B-126663, JUN. 12, 1969

B-126663, JUN. 12, 1969

TO MR. CHAIRMAN:

WE REFER TO YOUR LETTER OF MAY 14, 1969, WITH ENCLOSURES, REQUESTING OUR CONSIDERATION AND COMMENTS CONCERNING THE LEGAL PROPRIETY OF PROPOSED REVISIONS TO PART B (AFFIDAVIT AS TO SUBVERSIVE ACTIVITY AND AFFILIATION) AND PART C (AFFIDAVIT AS TO STRIKING AGAINST THE FEDERAL GOVERNMENT) OF STANDARD FORM 61.

THE REVISED PARTS B AND C WOULD READ AS FOLLOWS:

PART B -- AFFIDAVIT AS TO SUBVERSIVE ACTIVITY AND AFFILIATION

SECTION 7311 OF TITLE 5 OF THE U.S.C. READS IN PERTINENT PART AS FOLLOWS:

"AN INDIVIDUAL MAY NOT ACCEPT OR HOLD A POSITION IN THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IF HE --

(1) ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT;

(2) IS A MEMBER OF AN ORGANIZATION THAT HE KNOWS ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT; * * *"

THE WORD "ADVOCATES," AS USED IN SUBPARAGRAPH (1) AND (2) ABOVE, IS LIMITED IN MEANING TO THE URGING OF OTHERS TO ENGAGE IN ACTION FOR THE SPECIFIC PURPOSE OF ACCOMPLISHING THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT BY FORCE OR VIOLENCE.

MEMBERSHIP IN AN ORGANIZATION, AS USED IN SUBPARAGRAPH (2) ABOVE, MEANS BEING A MEMBER OF AN ORGANIZATION (A) WITH KNOWLEDGE THAT THE ORGANIZATION URGES OTHERS TO ENGAGE IN ACTION FOR THE SPECIFIC PURPOSE OF ACCOMPLISHING THE VIOLENT OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNEMNT AND (B) WITH THE INTENT TO ACCOMPLISH THE VIOLENT OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT.

HAVING READ THE FOREGOING, I SWEAR (OR AFFIRM) THAT MY ACCEPTANCE AND HOLDING OF THE POSITION TO WHICH I AM APPOINTED DOES NOT AND WILL NOT VIOLATE SECTION 7311 OF TITLE 5 OF THE UNITED STATES CODE. PART C - AFFIDAVIT AS TO STRIKING AGAINST THE FEDERAL GOVERNMENT

"I AM NOT PARTICIPATING IN ANY STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF, AND I WILL NOT SO PARTICIPATE WHILE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF. I DO NOT AND WILL NOT ASSERT THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF WHILE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF. I DO FURTHER SWEAR (OR AFFIRM) THAT I AM NOT KNOWINGLY A MEMBER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES THAT ASSERTS THE RIGHT TO STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF AND I WILL NOT, WHILE AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF, KNOWINGLY BECOME A MEMBER OF SUCH AN ORGANIZATION.'

THE WORDS "ASSERT" AND "ASSERTS," AS USED IN THIS PARAGRAPH, ARE LIMITED IN MEANING TO THE URGING OF OTHERS TO ENGAGE IN ACTION IN VIOLATION OF THE STATUTORY PROHIBITION AGAINST STRIKING (5 U.S.C. 7311). THESE WORDS DO NOT PROHIBIT EXPRESSING AN OPINION ON THE MODIFICATION OF, OR ACTING LAWFULLY TO MODIFY, THE STATUTORY PROHIBITION AGAINST STRIKING. YOU INDICATE THAT BASED UPON THE JUDICIAL PRECEDENTS CITED IN THE ENCLOSURES TO YOUR LETTER THERE IS CONSIDERABLE DOUBT THE AFFIDAVITS IN THEIR PRESENT FORM ARE CONSTITUTIONALLY SOUND (HASKETT V. WASHINGTON, 294 F.SUPP. 912; ELFBRANT V RUSSELL, 384 U.S. 11; KEYISHIAN ET AL. V. BOARD OF REGENTS, 385 U.S. 589; ROGOFF V. ANDERSON, NO. 8848/68, DECIDED BY THE SUPREME COURT OF THE STATE OF NEW YORK ON NOVEMBER 15, 1968. WE UNDERSTAND THAT THE PROPOSED REVISIONS WERE WORKED OUT BY THE CIVIL SERVICE COMMISSION IN COOPERATION WITH THE DEPARTMENT OF JUSTICE, THE SUBCOMMITTEE ON INTERNAL SECURITY OF THE SENATE COMMITTEE ON THE JUDICIARY AND THE HOUSE COMMITTEE ON INTERNAL SECURITY IN AN ATTEMPT TO SALVAGE AS MUCH OF THE AFFIDAVITS IN QUESTION AS IS CONSTITUTIONALLY PERMISSIBLE.

SINCE THE DATE OF YOUR SUBMISSION THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HELD IN THE CASE STEWART V. WASHINGTON ET AL., JUNE 4, 1969, CIVIL ACTION NO. 202-69, THAT A FORM OF AFFIDAVIT COVERING SUBVERSIVE ACTIVITY AND AFFILIATION SIMILAR TO THAT YOU NOW PROPOSE DOES NOT CURE THE UNCONSTITUTIONALITY OF THE STATUTE. WE UNDERSTAND THAT IT IS CONTEMPLATED THAT SUCH RULING WILL BE APPEALED BY THE GOVERNMENT TO THE SUPREME COURT OF THE UNITED STATES.

IN THE CIRCUMSTANCES OUR OFFICE WILL OFFER NO OBJECTION TO ISSUANCE OF THE PROPOSED REVISIONS. WE ASSUME, HOWEVER, IN THAT REGARD THAT SHOULD THE CIVIL SERVICE COMMISSION DECIDE TO GO AHEAD WITH THE REVISIONS IT WILL DO SO ONLY WITH CONCURRENCE OF THE OTHER PARTIES WHO COOPERATED WITH THE COMMISSION ON THE REVISIONS.