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tive details and permitting them to devote their time more fully to problems of regulation.
That this principle is sound is indicated by the fact that some of the Commissions have already experimented with various delegations of administration and have become convinced of the merits of the arrangement. Concerning this point, the Commission on Organization reported that:
Those cases where administration has been distinctly superior are cases where the administrative as distinguished from regulatory duties have been vested in the Chairman.
Thus, as the President stated in his message transmitting these plans to the Congress,
The proposals contained in these reorganization plans are not new The effect of these plans is to extend uniformly to all Commissions a pattern of organization demonstrated by experience to be successful.
At present, the 11 members of the Interstate Commerce Commission have organized themselves into five Divisions, each composed of three or more Commissioners, with each Division dealing with certain types of matters. The Bureaus of the Commission report to the Divisions primarily concerned with their work. In addition, one Commissioner is designated as the reporting Commissioner for each Bureau. Division 1 is concerned primarily with administrative problems. The Chairman is ex officio a member of Division 1 and serves as the reporting Commissioner for the Bureau of Administration. Thus, already in the ICC the Chairman is the principal Commissioner responsible for matters of administration.
Under Reorganization Plan No. 7, there is made possible a greater centering on the Chairman of responsibility for day-to-day administration. The other Commissioners may be relieved from concern with administration and devote more fully their time to policy and regulatory matters. Moreover, there will be a greater opportunity to coordinate more closely through the Chairman the administration of all the Bureaus.
Reorganization Plan No. 7 also transfers to the President from the Commission the function of designating the Chairman of the Commission. The President now designates the Chairmen of the Federal Communications Commission, the National Labor Relations Board, and the Civil Aeronautics Board. Under the provision of Reorganization Plan No. 7, and similar provisions in some of the other plans relating to regulatory Commissions, the President will uniformly make such designations. The Commission on Organization itself took no position on this issue. The task force of the Commission, which studied the regulatory Commissions, however, recommended:
The Chairman of each Commission should be designated by the President. In support of this proposal, the task force stated:
This will facilitate communication between the President and the Commission on matters of mutual concern and assist in cordination with the rest of the Government without impairing the independence of the Commission. It will also promote more effective internal administration of the Commission. Since the President now designates some Chairmen and does not designate others, and since Presidential designation has these advantages pointed out by the task force, Presidential designation of Chairmen is being provided in all cases.
In my judgment, there is no basis for fear that plan No. 7 will disturb the separation of the prosecution and judicial functions of the Commission. This plan affects administrative matters only and modifies in no way the substantive functions of the Commission. Nor does the plan affect the quasi-judicial proceedings of the Commission. The separation of responsibilities in quasi-judicial proceedings as provided under the Administrative Procedure Act, would fully apply. This act contains three specific protections against the commingling of the so-called prosecutor and judge functions.
1. It provides for an internal separation of these two responsibilities so that the same individual cannot exercise both functions (sec. 5c).
2. It provides that no one who has participated in the prosecution of a case shall participate in or even advise in the decision of the regulatory Commission or the hearing examiner (sec. 5c).
3. It provides that the hearing examiners, and the Commissions when hearing cases on appeal, must make the decision in each case solely from the evidence, briefs, and oral arguments submitted on the record in connection with the quasi-judicial proceedings (sec 7d).
The functions transferred by plan No. 7 in no wise relate to this area of activity or upset these safeguards for the separation of responsibilities.
Since these safeguards remain, there is no danger that the Chairman will become both prosecutor and judge. On the contrary, the Chairman will participate in the initiation of cases only to the degree and extent that the Commission authorizes him to do so. In the initiation
of cases, as in the exercise of other responsibilities, he will be "governed by general policies of the Commission and by such regulatory decisions, findings, and determinations as the Commission may by law be authorized to make." Thus, under this provision in plan No. 7, the Commission will have authority to determine the policies governing the initiation of cases, and the Chairman will supervise the Commission's staff to assure that the policies of the Commission are carried out.
