sessed by him under any existing law, rule, or regulation of any department of the Government or officer thereof.

SEC. 19. It shall be the authority and duty of the Civil Service Commission to make and enforce appropriate rules and regulations to carry into full effect the provisions, intent, and purpose of this Act and such Executive orders as may be issued pursuant thereto and in furtherance thereof.

SEC. 20. Nothing in this Act contained is intended to apply to any position appointment to which by the Constitution is required to be confirmed by, or made with, the advice and consent of the United States Senate.

SEC. 21. Should any section or portion of this Act be held to be unconstitutional, such holding shall not affect the remaining sections or portions of the Act not held to be unconstitutional.

Hon. ROBERT RAMSPECK,

House of Representatives.

CIVIL SERVICE COMMISSION, Washington, D. C., April 13, 1939.

DEAR MR. RAMSPECK: Further reference is made to your letter of March 18, 1939, transmitting a copy of H. R. 5101, and requesting a report of the Commission's views.

The Commission has given careful study to the bill and particularly approves the provision which more particularly defines a "veteran"; and that which provides that a passing mark of 70 must be attained before preference points are added. It is believed that these provisions will work to the ultimate benefit of both the veterans and the Government. However, with approval for the general purpose of the bill, several changes are suggested which it is believed will improve its operation and clarify its provisions. Under section 18 of the bill, of course, those persons already in the service or on existing registers of the Commission, who have been granted preference because of service in the military forces during time of peace, would not be deprived of such preference by reason of the enactment of the bill.

The definition of a "disabled veteran” contained in section 2 (b) is substantially the same as that in section 1 of Civil Service Rule VI. The Commission believes, however, that the definition will be clarified if the word "present" is inserted before the word "existence" in line 4 of section 2 (b) so that disabled veterans will be required to establish by official records the present existence of a service-connected disability.

The definition of the term "preference wife" contained in section 2 (d) should be also clarified to show that the wife of a disabled veteran is entitled to preference only if the disabled veteran himself is not qualified because of disability. This change can be accomplished by inserting before the word "himself" in line 12 the phrase, "because of service-connected disability."

Under section 3 the preference provided in the bill is applicable to rating, certification, appointment, reinstatement, reemployment, and retention with respect to all positions in (a) the competitive classified civil service; (b) the unclassified civil service; (c) temporary or emergency agencies. Sections 10 and 11 prescribe the manner in which preference shall be granted for positions in the unclassified service and in temporary and emergency agencies. In the unclassified · service the nominating or appointing officer is required to make selection from the list of qualified applicants in the same manner as provided in section 9 of the bill for the classified service. For positions in temporary or emergency agencies the nominating or appointing officer is required to make selection "from the list of qualified applicants." The intent of these sections is not entirely clear. The words "unclassified service" are generally understood to mean all positions which are not required to be filled in accordance with the competitive provisions of the Civil Service Act and rules. Apparently, it is the purpose of the bill to require all positions in the Federal service to be filled from registers of eligibles maintained by this Commission.

If it is not the purpose of sections 10 and 11 to require unclassified and emergency positions to be filled from registers of eligibles resulting from competitive examination, the reference in these sections to "the list of qualified applicants" is not clear. Your committee is, of course, aware that there are hundreds of positions in the civil service of the Government for which the Civil Service Commission under existing law takes no part at all in recruiting appointees. The appointing officer is in many such cases entirely unrestricted by law in the manner of selecting employees, and his choice is not confined to any particular list or lists of eligibles. He may make his selections from among applications which have been

voluntarily filed by persons interested in employment, or he may negotiate with a particular individual whose services he desires to employ. In view of this fact it is difficult to see how any plan to grant preference in appointment to veterans in such cases can be effectively administered. Unless the positions for which veterans are intended to be given preference in appointment are included in the classified civil service so that appointments to such positions will be required to be made from lists of eligibles secured through competitive examination, the Commission believes it will be impossible to administer effectively any veterans' preference legislation for such positions.

