[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1856 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1856

 To amend title 38, United States Code, to provide for suspension and 
    removal of employees of the Department of Veterans Affairs for 
 performance or misconduct that is a threat to public health or safety 
 and to improve accountability of employees of the Department, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 23, 2015

 Mr. Blumenthal (for himself, Mrs. Murray, Mr. Sanders, Mr. Brown, Mr. 
 Tester, and Ms. Hirono) introduced the following bill; which was read 
        twice and referred to the Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 38, United States Code, to provide for suspension and 
    removal of employees of the Department of Veterans Affairs for 
 performance or misconduct that is a threat to public health or safety 
 and to improve accountability of employees of the Department, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of Veterans Affairs 
Equitable Employee Accountability Act of 2015''.

SEC. 2. SUSPENSION AND REMOVAL OF DEPARTMENT OF VETERANS AFFAIRS 
              EMPLOYEES FOR PERFORMANCE OR MISCONDUCT THAT IS A THREAT 
              TO PUBLIC HEALTH OR SAFETY.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by adding at the end the following new section:
``Sec. 715. Employees: suspension and removal for performance or 
              misconduct that is a threat to public health or safety
    ``(a) Suspension and Removal.--Subject to the provisions of this 
section, the Secretary may--
            ``(1) suspend without pay an employee of the Department if 
        the Secretary determines the performance or misconduct of the 
        employee is a clear and direct threat to public health or 
        safety; and
            ``(2) remove an employee suspended under paragraph (1) if, 
        after such investigation and review as the Secretary considers 
        necessary, the Secretary determines that removal is necessary 
        in the interests of public health or safety.
    ``(b) Procedure.--An employee suspended under subsection (a)(1) is 
entitled, after suspension and before removal, to--
            ``(1) not later than 30 days after the date of the 
        suspension, a written statement of the specific charges against 
        the employee;
            ``(2) a reasonable opportunity, but not less than 7 
        business days, to answer the charges orally and in writing and 
        to furnish affidavits and other documentary evidence in support 
        of the answer;
            ``(3) at the request of the employee, and not later than 15 
        business days after such request, a formal review by a 
        Department authority duly constituted for purposes of this 
        section at which the employee may be represented by an attorney 
        or other representative;
            ``(4) a review of the case by the Secretary before a 
        decision adverse to the employee is made final;
            ``(5) as soon as practicable, a decision of the Secretary 
        with respect to the charges against the employee; and
            ``(6) a written statement of the decision of the Secretary 
        that includes the specific reasons for the decision.
    ``(c) Appeal.--An employee suspended or removed under subsection 
(a)--
            ``(1) is entitled to appeal to the Merit Systems Protection 
        Board under section 7701 of title 5; and
            ``(2) may obtain judicial review of a final order or 
        decision of the Merit Systems Protection Board under section 
        7703 of such title.
    ``(d) Relation to Other Disciplinary Rules.--The authority provided 
under this section shall be in addition to the authority provided under 
section 713 and subchapter V of chapter 74 of this title and title 5 
with respect to disciplinary actions for performance or misconduct.
    ``(e) Back Pay.--
            ``(1) In general.--If an employee of the Department is 
        subject to a suspension or removal under this section and the 
        Secretary makes a determination described in paragraph (2) with 
        respect to such suspension or removal, the employee shall 
        receive back pay equal to the total amount of pay that such 
        employee would have received during the period that the 
        suspension or removal (as the case may be) was in effect, less 
        any amounts earned by the employee through other employment 
        during that period.
            ``(2) Determination described.--A determination described 
        in this paragraph with respect to a suspension or removal is a 
        determination that the suspension or removal--
                    ``(A) is not warranted; or
                    ``(B) is, under applicable law, rule, regulation, 
                or collective bargaining agreement, a prohibited 
                personnel practice described in section 2302(b) of 
                title 5.
    ``(f) Employee Defined.--In this section, the term `employee' means 
any individual occupying a position within the Department under a 
permanent or indefinite appointment and who is not serving a 
probationary or trial period.''.
    (b) Clerical and Conforming Amendments.--
            (1) Clerical.--The table of sections at the beginning of 
        chapter 7 of such title is amended by inserting after the item 
        relating to section 713 the following new item:

