War Resisters League v. Regional Commissioner of (S.D.N.Y.).

76-0798 (D.D.C.).

73-Civ. 3160 (S.D.N.Y.).

LETTER FROM SENATOR ABOUREZK TO ATTORNEY GENERAL, FEBRUARY 7, 1977: FIRST SET OF QUESTIONS ON S. 2117

At the January 26th hearing on S. 2117 before the Subcommittees on Administrative Practice and Procedure and on Citizens and Shareholder Rights and Interests, Senator Metzenbaum mentioned that I would be submitting written questions to you. Attached are these questions. In order to expedite consideration of this bill I would appreciate your providing me with written answers by Friday, March 3.

GENERAL QUESTIONS BASED ON PREPARED STATEMENT

1. On page 5 of your statement you say that you are "personally agreeable to provisions which would assure effective and fair procedures to discipline an employee who has violated another's constitutional rights, procedures in which the injured person can participate in a meaningful way."

Are you saying that at least an outline of the essentials of

such procedures should be included in this bill?

2. In your statement, you say that "for punishment to be an effective deterrent it must be predictable." (page 4)

Would you, therefore, support a provision in the bill requiring that a disciplinary proceeding automatically be commenced against a federal employee whenever a constitutional tort case involving him is filed against the government?

3. In your statement you say "the possibility of civil damage actions for (honest, law abiding and conscientious civil servants) tends to discourage taking difficult assignments and performing such assignments thoroughly and courageously. Instead, it has the effect of causing otherwise responsible officials to worry about 'covering' themselves. I know this is true in the Justice Department but do not doubt that

it applies in every department and agency of the Federal Government." (page 4).

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a. Please explain why you believe civil servants who are in fact

b.

honest, law-abiding and conscientious have these worries.

If they were assured that they would not have to pay their legal fees, why does the prospect of civil damage actions have any adverse impact on federal employees who are "honest,

law-abiding and conscientious"?

c. Why should the Congress accept the Department's judgment that civil damage actions deter honest civil servants from fearless performance of their duties when the Supreme Court has rejected these very same arguments in refusing to give civil servants absolute immunity?

d. On what basis do you conclude that the personal liability of civil servants "serves no constructive purpose" when the courts have repeatedly ruled that civil servants should be personally liable? (page 3).

e. Is it an unjust ...burden" for a government employee to be held liable for a sizeable judgment in a civil suit" if that employee has intentionally violated the constitutional rights of an individual? (page 1)

f. Isn't it true that civil damage actions do have a deterrent effect on employees who are not honest, law-abiding and conscientious?

g. If it is true that civil damage actions have a deterrent effect

on such employees, isn't it necessary that any bill immizing such employees maintain such deterrence through an alternative accountability procedure?

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ACCOUNTABILITY OF HIGH GOVERNMENT OFFICIALS AND FORMER GOVERNMENT OFFICIALS

1. Is it possible or appropriate for presidential appointees and former

government officials to be subjected to civil service disciplinary
proceedings?

2. Does the Department have any specific alternative system of accountability to recommend for Presidential appointees and former employees in addition to existing accountability mechanisms?

a. If the Department has no recommendation for such an alternative
system for presidential appointees and former employees, how does
the bill provide the "sort of mechanism" you "recognize...should
be established to insure the fair and effective disciplining"
of federal employees"? (page 5).

b. Particularly with respect to presidential appointees, do you
believe passage of the Special Prosecutor bill, now pending in the
House Judiciary Committee, would compensate in part for the immunity
given to Presidential appointees by this bill and if so, should
adoption of the Special Prosecutor bill be a prerequisite to

immunizing Presidential appointees from civil damage actions?