It would seem desirable that the hearing officer in Otepka's case should be as completely impartial as possible. Would it not be feasible for the Department to borrow a qualified trial examiner from some other agency, to serve as hearing officer in this case? This is the procedure the Department followed in connection with the passport appeals of a number of known Communists. Since there was no specific authorization in law for the State Department to employ or borrow trial examiners for those cases, it would seem that the absence of such specific authorization could not well be pleaded as a bar to handling the Otepka case in this way. It might, of course, be possible to provide for this by statute, but it would seem more desirable, under all the circumstances, for such provision to be made by order or regulation of the Secretary of State. Thanks for your consideration of this matter. Sincerely, James O. Eastland, John L. McClellan, Thomas J. Dodd, Sam J. On January 20, 1964, Mr. Otepka again wrote to Mr. Rosen, renewing his request that his case be assigned to an independent hearing officer. Mr. Otepka stated that if his request were denied, he would select Mr. Edward A. Dragon as the hearing officer in his case. Mr. Otepka's letter was acknowledged by Mr. Rosen, February 19, 1964.10 The Department adhered to its position, and Mr. Otepka was advised by letter on July 21, 1964, that Mr. Dragon would be designated as the hearing officer in his case.11 The procedures and other items of agreement were discussed in conference and through exchange of letters between Mr. Dragon, Mr. Roger Robb (Otepka's attorney), and Mr. Richard D. Kearney, Deputy Legal Adviser, Department of State. The parties concerned agreed that the hearing would commence on November 16, 1964.12 The hearing officer indicated, with the consent of both parties, that it would be acceptable to admit into the record the transcript of testimony of various witnesses who appeared before this subcommittee in its State Department Security hearings. Mr. Robb wrote letters to the committee in an effort to determine when the hearing record would be published.13 In response to these inquiries, the subcommittee advised Mr. Robb that there was no way to determine the publishing time of the hearing record. Accordingly Mr. Robb requested, and was granted by the Department several postponements of the hearing on the Otepka appeal. Mr. Crockett commented as follows on the possible remedies available to Mr. Otepka:14 Mr. SOURWINE. Well, you remember the State Department issued a press statement that the Department had upheld the Department's charges against Otepka and that Mr. Otepka would have a right of appeal to the Department from its affirmation of its charges? 10 Ibid., pt. 8, pp. 565–566. State Department Security hearings, pt. 8, p. 566. 12 Ibid., pt. 8, pp. 567-568. 13 Letters from Robb to subcommittee: Oct. 12, 1964; Dec. 12, 1964; Jan. 12, 1965. Replies from subcommittee to Robb: Oct. 14, 1964; Jan. 13, 1965. Letters from Robb to Department requesting postponement: Oct. 15, 1964; Jan. 14, 1965; Feb. 8, 1965; Feb. 26, 1965; Apr. 26, 1965. Letters from Department to Robb granting postponement: Feb. 3 and 12, 1965; May Some requests and responses were made orally of which the subcommittee has no record. 1965. Mr. CROCKETT. Yes, I remember this. Mr. SOURWINE. He still has a further right of appeal to the Department- Mr. SOURWINE (continuing). from its upholdings of its charges. We are just following the regulations. He had a right to appeal for the withdrawal of the charges and that was the first thing that was done. But the State Department upheld its own charges. Secondly, he has a right to appear before a hearing officer. This is the second step. So we are merely following the civil service procedures in this case. Mr. SOURWINE. Do you think he has a right to an impartial hearing officer? Mr. CROCKETT. Certainly. In fact, at any time he can withdraw his case from us and take it to the civil service or wait until he has been heard by the State Department and then take it to civil service. Mr. SOURWINE. Are you implying that he can't have an impartial hearing officer in the State Department? Mr. CROCKETT. Not at all. Not at all. It is my honest opinion that he can have. Mr. SOURWINE. Why shouldn't the Department in this case go at least as far in providing him an impartial hearing officer as it did in providing impartial hearing officers for Communist applicants for passports, by bringing in a trial examiner from some other agency to hear the case? Mr. CROCKETT. It so happened that the regulations were written this way. Mr. SOURWINE. Regulations didn't provide for it in the other case, either, did