MEMORANDA TO COMMISSION FROM COMMISSIONER PHILIP ELMAN, DATED JANUARY 14, 1969, AND MAY 2, 1969, RE REORGANIZATION PLAN NO. 8 OF 1950: COMMISSION APPROVAL OF APPOINTMENTS OF HEADS OF MAJOR ADMINISTRATIVE UNITS Subject: Reorganization Plan No. 8 of 1950: Commission Approval of Appointments of Heads of Major Administrative Units To: The Commission. From: Philip Elman. JANUARY 14, 1969. Reorganization Plan No. 8 of 1950 (15 F.R. 3175, 64 Stat. 1264) provides that "The appointment by the Chairman of the heads of major administrative units of the Commission shall be subject to the approval of the Commission." (Sec. (b) (2).) I move that the Commission determine that the following positions are subject to the approval of the Commission under Reorganization Plan No. 8: (1) Secretary. (a) Assistant Secretary for Minutes. (b) Assistant Secretary for Legal and Public Records. (2) Program Review Officer. (3) Executive Director. (a) Assistant Executive Director. (4) Director, Office of Information. (5) Director, Office of Administration. (a) Director of Personnel. (b) Management Officer. (6) Comptroller. (7) General Counsel. (a) Assistant General Counsel for Appeals. (b) Assistant General Counsel for Consent Orders. (c) Assistant General Counsel for Legislation. (d) Assistant General Counsel for Export Trade. (e) Assistant General Counsel for Federal-State Cooperation. (8) Chief Hearing Examiner. (9) Director, Bureau of Deceptive Practices. (a) Assistant Director. (b) Chief, Truth-in-Lending Section. (c) Chief, Screening & Planning Section. (d) Chief, Division of Compliance. (e) Chief, Division of Food and Drug Advertising. (f) Chief, Division of General Practices. (g) Chief, Division of Scientific Opinions. (h) Chief, Division of Special Projects. (10) Director, Bureau of Economics. (a) Assistant Director. (b) Chief, Division of Economic Evidence. (11) Director, Bureau of Field Operations. (a) Assistant Director for Deceptive Practices. (12) Director, Bureau of Industry Guidance. (a) Assistant Director. (b) Chief, Division of Advisory Opinions. (d) Chief, Division of Trade Regulation Rules. (13) Director, Bureau of Restraint of Trade. (a) Assistant Director. (b) Chief, Division of Accounting. (c) Chief, Division of Compliance. (d) Chief, Division of Discriminatory Practices. (e) Chief, Division of General Trade Restraints. (f) Chief, Division of Mergers. (14) Director, Bureau of Textiles and Furs. (a) Assistant Director. (b) Chief, Division of Enforcement. (c) Chief, Division of Regulation. I further move that the Commission proceed to determine whether the appointment by the Chairman of the present incumbents of the above positions has the approval of the Commission. MAY 2, 1969. Subject: Reorganization Plan No. 8 of 1950: Commission Approval of Appointments of Heads of Major Administrative Units To: The Commission. From: Philip Elman. On January 31, 1969, the Commission, with Chairman Dixon voting in the negative and Commissioner MacIntyre abstaining, determined that appointments to certain staff positions are subject to approval of the Commission under Reorganization Plan No. 8 of 1950. The Chairman stated on the minutes that he would not abide by that determination, and I understand that he publicly testified to that effect in his appearance before the Senate Government Operations Committee on April 24. I learned from Mr. Delaney this morning that the Chairman has written letters to the Civil Service Commission requesting approval of certain appointments he has made to positions covered by the Commission's determination of January 31, 1969. Mr. Delaney also informed me that the letters to the Civil Service Commission refer to the Commission's action on that date. I do not know what information other members of the Commission have on this subject, but before this morning I was entirely unaware either that any appointments had been made by the Chairman or that he had taken any action regarding them. It seems to me that the other members of the Commission should at least be furnished with copies of the Chairman's letters to the Civil Service Commission. If, as the Chairman believes, the Commission's action on January 31, 1969, was ultra vires and illegal, and if that legal question has now been submitted to the Civil Service Commission, the legal arguments in support of the majority's position should also be submitted to the Civil Service Commission. Accordingly, I move that (1) copies of the letters (and any accompanying papers or memoranda which have been or will be sent to the Civil Service Commission bearing on this matter) be circulated to all the members of the Commission; and (2) the General Counsel be directed to prepare expeditiously a memorandum of law supporting the Commission's determination of January 31, 1969. MEMORANDUM TO COMMISSION FROM GENERAL COUNSEL DATED MAY 29, 1969, RE "HEADS OF MAJOR ADMINISTRATIVE UNITS" AS CONTEMPLATED BY REORGANIZATION PLAN No. 8 of 1950 MEMORANDUM Subject: "Heads of major administrative units" as contemplated by Reorganization Plan No. 8 of 1950 To: Commission. From: General Counsel. MAY 29, 1969. In an action taken on January 31, 1969, the Commission, by a vote of three to one and one abstention, determined that the occupants of a total of sixty-three staff positions henceforth should be regarded as "heads of major administrative units," as that phrase is utilized in Section (1) (b) (2) of Reorganization Plan No. 8 of 1950. The increase from eleven to sixty-three in the number of employees so designated is due principally to the inclusion in the list of all Assistant General Counsels, Assistant Bureau Directors, Division Chiefs, and Attorneys in Charge of Field Offices, none of whom in the past has been included in this category. The significance of the action lies in the fact that under Section (1) (b) (2) of Reorganization Plan No. 8, "The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission." The question is whether the Commission's action purporting to determine the positions in its organizational structure to which this provision of the Plan applies was within the Commission's authority. The answer, while not given categorically, is to be found in the legislative history of the Plan.' The legislative history of Reorganization Plan No. 8 is closely tied to that of Plans Nos. 7, 9 and 11 for other regulatory agencies, all of which were before the Congress at or around the same time. The reports of the Congressional Committees considering these plans did not attempt to define the phrase "heads of major administrative units" as used in the plans, or to indicate whose responsibility it would be to determine