``715. Employees: suspension and removal for performance or misconduct 
                            that is a threat to public health or 
                            safety.''.
            (2) Conforming.--Section 4303(f) of title 5, United States 
        Code, is amended--
                    (A) in paragraph (2), by striking ``or'' at the 
                end;
                    (B) in paragraph (3), by striking the period at the 
                end and inserting ``, or''; and
                    (C) by adding at the end the following:
            ``(4) any suspension or removal under section 715 of title 
        38.''.
    (c) Report on Suspensions and Removals.--
            (1) In general.--Not later than one year after the date of 
        the enactment of this Act, the Inspector General of the 
        Department of Veterans Affairs shall submit to the Committee on 
        Veterans' Affairs of the Senate and the Committee on Veterans' 
        Affairs of the House of Representatives a report on suspensions 
        and removals of employees of the Department of Veterans Affairs 
        made under section 715 of title 38, United States Code, as 
        added by subsection (a).
            (2) Elements.--The report required by paragraph (1) shall 
        include the following:
                    (A) The number of employees who were suspended 
                under section 715 of title 38, United States Code, as 
                added by subsection (a).
                    (B) The number of employees who were removed under 
                such section.
                    (C) A description of the threats to public health 
                or safety that caused such suspensions or removals.
                    (D) The number of suspensions or removals, or 
                proposed suspensions or removals, under such section 
                that were of an employee who filed a complaint 
                regarding--
                            (i) an alleged prohibited personnel 
                        practice committed by an officer or employee of 
                        the Department; or
                            (ii) the safety of a patient at a medical 
                        facility of the Department.
                    (E) Of the number of suspensions or removals 
                described in subparagraph (D), the number of such 
                suspensions or removals that the Inspector General 
                considers to be retaliation for whistleblowing.
                    (F) The number of suspensions or removals under 
                such section 715 that were of an employee who was the 
                subject of a complaint made to the Department regarding 
                the health or safety of a patient at a medical facility 
                of the Department.
                    (G) Any recommendations by the Inspector General, 
                based on the information described in subparagraphs (A) 
                through (F), to improve the authority of the Secretary 
                of Veterans Affairs to make such suspensions or 
                removals.

SEC. 3. ACCOUNTABILITY OF LEADERS FOR MANAGING THE DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by inserting after section 709 the following new section:
``Sec. 709A. Annual performance plan for political appointees
    ``(a) In General.--The Secretary shall conduct an annual 
performance plan for each political appointee of the Department that is 
similar to the annual performance plan conducted for an employee of the 
Department who is appointed as a career appointee (as that term is 
defined in section 3132(a)(4) of title 5) within the Senior Executive 
Service at the Department.
    ``(b) Elements of Plan.--Each annual performance plan conducted 
under subsection (a) with respect to a political appointee of the 
Department shall include an assessment of whether the appointee is 
meeting the following goals:
            ``(1) Recruiting, selecting, and retaining well-qualified 
        individuals for employment at the Department.
            ``(2) Engaging and motivating employees.
            ``(3) Training and developing employees and preparing those 
        employees for future leadership roles within the Department.
            ``(4) Holding each employee of the Department that is a 
        manager accountable for addressing issues relating to 
        performance, in particular issues relating to the performance 
        of employees that report to the manager.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 7 of such title is amended by inserting after the item relating 
to section 709 the following new item:

``709A. Annual performance plan for political appointees.''.

SEC. 4. ACCOUNTABILITY OF MANAGERS FOR HIRING WELL-QUALIFIED PEOPLE.

    (a) In General.--With respect to any employee of the Department of 
Veterans Affairs that is required to serve a probationary period at a 
position in the Department, the Secretary of Veterans Affairs shall 
require the manager of such employee to determine, not later than 30 
days before the end of the probationary period, whether the employee 
has demonstrated successful performance and should continue past the 
probationary period before allowing the employee to continue at that 
position after the end of the probationary period.
    (b) Supervisors.--With respect to any employee of the Department 
that is serving a probationary period at a supervisory position in the 
Department, successful performance under subsection (a) shall include 
demonstrating management competencies in addition to the technical 
skills required for such position.
    (c) Performance Plan.--Each annual performance plan conducted for a 
manager of an employee serving a probationary period shall hold the 
manager accountable for--
            (1) providing regular feedback to such employee during such 
        period before making a determination under subsection (a) 
        regarding the probationary status of such employee; and
            (2) making a timely determination under subsection (a) 
        regarding the probationary status of such employee.

SEC. 5. ACCOUNTABILITY OF MANAGERS FOR ADDRESSING PERFORMANCE OF 
              EMPLOYEES.