they? Mr. CROCKETT. Well, the regulations are written this way. We have changed the regulations once for the benefit of Mr. Otepka to keep him on the payroll until the hearing is finally ended. Mr. Crockett further testified that Secretary Rusk is favorably inclined toward the subcommittee's suggestion that the Otepka hearing be conducted entirely outside the Department; however Mr. Crockett indicated he favored a board comprised of three individuals instead of a single trial examiner.15 Mr. SOURWINE. Are you familiar with the letter addressed to the Secretary by all the members of this subcommittee with respect to this matter of a hearing officer for the Otepka hearing? Mr. CROCKETT. Yes, I am, and Mr. SOURWINE. I don't think the committee has received any acknowledgment of it or reply yet. Mr. CROCKETT. That is right. Despite the fact that it is my judgment and the Secretary's judgment that there isn't any question that Mr. Otepka could have a fair and impartial hearing within the State Department, I think the Secretary thought that this was an excellent suggestion by the committee, provided Mr. Otepka himself would agree. Regulations are written one way; and we couldn't force this upon him. Mr. SOURWINE. Has his agreement been sought? Mr. CROCKETT. Not yet, because the letter has not been written, and there is no final determination. Mr. SOURWINE. It is your intention to seek his approval of that procedure? Mr. CROCKETT. It is our intention at this time. The Secretary hasn't signed the letter, so I can't say what the Department's intention is until he has signed it. Mr. SOURWINE. Of course. Mr. CROCKETT. But the letter is being written back to the committee indicating that we will select an outside board to hear the case provided Mr. Otepka agrees to the procedure. Mr. SOURWINE. An outside board or a trial examiner? Mr. SOURWINE. Why not a trial examiner? Mr. CROCKETT. We thought a board of three would even be better. Mr. Robert L. Berry, Chief, Division of Investigations, Office of Security, testified August 17, 1964, with reference to a meeting held about a year previously in Mr. Crockett's office at which time Mr. 15 Ibid., pt. 12, p. 942. Crockett said the Department did plan to continue to pursue the Otepka case. 16 Then came another shift. Mr. Crockett testified that there had been a "change in plans" and that the hearing officer would be selected from the State Department, rather than a hearing officer borrowed from another agency.17 Mr. SOURWINE. Did you tell me that, while it was true that Mr. Ball had decided to adopt the Internal Security Subcommittee's unanimous suggestion, and to have the Otepka hearing presided over by an Administrative Procedure Act (APA) trial examiner borrowed from another agency, and while it was true that you told Senator Dodd this in my presence and had reiterated it to Senator Dodd later, nevertheless there had been a "change in plans" and this would not be done? Mr. CROCKETT. Yes, sir. But in a further check with the Civil Service Commission it was determined that the Department should follow its own regulations which called for a hearing officer selected from the State Department, rather than a hearing examiner borrowed from another agency. Mr. SOURWINE. Did you tell me you thought Mr. Ball had talked with Senator Dodd about this, but that you did not know whether Mr. Ball had told Senator Dodd about the "change in plans"? Mr. CROCKETT. I am not sure, but I certainly could have. Mr. SOURWINE. Did you tell me this "change in plans" was made necessary when Mr. Macy of the Civil Service Commission advised that the Department should not try to borrow a trial examiner, because this exceeded their authority? Mr. CROCKETT. To the best of my recollection the Civil Service Commission did advise against borrowing a trial examiner. The regulations in this type case would be followed. Mr. SOURWINE. Did you say the matter had been put up to Mr. Macy 3 weeks or more before we talked about it, and that Mr. Macy had not given the name of an examiner, though you had been "pressing" him for 2 weeks to do so, and that finally Mr. Macy had said the Department could not borrow a trial examiner, and had advised against trying to do so? Mr. CROCKETT. I am not sure, but I do recall that I pressed Mr. Macy several times for the name of such an examiner and that the Commission later advised that, rather than selecting an examiner, we should follow our own regulations. Mr. SOURWINE. Had you made any written request of the Civil Service Commission for an examiner? Mr. CROCKETT. No, sir. Mr. Crockett, in his testimony on May 4, 1965,18 discussed, in general, the procedures on the Otepka appeal, and said it was on Secretary Rusk's