the administrative units in the agency to be included in this category. The only discussion of these points in the legislative history took place during Senate debate on Reorganization Plan No. 7 for the Interstate Commerce Commission. This occurred in an exchange between proponents of reorganization, Senator Humphrey and Senator Douglas. Following explanation that Chairmen were to have control over “procedural" matters, but not over "substantive" matters, Senator Humphrey stated that "*** where 1 No reported cases have been found in which the phrase "major administrative units" as used in Reorganization Plan No. 8 has been considered. In view of the fact that the term does not have any precise, well-recognized meaning, but will, on the contrary, vary in its application, as the circumstances require, we must "[i]n aid of the process of construction have recourse to the legislative history of the measure and the statements by those in charge of it during its consideration by the Congress." United States v. Great Northern Ry., 287 U.S. 144, 154 (1932). Plans Nos. 7, 8, 9 and 11 of 1950, relating to the Interstate Commerce Commission, the Federal Trade Commission, the Federal Power Commission, and the Federal Communications Commission, used identical language in proposing new authority to the Chairmen of the respective Commissions (Hearings before the Senate Committee on Expenditures in the Executive Departments on S. Res. 253, 254, 255 and 256, 81st Cong., 2d Sess., April 24-26, 1950, pp. 5-8). Senator Humphrey acted as floor leader for the opponents to S. Res. 253, disfavoring Reorganization Plan No. 7 (96 Cong. Rec. 7155), and together with Senator Douglas, voted against each of the resolutions disfavoring these reorganization plans (96 Cong. Rec. 7173, 7177, 7375, 7383). "If resort to legislative history is had, the statements of those who supported the legislation and secured its passage will be accepted in determining its meaning." Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008, 1012 (7th Cir. 1951), cert. denied, 342 U.S. 815 (1951). there is a conflict as between what is procedural and what is substantive, it is my interpretation that the vote of the Commission as a whole will overrule the administrative decision of the Chairman." Concerning the phrase "heads of major administrative units" and the roles of the Commissions and the Chairmen in the appointment of these employees, the discussion was as follows (96 Cong. Rec. 7164; emphasis added): Mr. DOUGLAS. Will the Senator from Minnesota give his interpretation of the following: Is the appointment of heads of major administrative units a procedural matter or a substantive matter? Mr. HUMPHREY. I wish to say to the Senator from Illinois that the question has been brought up for considerable study, and it was brought up in the form of questioning at the time of the hearings. It is my interpretation that these reorganization plans affecting regulatory agencies mean that the commission or agency as a whole shall have a voice in the appointment, in the promotion, or in the demotion of the heads of major administrative units and in that connection, the word “heads” is used in a plural sense. That is to say, the Commission would have a voice in the selection of and in the assignment of duties for bureau chiefs, assistant bureau chiefs, division chiefs, or chiefs of similar administrative units. I want that point made crystal clear, because I am sure there is a great deal of misunderstanding about the powers of the Commission as compared to the powers of the administrative head or of the Chairman of the Commission. Mr. DOUGLAS. In other words, we are not creating administrative czars? Mr. HUMPHREY. Certainly we are not. What we are attempting to do is to expedite the work of the Commission. If every single commissioner is going to be engaged in a great deal of administrative detail, in the signing of all kinds of documents and in the processing of innumerable papers, and is going to be involved in all manner of personnel relationships, insofar as they are routine, that will bog down the quasi-judicial and quasi-legislative functioning of the Commission. The report of the task force and of the Hoover Commission itself indicated the desirability of having a chairman who had such administrative powers, and to relieve the other commissioners of them. Mr. DOUGLAS. But am I correct in concluding that this power is not to be used as a cloak behind which the Chairman of the Commission can take over the disciplining of the staff and the determination of the policies of the Commission? Is it true that the Commission is ultimately to be responsible for the delegation of work and for the major policies to be followed, not only in the final determination of issues, but in the investigation and processing of complaints and requests; is that correct? Mr. HUMPHREY. The Senator from Illinois has stated the matter very accurately. When the words which are used tell me that the Commission as a whole shall make the determinations of policy and the policy decisions, that is the fact; and then the Chairman of the Commission shall be left to carry out, if you please, the determinations of policy and the other procedures involving policy which have been prescribed by the Commission. Mr. DOUGLAS. I thank the Senator from Minnesota. I hope this record in the debate will be taken to heart by the chairman of the various administrative bodies and will be authoritative legislative history, with the understanding that it applies not only to Reorganization Plan No. 7, but to all the other reorganization plans affecting regulatory agencies. The "questioning at the time of the hearings" alluded to by Senator Humphrey (concerning the appointments of heads of major administrative units under the reorganization plans) apparently occurred when James F. Rowe, a former member of the Hoover Commission, appeared before the Senate Committee in favor of the reorganization plans. Following agreement by Senator Schoeppel and Mr. Rowe that the Chairman's new authority would not permit him to hire and fire hearing examiners, Mr. Rowe directed the Senator's attention to the plans' express reservation to the full Commission of the right to make general policy. And it is by this means, Mr. Rowe said, that the Commission as a whole can preclude the Chairman from the exercise of his own will, regardless of the wishes of the other Commissioners, with respect to the appointment and supervision of employees generally. Senator SCHOEPPEL. That is the thing I want to be very sure about, because I am trying to maintain an open mind on this situation. I |