Furthermore, I see no grounds for concern that the Chairman will exercise undue administrative control over the hearing examiners under these plans. Section 11 of the Administrative Procedure Act gives the Civil Service Commission special controls over the examiners, and the Civil Service Commission has a special procedure to assure all safeguards in appointments. Once appointed, the examiners may be removed only for good cause, established and determined by the Civil Service Commission. The examiners receive compensation determined by the Civil Service Commission, which also has control over their promotions. The appointment of the chief hearing examiner by the Chairman would be subject to the approval of the Commission. The chief examiner himself has no power of control or influence over the decisions of the hearing examiners. Likewise, even in the assignment of individual examiners to cases he has little control, since the Administrative Procedure Act requires that they be assigned on a regular rotation basis. In short, the status of hearing examiners will remain exactly as at present.
Mr. HOLIFIELD. Would you pause there and explain this: Why was not the same exclusive clause put in this act as was put in the acts from 1 to 6 in regard to hearing examiners?
Mr. STAUFFACHER. Mr. Congressman, there is a basic difference in 1 to 6 and these plans. In plans 1 to 6, all of the functions, both substantive and executive and administrative, were transferred; and, in plans 7 to 13, that was not the case. The substantive functions, as I have pointed out here, remained where they now are.
Now, I have a letter here from the Attorney General, prepared in response to a question that came up under plan 12, that I think is pertinent, if I could read just one sentence of it for the record.
Mr. HOLIFIELD. Would it be germane to put that complete letter in the record?
Mr. STAUFFACHER. It goes largely to matters that are solely the question of the relation of the General Counsel and the Chairman in the NLRB, but the concluding point was, if I could read this:
It is clear that the plan transfers from the General Counsel and the Board to the Chairman housekeeping functions and related functions of a supervisory nature. It is equally clear that it is the purpose of the plan, as described in the afore-mentioned message of the President, to establish between the Board and the Chairman the "identical relationship" as that provided for the other regulatory agencies, which means that substantive decisions are the responsibility of the Board as a whole and not of the Chairman individually.
That is the opinion of the Attorney General, who I am sure you gentlemen know is involved in the preparation of all of these plans. Mr. HOLIFIELD. That applies to plan No. 7?
Mr. STAUFFACHER. It applies to all of the plans.
Mr. HOLIFIELD. And, in your opinion, this does not weaken the Administrative Procedure Act in any way?
Mr. STAUFFACHER. No, sir.
Mr. HOLIFIELD. It is protected there?
Mr. STAUFFACHER. The whole point of the Administrative Procedure Act is to make the hearing examiners independent. Now, they are just as independent of the Chairman as they were of the Commission, and it would be a violation of the Administrative Procedure Act to have them in any way dependent on the Commission, because hearing examiners are found throughout the Government in executive agencies as well as in boards and commissions.
Mr. HOLIFIELD. Will you comment on this agreement between the ICC and the Civil Service Commission? There was fear expressed that that agreement might be abrogated by the Chairman.
Mr. STAUFFACHER. I reviewed the testimony that was given last evening, and was in some doubt as to what was meant. The situation, as I understand it, is this: that in the ICC, as in other agencies, the Ramspeck Act took the lawyers out from under civil service, so that lawyers are not under civil service in the ICC any more than they are in any other agency. But all other employees of the Interstate Commerce Commission are under civil service. They are not under that by agreement between the Chairman and the Civil Service Commission; they are under it by an Executive order of the President, who is the only official empowered to include agencies under the civil-service system.
Mr. HOLIFIELD. The civil-service status of the employees of the ICC does not depend upon agreement, as has been stated, but depends upon an Executive order?
Mr. STAUFFACHER. That is my understanding.
Mr. HOLIFIELD. I am glad to have that point cleared up, because it has been repeatedly made here by the opponents of this plan that such civil-service status as exists could be abrogated by the Chairman.
Now, I am strictly of the opinion that it cannot be done because of the Chairman's subordination to subsection (b), which gives the Commission that substantive power.
Mr. STAUFFACHER. I would believe that a matter of such importance as whether employees were to be under civil service or not under civil service would certainly be a matter of policy that would be for the Commission to decide, under this plan. I say that without any hesitation. But I tried to check into the matter this morning, because I did not know whether they were speaking about examiners. As I read the testimony, they were speaking about examiners, not trial examiners but other examiners who work in the Commission. Now, a man is classified as an examiner whether one of his qualifications, or not, be that he is a lawyer; he is as much under civil service whether by professional training he is a lawyer. That is not germane. It is only if the position is qualified or classified as a lawyer that it is or it is not under civil service.