order that the Otepka request for an independent examiner to preside at his hearing was denied.19 Mr. CROCKETT. The procedures to be followed in Mr. Otepka's hearing are covered by civil service laws and regulations and the Department's personnel security_regulations on the subject. The question of passports is covered entirely by the Immigration and Nationality Act and by a different set of rules and regulations. Mr. SOURWINE. Did you tell me you could see the point, and that you would take this up with Mr. Ball? Mr. CROCKETT. Yes, sir. Mr. SOURWINE. Did you tell me that Mr. Ball had "really taken to" the suggestion of having the Otepka hearing chaired by a trained trial examiner, and had been disappointed when Mr. Macy's recommendation forced the "change of plans"? 16 Ibid., pt. 12, p. 937. 17 State Department Security hearings, pt. 8, p. 553. The conversation referred to was held on July 10, 1964. 19 Many of the questions asked on this date were answered in writing, many months later, in connection with Mr. Crockett's correction of his testimony. State Department Security hearings, pt. 8, pp. 554-556. 65-860-67-pt. 3- -5 Mr. CROCKETT. Yes, sir. Provided that it could be done in such a manner that in itself would not constitute violation of our rules and regulations that could be used by the courts to nullify the outcome of the Otepka case because we had failed to follow our own written procedures. Mr. SOURWINE. Did we talk about the same matter the next day? Mr. CROCKETT. I could have, Mr. Sourwine, but again it is impossible for me to recall specifics that long ago. Mr. SOURWINE. Did you, in that second conversation, tell me that Mr. Macy had warned that, if the State Department used an APA trial examiner for the Otepka hearing, the Civil Service Commission might have to reverse the ultimate decision? Mr. CROCKETT. I truthfully don't remember all the aspects of our conversation but it was certainly of concern to the CSC that we handle procedural aspects of the case in full accord with our own regulations so that the outcome could not be nullified on a procedural technicality. Mr. SOURWINE. You realize, do you not, that the only kind of decision which would be appealable, and therefore subject to reversal, would be a decision against Mr. Otepka? The Department could not appeal its own decision? Mr. CROCKETT. Certainly, but if the outcome were unfavorable we would not want the decision overturned because of a technicality. Mr. SOURWINE. Isn't it true that if Mr. Otepka waived any right he might have to an examiner who is an employee of the Department of State, he would not be in a position to raise that point on appeal? Mr. CROCKETT. This is a point of law, Mr. Sourwine, and I am not qualified to make a statement on this point. However, as stated before, Mr. Otepka's appeal procedures are clearly outlined in the regulations. Mr. SOURWINE. Isn't it also true that, before we talked, Mr. Otepka had formally and in writing asked the Department to name an independent examiner? Mr. CROCKETT. Yes, sir. Mr. SOURWINE. What is the experience of any of the individuals the State Department has named to preside at Mr. Otepka's hearing, in presiding over hearings or other judicial or quasi-judicial proceedings? Mr. CROCKETT. Mr. Dragon has been involved in special administrative hearings both within and outside the Department. Mr. SOURWINE. When was the hearing officer chosen by the State Department in the Otepka case notified of his appointment? Mr. CROCKETT. Mr. Otepka selected Mr. Dragon as hearing officer, from a list given him, on January 20, 1964. Mr. SOURWINE. When was he, in fact, appointed? Mr. CROCKETT. He has not yet been appointed officially by the Department. He is the designee hearing officer. Mr. SOURWINE. When was Mr. Otepka notified of this? Mr. CROCKETT. On July 21, 1964, the Department replied to Mr. Otepka's views concerning the hearing and told him that, in accordance with his letter, Mr. Dragon would be appointed hearing officer. Mr. SOURWINE. Do not the rules of the Department require a hearing within 2 weeks? Mr. CROCKETT. The laws require that a hearing must be held 2 weeks after the appointment of an officer. We have delayed making that appointment in order to accommodate Mr. Otepka's requests for a delay in the hearing. Mr. SOURWINE. What has been done to comply with these rules? Mr. CROCKETT. These rules have been complied with fully and faithfully. Mr. SOURWINE. What is the name of the person named to preside at the Òtepka hearing? Mr. CROCKETT. Mr. Otepka selected Mr. Edward Dragon. He has not been officially designated yet. Mr. ŠOURWINE. Is this person an employee of the Department of State, or an employee of the Agency for