II Calendar No. 1108 110th CONGRESS 2d Session S. 2148 [Report No. 110–517] IN THE SENATE OF THE UNITED STATES October 4, 2007 Mr. Akaka introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs October 1 (legislative day, September 17), 2008 Reported by Mr. Lieberman, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To provide for greater diversity within, and to improve policy direction and oversight of, the Senior Executive Service.
1.
Short title
This Act may be cited as the Senior Executive Service Diversity Assurance Act.
2.
Senior Executive Service Resource Office
(a)
Definitions
For purposes of this section— (1)the term Director means the Director of the Office of Personnel Management; (2)the term Senior Executive Service has the meaning given such term by section 2101a of title 5, United States Code; (3)the terms agency, career appointee, and career reserved position have the meanings given them by section 3132 of title 5, United States Code; and (4)the term SES Resource Office means the Senior Executive Service Resource Office, established under subsection (b). (b)
Establishment
Not later than January 1, 2009, the Director shall establish within the Office of Personnel Management an office to be known as the Senior Executive Service Resource Office. The mission of the SES Resource Office shall be— (1)to improve the efficiency, effectiveness, and productivity of the Senior Executive Service through policy formulation and oversight; (2)to advance the professionalism of the Senior Executive Service; and (3)to ensure that, in seeking to achieve a Senior Executive Service reflective of the Nation’s diversity, recruitment is from qualified individuals from appropriate sources. (c)
Functions
It shall be the function of the SES Resource Office to make recommendations to the Director with respect to regulations, and to provide guidance to agencies, concerning the structure, management, and diverse composition of the Senior Executive Service. In order to carry out the purposes of this section, the SES Resource Office shall— (1)take such actions as the SES Resource Office considers necessary to manage and promote an efficient, elite, and diverse corps of senior executives by— (A)creating policies for the management and improvement of the Senior Executive Service; (B)providing oversight of the performance, structure, and composition of the Senior Executive Service; and (C)providing guidance and oversight to agencies in the management of senior executives and candidates for the Senior Executive Service; (2)be responsible for the policy development, management, and oversight of the Senior Executive Service pay system; (3)develop standards for certification of each agency’s Senior Executive Service performance management system and evaluate all agency applications for certification; (4)be responsible for developing and monitoring programs for the advancement and training of senior executives, including the Senior Executive Service Federal Candidate Development Program; (5)provide oversight of and guidance to agency executive resources boards; (6)be responsible for the administration of the qualifications review board; (7)establish and maintain lists (in a form that renders them useful to appointing authorities and candidates) of— (A)the total number of career reserved positions at each agency; (B)the total number of vacant career reserved positions at each agency; (C)whether candidates are being sought for each such vacant position; and (D)the names and (to the extent available) the race, ethnicity, gender, and any disabilities of individuals who have been certified, in accordance with section 3393(d) of title 5, United States Code (as so redesignated by section 3(a)), as having the executive qualifications necessary for initial appointment as a career appointee; (8)establish mentoring programs for individuals described in paragraph (7)(D); (9)collect and maintain statistics relating to the composition of the Senior Executive Service based on race, ethnicity, gender, age, and persons with disabilities; (10)publish annually in the Federal Register statistics relating to— (A)the data collected by the SES Resource Office under paragraph (7); and (B)the composition of the Senior Executive Service based on the factors listed in paragraph (7)(D); and (11)conduct a continuing program for the recruitment of women, members of racial and ethnic minority groups, and the disabled for Senior Executive Service positions, with special efforts directed at recruiting from educational institutions, professional associations, and other sources. (d)
Public access to statistics
The SES Resource Office shall make the statistics under subsection (c)(10) accessible to the public through an Internet website.
3.