Inasmuch as the Civil Service Commission is charged under section 19 with the duty of carrying into effect the provisions of the bill, it will be necessary to effect a clarification of the intent of sections 3, 9, 10, and 11 before the bill can be effectively administered.

Under section 3, also, preference is required to be given to veterans in reinstatement. The Commission's present function in the matter of reinstatement is merely to determine the eligibility under the civil service rules of a former employee who is specifically recommended by an appointing officer for reinstatement. In the reinstatement procedure a list of eligibles is not drawn upon, but consideration is given only to the particular individual recommended by the appointing officer. If section 3 is enacted into law, therefore, the only way in which a provision for veteran preference could be given effect is by the maintenance by the Commission of lists of persons eligible for reinstatement. Since the cost of such a procedure would be entirely incommensurate with any benefits which might accrue to the service the Commission recommends that the word "reinstatement" be deleted from line 19 of section 3.

Section 4 provides that disabled veterans, widows, and preference wives shall have 10 points added to their earned ratings, and all veterans shall have 5 points added to their earned ratings, provided that they have earned a passing grade without the addition of such points for preference. The Commission believes that this section is good. Requiring the veteran to earn the minimum passing grade will serve in some measure to eliminate the objections which have been offered in the past on the part of both the public and appointing officers to the extension of preference in appointment to veterans. The Commission recommends, however, that the final proviso of the section be amended to read: "Provided, That without the addition of said points they shall have made a passing grade and that they shall be physically able to perform the duties of the position for which application is made."

Section 5 of the bill provides that where experience is an element of qualification, time spent in the military or naval service of the United States shall be credited in the rating where the veteran's actual employment in a vocation similar to that for which he is examined was temporarily interrupted by such military service but was later resumed. A similar provision is now contained in section 1 of Civil Service Rule VI. The Commission believes that the section will be improved if the last clause is eliminated and the section ended with the word "resumed" in line 15.

Under present procedure age, height, and weight requirements are waived in civil-service examinations for persons entitled to military preference, except in a very small number of examinations where the observance of such requirements is considered essential for the proper discharge of the duties of the position concerned. The Commission may, in addition, waive physical requirements in the case of disabled veterans. The standard physical requirements for such positions as post-office clerk and carrier, for example, are liberally relaxed for the benefit of disabled veterans. With respect to the requirement of education and experience, it may be pointed out that the Civil Service Act requires that all examinations shall be practical in their character and shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of the position to which they seek to be appointed. Whenever special requirements concerning education and experience are prescribed for admission to civil-service examinations, such requirements are regarded as essential for the performance of the duties of the position for which the examination is held.

The Commisson, therefore, does not favor the enactment of section 6 of the bill in its present wording, particularly in view of the extension of the waiver of physical requirements to veterans other than disabled veterans. The Commission believes it would be far more desirable from the viewpoint of personnel administration to substitute the following language for section 6 of the bill:

"SEC. 6. In determing qualifications for examination of certification with respect to preference eligibles, the Civil Service Commission or other examining agency may waive requirements as to age, height, and weight, provided such requirements

are not essential to the performance of the duties of the position for which the examination is given. The Civil Service Commission or other examining agency, after giving due consideration to the recommendations of any accredited physician in the service of the United States, may waive the physical requirements in the case of any disabled veteran, provided such disabled veteran is, in the opinion of the Civil Service Commission, physically able to discharge efficiently the duties of the position for which the examination is given."

Under section 12 of the bill disabled veterans, widows, preference wives and veterans will receive preference in certification in the order named from appropriate reemployment lists maintained by the Civil Service Commission, as well as those maintained by other establishments of the Government. The Commission construes this section in the light of the provision of the civil-service rules permitting the appropriate appointing officer to specify the sex of the person whom he desires to appoint. In other words, if the appointing officer specifies that he desires male eligibles, widows and preference wives would be eliminated from consideration and the order of certification would be: disabled veterans; veterans; nonveterans.