Mr. DONOHUE. Who determines whether or not a person is rightfully before the Interstate Commerce Commission? In other words, is it whether or not he has a case that should be heard by the Interstate Commerce Commission?
Mr. STAUFFACHER. Well, sir, the procedure, as I understand it, is that an individual, in accordance with the law, would make his case, and it would be referred under the regulations and rules of the Commission, as provided, to one of the divisions and scheduled for hearing. A hearing examiner would hear the case and would forward his report up through the proper channels. It would eventually come to the attention of the division.
Now, the reason that the ICC has not used boards of employees or individual Commissioners to dispose finally of cases is because section 17 provides that an appeal can be taken from the decision of either a board of employees or an individual Commissioner, merely by the filing of the person whose case was not granted; whereas that cannot be done in the case of the division.
Mr. DONOHUE. What I have in mind, is how you would differentiate between the NLRB, where the general counsel now determines whether or not there is basis for a complaint
Mr. STAUFFACHER. That is in the Commission, sir.
Mr. HOLIFIELD. That is a specific provision which is at variance with every regulatory commission that I'know of.
Mr. DONOHUE. In the NLRB, then, you have a merging of the judicial and the prosecution, have you not?
Mr. STAUFFACHER. Well, sir, you get into your two different kinds of cases there. But we have contended, as you know, in our testimony on the plan No. 12, that you would have more of the judgment of a group of men as to whether or not a case should be heard, if the plan was approved, than as it stands at present.
Mr. DONOHUE. Under the NLRB, the functions of the General Counsel are not transferred to the Board?
Mr. STAUFFACHER. Oh, yes.
Mr. DONOHUE. They are transferred to the Chairman of the Board. Mr. STAUFFACHER. Well, sir, if I could leave this just a moment, in legal theory and certainly in the testimony on the plan and in the President's message, the transfer in the NLRB message is a two-step transfer. First of all, the functions of the general counsel are transferred in toto to the Board; and secondly, only so much of those functions as is pertinent to the role of the Chairman as exercising executive and administrative functions generally, is then transferred to the Chairman, and the remainder of it stays in the Board.
One of the things which would stay in the Board is this question of what kind of cases you hear. The Department of Justice and the Attorney General's letter is specific on that point. Actually, that was the point to which this opinion of the Attorney General that I just read was addressed.
Mr. DONOHUE. Do I understand, Mr. Holifield, you have asked for that letter to be made a part of the record?
Mr. HOLIFIELD. I did not, because he said that most of it applied to the NLRB plan, and he read only the part that was pertinent to this particular plan.
Mr. STAUFFACHER. May I read just this second part of that letter, sir? The letter is from the Attorney General—
Mr. HOLIFIELD. As long as he is reading part of it, I see no reason why, unless you have an objection, it should not be put in the record. Mr. STAUFFACHER. I have no objection to submitting the entire letter for the record, sir; I have none at all. It would be very pertinent, however, to this gentleman's point if I read part of it:
This will reply to your letter of April 1 in which you request a clarification concerning two issues raised in testimony before the Senate Committee on Expenditures. You state that this testimony is to the following effect— and I am reading the second point—
Plan No. 12 transfers all, or virtually all of the functions of the General Counsel of the Board to the Chairman, thus maintaining the existing concentration of powers in a single individual.
That was the allegation that was made, and this is his reply:
Point No. 2 is likewise without merit, in my view. In the language of section 1 (a) of the plan it is provided that the executive and administrative functions of the Board and the General Counsel are transferred to the Chairman of the Board, including their functions with respect to the appointment, supervision of personnel, distribution of business, and the use and expenditure of funds. Section 1 (b) (1) provides that the Chairman, in carrying out those executive and administrative functions, shall be governed by the general policies of the Board.
Here, I think, is the pertinent point:
Section 3 states that all functions of the General Counsel of the Board not transferred by the provisions of section 1 of this reorganization plan are hereby transferred to the Board.
So that, as I say, in legal theory it is a two-step transfer: The executive and administrative functions now residing in the General Counsel going to the Chairman; but the remaining functions, the substantive functions as he says in the later paragraph of his letter, go to the Board and not the Chairman.
Mr. TAURIELLO. Could I ask a question in order to clarify something in my mind?