International Development (AID), or both? Mr. CROCKETT. He is an employee of AID but qualifies within the meaning of State Department regulations since AID is a legal part of the Department of State and subject to the jurisdiction of the Secretary. Mr. SOURWINE. Is he eligible under the State Department regulations? Mr. CROCKETT. Yes, sir. Mr. SOURWINE. Have you ever had any question about this? Mr. CROCKETT. Not besides your concern, Mr. Sourwine. Mr. SOURWINE. Hasn't an inquiry been ordered to determine if he is eligible? This was done when? Mr. CROCKETT. It was determined by both the Legal Adviser's Office of the Department and AID that employees of AID were eligible to act in this capacity. Mr. SOURWINE. Did he get any answers? When? Mr. CROCKETT. The question has been resolved to the full satisfaction of officials of the Department that an employee of AID is qualified under our regulations to serve in this capacity. Mr. SOURWINE. How do you explain a situation in which the Department reverses itself after a commitment to accept the unanimous advice of the Internal Security Subcommittee in this matter, on the ground that it cannot do so without violating its regulation, and then proceeds to appoint to the job a man whose employment raises a question of his eligibility under the regulations? Mr. CROCKETT. I accepted your advice but found it impossible to use it in view of our legal requirements. I would like to state, Mr. Sourwine, that I do not believe I was ever in a position to make a commitment to the committee to have an outside hearing officer but indicated I would communicate the committee's concern and interest in the affair to my superiors which I faithfully did. Mr. SOURWINE. Did you tell us, Mr. Crockett, if the notice to Mr. Otepka respecting denial of his request for an independent examiner to preside at his hearing went out at your order or at Mr. Rusk's order? Mr. CROCKETT. I am sure it was discussed with the Secretary; I am sure it was his order; yes. Further information concerning the procedures in selecting a hearing officer for the Otepka case is contained in the following memorandum identified by the testimony immediately preceding it: 20 Mr. SOURWINE. Here, sir, is a memorandum which I made for my files following a telephone conversation with you. I will give this to you and I will ask you if you will, sir, to take it with you. Don't take the time to study it now. Mr. CROCKETT. All right. Mr. SOURWINE. The date of the memorandum is July 10, 1964. If you have no objections to this memorandum going in the record, may the order be that it will go in, and you can lay it in when you correct your testimony. And if you find any errors there, I would appreciate it if you would correct them. I do not claim to be infallible, and I want to be sure that the memorandum speaks truly with regard to the recollections of both of us. Mr. CROCKETT. It is my recollection that the memorandum of conversation of July 10 is substantially correct. As a matter of fact, it was subsequently decided by the Department not to employ an outside trial examiner but to follow our own departmental regulations in the case. (The memorandum of July 10, 1964, reads as follows:) From: J. G. Sourwine. Subject: Otepka hearing. MEMO FOR THE FILES JULY 10, 1964. In telephone conversation this afternoon Mr. William Crockett told me that while it was true that Mr. Ball had decided to adopt the Internal Security Subcommittee's suggestion and have the Otepka hearing presided over by a trial examiner borrowed from another agency (under the Administrative Procedure Act, and that he (Crockett) had told Senator Dodd this in my presence and had reiterated it to Mr. Dodd later, there had been a "change in plans.' Mr. Crockett said he thought Mr. Ball had talked with Senator Dodd about this directly, but that he did not know whether Mr. Ball had told Senator Dodd about the change in plans. Mr. Crockett said this change in plans was made necessary when Mr. Macy of the Civil Service Commission advised the State Department not to try to borrow a trial examiner, because this exceeded their authority. Mr. Crockett said the matter had been put up to Mr. Macy 3 weeks or more ago, that Mr. Macy had not given the name of an examiner, that they had been "pressing him" for 2 weeks, and that Mr. Macy had finally said that the State Department could not borrow a trial examiner, and had advised against trying to do so. Mr. Crockett pointed out (or, possibly, intended to convey that Mr. Macy had pointed out) that the State Department's own regulations provide that in a case of a hearing on charges, such as Otepka's, the hearings shall be conducted *State Department Security hearings, pt. 8, p. 558. |