number, type, and disposition of all
investigations and prosecutions supervised by such Section or such
unit, except that such report shall not disclose information which
would interfere with any pending investigation or prosecution or
which would improperly infringe upon the privacy rights of any
individuals.".
(b) The table of sections for chapter 31 of title 28 of the United
States Code is amended by adding at the end of the following:
"528. Disqualification of officers and employees of the Department of Justice.
"529. Annual report of Attorney General.".
EFFECTIVE DATE
SEC. 604. Except as provided in this section, the amendments made 28 USC 591 note.
by this title shall take effect on the date of the enactment of this Act.
The provisions of chapter 39 of title 28 of the United States Code,
as added by section 601 of this Act, shall not apply to specific informa-
tion received by the Attorney General pursuant to section 591 of such
title 28, if the Attorney General determines that-
(1) such specific information is directly related to a prosecu-
tion pending at the time such specific information is received by
the Attorney General;
(2) such specific information is related to a matter which has
been presented to a grand jury and is received by the Attorney
General within one hundred and eighty days of the date of the
enactment of this Act; or
(3) such specific information is related to an investigation that
is pending at the time such specific information is received by the
Attorney General, and such specific information is received by the
Attorney General within ninety days of the date of the enactment
of this Act.
TITLE VII-SENATE LEGAL COUNSEL
ESTABLISHMENT OF OFFICE OF SENATE LEGAL COUNSEL
SEC. 701. (a) (1) There is established, as an office of the Senate, the 2 USC 288.
Office of Senate Legal Counsel (hereinafter referred to as the "Office"),
which shall be headed by a Senate Legal Counsel (hereinafter referred
to as the "Counsel") ; and there shall be a Deputy Senate Legal Coun-
sel (hereinafter referred to as the "Deputy Counsel") who shall per-
form such duties as may be assigned to him by the Counsel and who,
during any absence, disability, or vacancy in the position of the
Counsel, shall serve as Acting Senate Legal Counsel.
(2) The Counsel and the Deputy Counsel each shall be appointed
Counsel and
by the President pro tempore of the Senate from among recommenda-
Deputy Counsel,
tions submitted by the majority and minority leaders of the Senate.
appointment.
Any appointment made under this paragraph shall be made without
regard to political affiliation and solely on the basis of fitness to per-
form the duties of the position. Any person appointed as Counsel or
Deputy Counsel shall be learned in the law, a member of the bar of
a State or the District of Columbia, and shall not engage in any other
business, vocation, or employment during' the term of such
appointment.
(3) (A) Any appointment made under paragraph (2) shall become Appointment,
effective upon approval by resolution of the Senate. The Counsel Senate approval.
NAME: HPW 170010
PAGE 128
3070
Mr. LEVITAS. I am not clear about a tape that Mr. Helms-
3071
on the radio or
3072
Mr. POLI. I was going to explain to you just in my terms,
3073
Mr. Chairman. When I got back to the office certainly there
3074
were a lot of phone calls and everything else and a member
3075
of my staff came in and reported to me that we had problems
3076
in Miami, that a tape was being played on an answering
3077
service or a phone call for all controllers in the country.
3078
In Miami it had a chilling effect on the controllers.
3079
They walked out of the meeting and were very upset. I
3080
advised him at that time to call all the facilities where
3081
the tape was, tell the people to be cool and stay on the
3082
job, and no problems at this particular time.
3083
Mr. LEVITAS. Well, I am going to, in addition to what you
3084
are doing, I am going to ask our staff to check on this
3085
right now, because in the event that this is nothing more
3086
than a rumor, it is a rumor that ought to be squelched right
3087
away.
3088
Mr. POLI. I will check on it also, Mr. Chairman.
3089
Mr. LEVITAS. Let me get back just for a moment to this
3090
October 20, 1980 letter. The date of the letter that Mr.
3091
Reagan wrote to you is also, I believe, October 20. Is that
3092
correct?
3093
Mr. POLI. Yes sir.
3094
Mr. LEVITAS. Were these two documents related to each
NAME: HPW170010
PAGE 129
3095 other, or were they independent of each other?
3096
Mr. LEIGHTON. Not directly related to each other, Mr.
3097
Chairman. They both came out of thsi series of informal
3098
meetings that we have had, that we had. We believe that the
3099
letter from Governor Reagan sort of crystalized some of the
3100
main issues as far as he was concerned. This one
3101
crystalized a lot more from our point of view.
3102
But it is a dynamic situation. They crossed, actually
3103
this was telephoned to somebody and later mailed to them.
3104
Sort of crossed in the transmittals.
3105
Mr. LEVITAS. All right. Well, as I said, the
3106
significance to me at this point in time of this letter is
3107
the fact that it may have had an effect of raising
3108
expectations within PATCO for a type of contract that might
3109
be negotiated with the new Administration, and those hopes
3110
or expectations obviously, at least as you see them, were
3111
not fulfilled.