Reinstatement lists, as such, are not required to be maintained by Government establishments except at navy yards. In many services it is frequently necessary to lay off employees for varying periods of time. In the navy-yard service the names of such employees are entered on a reinstatement list in the order of their efficiency ratings, with the result that when it is desired to reemploy such former employees those with the highest efficiency ratings are first recalled to duty. Under section 12 of the bill a former employee with a high efficiency rating and long service who is not entitled to military preference could not be recalled to duty if a preference eligible with only a fair efficiency rating and very little service were available for reemployment. If it is desired to grant preference to veterans in reinstatement from such lists, therefore, the Commission believes that section 12 should be amended so as to restrict preference in reemployment to those veterans who efficiency ratings are at least "good."

Under section 12, also, employees entitled to preference who resign from the service voluntarily would be eligible to have their names entered on the reemployment list and would receive priority in certification over persons not entitled to preference. The Commission believes that this is a very undesirable feature of the bill. Eligibility on the reemployment list maintained at present by this Commission is restricted to those persons having satisfactory efficiency ratings who are involuntarily separated from the service without fault on their part, and who are recommended unqualifiedly for further employment. An employee entitled to preference who resigns voluntarily from the service should not be given preference in reemployment over all other persons who have been involuntarily separated without fault on their part and who are not entitled to military preference, nor should he be given priority over other veteran eligibles whose names appear on competitive registers. The Commission, therefore, recommends the deletion of the word "resigned" from line 3 of page 7.

Section 13 of the bill provides for preference to veterans in the event of a reduction of force in any Government establishment, and is similar to section 5 of Civil Service Rule XII. The bill, however, makes a departure from the procedure now observed under the civil-service rules in failing to require that any consideration at all be given to the efficiency ratings of the employees in the class to be reduced. As between employees engaged on similar work, veterans are at present given preference in retention in the event of reduction of force. The rules do not require, however, that a veteran having an efficiency rating less than "good" be retained in preference to a nonveteran having a higher efficiency rating. The Commission believes that such a procedure is sound from the standpoint of personnel administration, and that section 13 of the bill should be amended by adding after the words "similar work" the phrase "having the same or a lower efficiency rating."

Under section 14 of the bill a veteran who is removed for cause will have the right to appeal to the Civil Service Commission, and the Commission may, after investigation, approve, disapprove, or modify the decision of the removing officer, which action of the Commission will be binding on all administrative and accounting officers of the Government. There is at present no central body for hearing the cases of employees removed for cause and the procedure instituted by section 14 of the bill will obviously result in a substantial increase in the Commission's work.

Under the present civil-service rules an appointing officer who passes over an eligible veteran and selects another eligible with the same or lower rating is required to file with the Commission a statement in writing setting forth the

reasons for such action, which statement is not made available to the veteran or any one else except in the discretion of the appointing officer. The Commission is required to review these statements and in every case where the reasons are not regarded as adequate so advise the head of the appropriate agency. Section 16 of the bill goes beyond the procedure now in effect under the civil-service rules. The bill would not only require that each preference eligible who is passed over by an appointing officer be furnished a copy of the statement of reasons for such action, but would permit such eligibles to file with the Commission an answering statement and to be granted a hearing before the Commission. The Commission also would be required, after considering the case, to render a decision concerning the justification for passing over the preference eligible and to furnish a statement of such decision to the appointing officer and the preference eligible. The bill does not require the appointing officer, however, to take any action on the basis of the Commission's decision.

As an indication of the volume of additional work on the part of the Commission which section 16 would entail, it may be pointed out that during the fiscal year 1938, 7,408 disabled veterans were certified for consideration, of whom 1,758 were passed over and 2,274 appointed. In the case of veterans granted five-point preference, 19,373 were certified for consideration, of whom 2,562 were passed over and 6,736 appointed. During the fiscal year 1938, therefore, there would have been 4,320 cases in which, under section 16 of the bill, the Commission would have been required to review the statement filed by the appointing officer and the answering statement of the veteran, to hold a hearing for the veteran, study the facts in the case, and to render a formal decision concerning the justification for passing over the preference eligible. In view of the volume of additional work which would be required of the Commission by sections 14 and 16 of the bill, an effective administration would be impossible unless sufficient appropriations were provided for an adequate staff to carry on this work.