Career appointments
(a)
Establishment and role of SES evaluation panels
Section 3393 of title 5, United States Code, is amended— (1)by redesignating subsections (b) through (g) as subsections (c) through (h), respectively; and (2)by inserting after subsection (a) the following: (b)(1)(A)Each agency shall establish one or more Senior Executive Service evaluation panels, as appropriate, the members of which shall be appointed by the head of the agency (or his or her designee)— (i)from among senior executives of the agency or commissioned officers of the uniformed services serving on active duty in such agency; or (ii)from among senior executives of or commissioned officers of the uniformed services serving on active duty in another agency, if— (I)subparagraph (B) could not (but for this clause) otherwise be satisfied; and (II)the consent of the head of the other agency is obtained. (B)Each panel shall consist of 3 members, of whom at least 1 shall be a woman and 1 other shall be a member of a racial or ethnic minority group. (2)It shall be the function of a Senior Executive Service evaluation panel, with respect to any Senior Executive Service position for which a vacancy announcement is posted— (A)to review the executive qualifications of each candidate for a position which is to be filled by a career appointee; and (B)to certify to the appropriate executive resources board the names of candidates who, in the judgment of the panel, are best qualified for such position. Nothing in subparagraph (A) shall be considered to apply in the case of any candidate who is already a career appointee.. (b)
Role of executive resources boards
Paragraph (1) of section 3393(c) of title 5, United States Code (as so redesignated by subsection (a)), is amended to read as follows: (1)for each career reserved position for which a vacancy is posted, review the executive qualifications of candidates certified under subsection (b) with respect to such position; and . (c)
Definition of appointing authority
Section 3393 of title 5, United States Code, is amended by adding after subsection (h) (as so redesignated by subsection (a)) the following: (i)For purposes of this section, the term appointing authority means, with respect to a position within an agency, the head of such agency (or his or her designee). . (d)
Technical and conforming amendments
(1)Section 3592(a)(1) of title 5, United States Code, is amended by striking 3393(d) and inserting 3393(e). (2)Section 3593 of such title is amended— (A)in subsection (a)— (i)in the matter before paragraph (1), by striking 3393(b) and (c) and inserting 3393(c) and (d); and (ii)in paragraph (1), by striking 3393(d) and inserting 3393(e); and (B)in subsection (c)(1)— (i)in the matter before subparagraph (A), by striking 3393(b) and (c) and inserting 3393(c) and (d); and (ii)in subparagraph (C), by striking 3393(d) and inserting 3393(e). (3)Section 3594 of such title is amended in subsections (a) and (b) by striking 3393(d) and inserting 3393(e). (4)Section 3595(b)(1) of such title is amended by striking 3393(d) and inserting 3393(e). (5)Section 7541(1)(A) of such title is amended by striking 3393(d) and inserting 3393(e).
1.
Short title
This Act may be cited as the Senior Executive Service Diversity Assurance Act.
2.
Findings
Congress finds that— (1)according to the Government Accountability Office— (A)minorities made up 22.5 percent of the individuals serving at the GS–15 and GS–14 levels and 15.8 percent of the Senior Executive Service in 2007; (B)women made up 34.3 percent of the individuals serving at the GS–15 and GS–14 levels and 29.1 percent of the Senior Executive Service in 2007; and (C)although the number of career Senior Executive Service members increased from 6,110 in 2,000 to 6,555 in 2007, the representation of African American men in the career Senior Executive Service declined during that same period from 5.5 percent to 5.0 percent; and (2)according to the Office of Personnel Management— (A)black employees represented 6.1 percent of employees at the Senior Pay levels and 17.8 percent of the permanent Federal workforce compared to 10.1 percent in the civilian labor force in 2007; (B)Hispanic employees represented 4.0 percent of employees at the Senior Pay levels and 7.8 percent of the permanent Federal workforce compared to 13.3 percent of the civilian labor force in 2007; and (C)women represented 28.2 percent of employees at the Senior Pay levels and 43.9 percent of the permanent Federal workforce compared to 45.7 percent of the civilian labor force in 2007.
3.
Definitions
For purposes of this Act— (1)the term Director means the Director of the Office of Personnel Management; (2)the term Senior Executive Service has the meaning given such term by section 2101a of title 5, United States Code; (3)the terms agency, career appointee, and career reserved position have the meanings given them by section 3132 of title 5, United States Code; and (4)the term SES Resource Office means the Senior Executive Service Resource Office, established under section 4.
4.
Senior Executive Service Resource Office
(a)
Establishment
Not later than 180 days after the date of the enactment of this Act, the Director shall establish within the Office of Personnel Management an office to be known as the Senior Executive Service Resource Office. The mission of the SES Resource Office shall be— (1)to improve the efficiency, effectiveness, and productivity of the Senior Executive Service through policy formulation and oversight; (2)to advance the professionalism of the Senior Executive Service; and (3)to ensure that, in seeking to achieve a Senior Executive Service reflective of the Nation’s diversity, recruitment is from qualified individuals from appropriate sources. (b)
Functions
It shall be the function of the SES Resource Office to make recommendations to the Director with respect to regulations, and to provide guidance to agencies, concerning the structure, management, and diverse composition of the Senior Executive Service. In order to carry out the purposes of this section, the SES Resource Office shall— (1)take such actions as the SES Resource Office considers necessary to manage and promote an efficient, elite, and diverse corps of senior executives by— (A)creating policies for the management and improvement of the Senior Executive Service; (B)providing oversight of the performance, structure, and composition of the Senior Executive Service; and (C)providing guidance and oversight to agencies in the management of senior executives and candidates for the Senior Executive Service; (2)be responsible for the policy development, management, and oversight of the Senior Executive Service pay and performance management system; (3)develop standards for certification of each agency’s Senior Executive Service performance management system and evaluate all agency applications for certification; (4)be responsible for coordinating, promoting, and monitoring programs for the advancement