3112
Again, as far as I am concerned that is all irrelevant to
3113
the fact of whether you should strike or not. The answer to
3114
that is, it is illegal. You ought to obey the law and not
3115
strike.
3116
Mr. McEwen, you seem to be the sole survivor on the
3117
Republican side, so I will recognize you.
3118
Mr. MCEWEN. Thank you, Mr. Chairman.
3119
I just have one question remaining from our discussions
NAME: HPW170010
PAGE 130
3120 this morning, Mr. Poli. That is that you have shared with
3121
us repeatedly that you have no desire to strike. Yet, we
3122
are aware and have had discussion this morning about the
3123
special fund that was established by PATCO in 1979 to
3124
support the job action which PATCO was prepared to undertake
3125
in 1981. I just cannot help but find that very ironic, that
3126
these dates would all fall together here before our very
3127
eyes precipitously, and yet you really don't want to
3128
implement the program which you prepared for lo these two
3129
years.
3130
Mr. POLI. Mr. McEwen, I think that if you would look at
3131
the resolutions as passed by our membership that it doesn't
3132
say 1981, sir. The plan itself is a: subsistence plan. We
3133
have had controllers, one controller who was involved in
3134
accusations by the FAA. He was later exonerated of those
3135
charges, suspended for a certain period of time, and drew
3136
monies out of the fund.
3137
Other than that, the fund still remains in existence.
3138
There was also an unfair labor practice, sir, filed against
3139
us by the FAA for having a strike fund, which we were
3140
exonerated of in front of the Federal Labor Relations Board.
3141
Mr. MCEWEN. Those are my questions, Mr. Chairman. Thank
3142
you.
3143
Mr. LEVITAS. Thank you, Mr. McEwen. MR. ROEMER
ROEMER
3144
Mr. MCEWEN. Yes, thank you, Mr. Chairman.
NAME: HPW170010
PAGE 131
3145
I just want to return briefly to this letter that is
3146
before us. Frankly, I am going to leave it to a more astute
3147
legal mind than mine to explore the legal ramifacations of
3148
it. But I find it an incredible letter. Let me just ask
3149
you a couple of questions that might lead up to the writing
3150
of this letter.
3151
Did PATCO endorse Ronald Reagan when he was a candidate
3152
for President?
3153
Mr. POLI. Yes sir, we did.
3154
Mr. ROEMER. Did you endorse him because of this letter,
3155
as a result of the conversations pointed out?
3156
Mr. POLI. We endorsed Ronald Reagan for President of the
3157
United States because we felt in conversations with the then
3158
Governor of California, the conversations that subsequently
3159
took place with members of his staff, that he was much more
3160
sympathetic to the problems of the air traffic controllers
3161
than the other candidate, because we couldn't even talk to
3162
him. We were rejected. Not rejected, but we never got eh
3163
opportunity to talk, although requests were made by us to
3164
talk to the candidate.
3165
I would not say that the endorsement of Governor Reagan
3166
was specifically over this letter. No, I would not.
3167
Mr. ROEMER. Would you have endorsed Reagan as candicate
3168
for President of the United States if he had not made the
3169
agreement to you verbally that are mde in writing here?
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PAGE 132
3170
Mr. POLI. Yes, I would.
3171
Mr. ROEMER. So you see no relation between this letter
3172
and your endorsement of Governor Reagan?
3173
Mr. POLI. Well, I see a relationship in that it
3174
established an understanding of things that we had
3175
discussed, so that there would be no misunderstandings in
3176
the future. However, I think it jus solidified our
3177
understanding. But if the memo was not forthcoming, we
3178
would have still endorsed Governor Reagan just from the
3179
conversations that I had with him about our problems.
3180
Mr. ROEMER. I can understand completely, Mr. Poli, your
3181
desire not to put a quid pro quo between the letter and
3182
endorsement of a man running for the President of the United
3183
States, because at the very least, it is a raw political
3184
deal. And at the very worst, it violates some criminal laws
3185
in this country, which I am sure other members of this
3186
committee will explore. I will not get into that. But I am
3187
sympathetic with your unwillingness and uneasiness about the
3188
quid pro quo of this kind of deal, because it is just that,
3189
isn't it?
3190
Mr. POLI. No sir, I do not believe so. I feel that,
3191
first of all, I expressed earlier this morning that I do not
3192
believe that the President of the United States has been
3193
completely briefed on what is happening in this situation.
3194
I didn't consider it a deal. In no way were any promises of
NAME: HPW170010
PAGE 133
3195 any significant nature made to our organization.
3196
We talked with someone who was sympathetic toward our
3197
organization. Extended a feeling of understanding to the
3198
necessity of safety of air traffic controllers in this
3199
country. And I felt bound to report that to my membership--
3200
an executive board--and they were encouraged, and we
3201
supported Governor Reagan for President.