Sincerely yours,

HARRY B. MITCHELL, President.

The CHAIRMAN. The first witness will be the author of the bill, Mr. Joe Starnes.

STATEMENT OF HON. JOE STARNES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA

Mr. STARNES. Mr. Chairman and members of the committee: I appreciate this opportunity to appear before your committee and make a statement with reference to H. R. 5101 and H. R. 5147.

These two bills were introduced by me on behalf of veteran organizations of this country. I introduced H. R. 5101 at the request of the American Legion and H. R. 5147 on behalf of the Veterans of ForeignWars.

Representatives of these organizations are present this morning and I hope they will be heard with reference to these two bills.

H. R. 5101, particularly, is a follow-up of bills which I introduced during the Seventy-fourth and Seventy-fifth Congresses and on which hearings were held in the Seventy-fifth Congress. We held at that time full and exhaustive hearings on these bills which I introduced in the Seventy-fifth Congress.

H. R. 5101 is an answer to the suggestions, objections, et cetera, made during the course of those hearings by interested parties. We think it is a very reasonable bill and one which this committee will report favorably and upon which we can get action in this section.

We believe that veterans' preference legislation is basically sound; first, because it is a recognition of services rendered by the veterans of this country in an hour of emergency;

Second, it will stimulate patriotism because it will encourage the youth of America to render service more cheerfully and more loyally if they feel and they know and can see that their services are given recognition by their country.

Then, third, it is an economic reason for legislation of this type. I am a veteran myself and I know that the average veteran prefers employment to a pension or a dole and if he is given preference in employment by the Government, either in the classified or unclassified service, it will do much to keep down the demand for pension legislation.

Then, too, they were in a preferred class in 1917. They saw that; they were selected then for preferred service on the battlefield and they were ready, too, and did offer everything that they had upon the altar of sacrifice at that time in defense of democracy and their country. We think it is nothing but right and just that the veterans be given some sort of preference in fighting democracy's peacetime battles, and we think we are entitled to that recognition.

In that connection during the Seventy-fifth Congress we called for a study and report upon veterans' preferential legislation in other countries, and my good friend Millard W. Rice made a fine statement or summarization, which was incorporated in the hearings at that time. We found that in any of the other countries which were engaged in the World War, that they gave preference to veterans more than we did in this country in the matter of employment and they went so far as even to require private industry to give them preference in employment. Now, we never had any such proposal as that in this country.

Section 2 of H. R. 5101 gives a series of definitions of the parties who will be affected by the bill. It defines the terms "veteran," "disabled veteran," "widow," "preference wife," and "preference eligibles."

Then the bill provides in section 3 that preference eligibles shall be given preference as herein provided in rating, in certification for appointment, in appointment, in reinstatement, in reemployment, and in retention in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government, permanent or temporary, and in either (a), the classified civil service; (b), the unclassified civil service; (c), any temporary or emergency establishment, agency, bureau, administration, project, and department, created by acts of Congress or Presidential Executive order; and (d), the civil service of the District of Columbia.

In the last three sections, (b), (c), and (d), it widens the scope, of course; it broadens the scope of the present preference given to veterans, and widows and wives.

Section 4 is somewhat changed now in that it provides that the veteran must earn his rating before being given the 5 or 10 points additional. That is one of the most controversial points and probably has resulted in some bitter feeling against veterans' preference on the part of Civil Service, and of some people in the classified civil service, in my judgment.

Section 5 of the bill provides that in examinations where experience is an element of qualification, time spent in the military or naval service of the United States shall be credited in a veteran's or a disabled veteran's rating where his or her actual employment in a similar vocation to that for which he or she is examined was temporarily interrupted by such military or naval service but was resumed or by application for such examination it is attempted to be resumed after his or her discharge.