and training of senior executives, including the Senior Executive Service Federal Candidate Development Program; (5)provide oversight of, and guidance to, agency executive resources boards; (6)be responsible for the administration of the qualifications review board; (7)establish and maintain annual statistics (in a form that renders them useful to appointing authorities and candidates) on— (A)the total number of career reserved positions at each agency; (B)the total number of vacant career reserved positions at each agency; (C)of the positions under subparagraph (B), the number for which candidates are being sought; (D)the amount of time a career reserved position is vacant; (E)the amount of time it takes to hire a candidate into a career reserved position; (F)the number of individuals who have been certified in accordance with section 3393(c) of title 5, United States Code, and the composition of that group of individuals with regard to race, ethnicity, sex, age, and individuals with disabilities; (G)the composition of the Senior Executive Service with regard to race, ethnicity, sex, age, and individuals with disabilities; (H)the composition of executive resources boards with regard to race, ethnicity, sex, and individuals with disabilities; and (I)the composition of qualifications review boards with regard to race, ethnicity, sex, and individuals with disabilities; (8)make available to the public through the official public internet site of the Office of Personnel Management, the data collected under paragraph (7); (9)establish and promote mentoring programs for potential candidates for the Senior Executive Service, including candidates who have been certified as having the executive qualifications necessary for initial appointment as a career appointee under a program established pursuant to section 3396(a) of title 5, United States Code; (10)conduct a continuing program for the recruitment of women, members of racial and ethnic minority groups, and individuals with disabilities for Senior Executive Service positions, with special efforts directed at recruiting from educational institutions, professional associations, and other sources; (11)advise agencies on the best practices for an agency in utilizing or consulting with an agency’s equal employment or diversity office or official (if the agency has such an office or official) with regard to the agency’s Senior Executive Service appointments process; and (12)evaluate and implement strategies to ensure that agencies conduct appropriate outreach to other agencies to identify candidates for Senior Executive Service positions. (c)
Protection of individually identifiable information
For purposes of subsection (b)(8), the SES Resource Office shall combine data for any agency that is not named in section 901(b) of chapter 31, United States Code, to protect individually identifiable information. (d)
Cooperation of agencies
The head of each agency shall provide the Office of Personnel Management with such information as the SES Resource Office may require in order to carry out subsection (b)(7). (e)
Staffing
The Director of the Office of Personnel Management shall make such appointments as necessary to staff the SES Resource Office.
5.
Career appointments
(a)
Promoting diversity in the career appointments process
Section 3393(b) of title 5, United States Code, is amended by inserting after the first sentence the following: In establishing an executive resources board, the head of the agency shall, to the extent practicable, ensure diversity of the board and of any subgroup thereof or other evaluation panel related to the merit staffing process for career appointees, by including members of racial and ethnic minority groups, women, and individuals with disabilities.. (b)
Regulations
Within 1 year after the date of the enactment of this Act, the Director shall promulgate regulations to implement subsection (a). (c)
Report
Within 1 year after the date of the enactment of this Act, the Director shall submit to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report evaluating agency efforts to improve diversity in executive resources boards based on the information collected by the SES Resource Office under subparagraphs (H) and (I) of section 4(b).
6.
Encouraging a more diverse Senior Executive Service
(a)
Senior Executive Service diversity plans
Within 1 year after the date of the enactment of this Act, each agency, in consultation with the Office of Personnel Management and the Chief Human Capital Officers Council, shall submit to the Office of Personnel Management a plan to enhance and maximize opportunities for the advancement and appointment of minorities, women, and individuals with disabilities in the agency to the Senior Executive Service. Agency plans shall be reflected in the strategic human capital plan. Agency plans shall address how the agency is identifying and eliminating barriers that impair the ability of minorities, women, and individuals with disabilities to obtain appointments to the Senior Executive Service and any actions the agency is taking to provide advancement opportunities, including— (1)conducting outreach to minorities, women, and individuals within the agency and outside the agency; (2)establishing and maintaining training and education programs to foster leadership development; (3)identifying career enhancing opportunities for agency employees; (4)assessing internal availability of candidates for Senior Executive Service positions; and (5)conducting an inventory of employee skills and addressing current and potential gaps in skills and the distribution of skills. Agency plans shall be updated at least every 2 years during the 10 years following enactment of this Act. An agency plan shall be reviewed by the Office of Personnel Management and, if determined to provide sufficient assurances, procedures, and commitments to provide adequate opportunities for the advancement and appointment of minorities, women, and individuals with disabilities to the Senior Executive Service, shall be approved by such Office. An agency may, in updating its plan, submit to the Office of Personnel Management an assessment of the impacts of the plan.(b)
Summary and evaluation
Within 180 days after the deadline for the submission of any report or update under subsection (a), the Director shall transmit to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report summarizing and evaluating the agency plans or updates (as the case may be) so submitted. (c)
Coordination
The Office of Personnel Management shall, in carrying out subsection (a), evaluate existing requirements under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) and section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and determine how agency reporting can be performed so as to be consistent with, but not duplicative of, such sections and any other similar requirements.
October 1 (legislative day, September 17), 2008 Reported with an amendment