3202
Mr. ROEMER. Well, I find the document replete with
3203
promises. Replete, paragraph after paragraph, page after
3204
page. There is a lot I don't know either about the law or
3205
about politics. But I made my living for years being the
3206
campaign manager for people who are now in the Congress and
3207
who I happily served with. And I know that in that role, if
3208
a man I worked for or a woman who was running for an office
3209
such as this, had suggested that we make this kind of deal,
3210
we would have scrubbed the mission at that point, because no
3211
matter how you measure it or test it, there is a deal in
3212
these three or four pages and it borders on criminal neglect
3213
of somebody in campaign management team of Ronald Reagan.
3214
As I said earlier, I am sympathetic to your uneasiness
3215
here. I share it. J don't like it. I don't want to even
3216
talk about it. It doesn't make me feel good, but it is
3217
there, and it is in writing.
3218
Thank you, Mr. Chairman.
3219
Mr. POLI. Mr. Roemer, If I could just speak to you for a
NAME: HPW170010
PAGE 134
3220 second.
3221
Mr. ROEMER. Sure.
3222
Mr. POLI. I want to make it very clear to the committee
3223
that I am not uneasy about it, sir. I feel that the
3224
question was asked by Mr. Oberstar, as were there any other
3225
papers or documents involved. I appear under oath and I
3226
felt obligated to provide it to the committee. But
3227
certainly I am not embarrassed by the memorandum, or the
3228
letter at all.
3229
Mr. ROEMER. Well, I hope that when the hearing is
3230
concluded today, you have the same sanguine feeling of
3231
unembarrassment, because when the law is read about these
3232
matters, you will find that mroe competent people than I
3233
might have judged this letter in violation of the law.
3234
Mr. LEVITAS. Thank you, Mr. Roemer.
3235
Mr. Stangeland.
3236
Mr. STANGELAND. Just so that I have a better
3237
understanding of the situation in a tower with an air
3238
traffic controller, Mr. Poli, just a few brief questions.
3239
Let's take National here because it is a very busy
3240
airport. A controller comes on duty at 8 o'clock in the
3241
morning. How many controllers are in that room or in close
3242
proximity?
3243
Mr. POLI. I can give you an exact answer, sir. One
3244
second. In the radar room and in the tower there would be
NAME: HPW170010
PAGE 135
3245 approximately 22 in Washington National, up and down. In
3246
the radar room and in the tower. Supervisors and trainees
3247
and controllers.
3248
Mr. STANGELAND. At any one time one controller is looking
3249
at that screen and seeing where all those planes are and
3250
making sure that there is air space between every airplane?
3251
Mr. POLI. Th airplanes in the radar room, yes sir.
3252
Mr. STANGELAND. Would there be one man in charge of that
3253
or would there be more than one man in charge of that?
3254
Mr. POLI. In the area, radar areas surrounding the
3255
Washington tower would be divided into arrival controllers,
3256
departure controllers. They would be responsible for that
3257
particular segment of air space.
3258
Mr. STANGELAND. How long would one man sit and do that
3259
without getting up and stretching, because those planes come
3260
in there just constantly, what, every three, four minutes,
3261
maybe less?
3262
Mr. POLI. We try to make sure that no one does it for any
3263
more than two hours at a time.
3264
Mr. STANGELAND. Two hours at a time. Then he gets a
3265
relief and takes another job, another responsibility ro a
3266
while?
3267
Mr. POLI. He can take another job or another
3268
responsibility, or possibly they get a basic.
3269
Mr. STANGELAND. I just want to make this point and make
NAME: HPW170010
PAGE 136
3270 it very carefully and clearly. I think you are aware of the
3271
felling of most of the committee as far as illegal acition
3272
and a strike?
3273
Mr. POLI. Yes sir.
3274
Mr. STANGELAND. We have very little sympathy for that.
3275
The FAA has said that they are going to be firm, maybe even
3276
more than firm. The Justice Department has said that they
3277
are going to be firm. The judge dealing with the Air
3278
Transportation Association required those people to confirm
3279
that in another walkout that they would be seeking damages.
3280
And they agree that they would seek damages. So you know,
3281
there is just so little, there is only one thing that is
3282
going to come about as a result of the walkout. You and our
3283
people are going to lose. You are just going to lose.
3284
Not only that, but you are going to lose in the public's
3285
eye in the image, public relations. And you are going to
3286
lose the possibility of some of us in Congress who want to
3287
be fair because I fly every weekend and I appreciate a good
3288
air traffic controller. And we want to be fair, but you
3289
will pout us in a situation where you just cause your
3290
association and your workers to lose.
3291
You know, somebody said that the only illegal strike is
3292
the unsuccessful one. This strike is going to unsuccessful
3293
in every way, every shape and form, and I just hope that you
3294
have that in mind and that your controllers have that in