    The Secretary of Veterans Affairs shall ensure that, as a part of 
the annual performance plan of an employee of the Department of 
Veterans Affairs that is a manager, the manager is evaluated on the 
following:
            (1) Taking action to address poor performance and 
        misconduct among the employees that report to the manager.
            (2) Taking steps to improve or sustain high levels of 
        employee engagement.

SEC. 6. IMPROVEMENT OF TRAINING FOR MANAGERS.

    The Secretary of Veterans Affairs shall provide to each employee of 
the Department of Veterans Affairs that is a manager periodic training 
on the following:
            (1) The rights of whistleblowers and how to address a 
        report by an employee of a hostile work environment, reprisal, 
        or harassment.
            (2) How to effectively motivate, manage, and reward the 
        employees that report to the manager.
            (3) How to effectively manage employees who are performing 
        at an unacceptable level and access assistance from the human 
        resources office of the Department and the Office of the 
        General Counsel of the Department with respect to those 
        employees.

SEC. 7. PROMOTIONAL OPPORTUNITIES FOR TECHNICAL EXPERTS.

    The Secretary of Veterans Affairs shall develop a promotional track 
for employees of the Department of Veterans Affairs that the Secretary 
determines are technical experts to allow such employees to advance in 
their career without being required to transition to management 
positions.

SEC. 8. EXPANSION OF DEFINITION OF PERSONNEL ACTION TO INCLUDE 
              PERFORMANCE EVALUATIONS OF EMPLOYEES OF THE DEPARTMENT OF 
              VETERANS AFFAIRS.

    Section 2302(a)(2)(A)(viii) of title 5, United States Code, is 
amended by inserting ``or under title 38'' after ``chapter 43 of this 
title''.

SEC. 9. WRITTEN OPINION ON CERTAIN EMPLOYMENT RESTRICTIONS AFTER 
              TERMINATING EMPLOYMENT WITH THE DEPARTMENT OF VETERANS 
              AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, as 
amended by section 2, is further amended by adding at the end the 
following new section:
``Sec. 717. Written opinion on certain employment restrictions after 
              terminating employment with the Department
    ``(a)  In General.--Before terminating employment with the 
Department, any official of the Department who has participated 
personally and substantially in an acquisition by the Department that 
exceeds $1,000,000 or held a key position at the Department relating to 
acquisition shall obtain a written opinion from an appropriate ethics 
counselor at the Department regarding any restrictions on activities 
that the official may undertake on behalf of a covered contractor 
during the two-year period beginning on the date on which the official 
terminates such employment.
    ``(b) Covered Contractor Defined.--In this section, the term 
`covered contractor' means a contractor carrying out a contract entered 
into with the Department, including pursuant to a subcontract.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 7 of such title, as amended by section 2, is further amended by 
inserting after the item relating to section 715 the following new 
item:

``717. Written opinion on certain employment restrictions after leaving 
                            the Department.''.

SEC. 10. REQUIREMENT FOR CONTRACTORS OF THE DEPARTMENT EMPLOYING 
              CERTAIN RECENTLY SEPARATED DEPARTMENT EMPLOYEES.

    (a) In General.--Subchapter II of chapter 81 of title 38, United 
States Code, is amended by adding at the end the following new section:
``Sec. 8129. Requirement for contractors employing certain recently 
              separated Department employees
    ``(a) In General.--A covered contractor may not knowingly provide 
compensation to an individual described in subsection (b) during the 
two-year period beginning on the date on which the individual 
terminates employment with the Department unless the covered contractor 
determines that the individual--
            ``(1) has obtained the written opinion required under 
        section 717(a) of this title; or
            ``(2) has requested such written opinion not later than 30 
        days before receiving compensation from the covered contractor.
    ``(b) Individual Described.--An individual described in this 
subsection is any official of the Department who has participated 
personally and substantially in an acquisition by the Department that 
exceeds $1,000,000 or held a key position at the Department relating to 
acquisition.
    ``(c) Covered Contractor Defined.--In this section, the term 
`covered contractor' means a contractor carrying out a contract entered 
into with the Department, including pursuant to a subcontract.''.
    (b) Application.--The requirement under section 8129(a) of title 
38, United States Code, as added by subsection (a), shall apply with 
respect to any entity that enters into a contract with the Department 
on or after the date of the enactment of this Act.
    (c) Clerical Amendment.--The table of sections at the beginning of 
chapter 81 of such title is amended by inserting after the item 
relating to section 8128 the following new item:

``8129. Requirement for contractors employing certain recently 
                            separated Department employees.''.

SEC. 11. LIMITATION ON ADMINISTRATIVE LEAVE FOR EMPLOYEES OF THE 
              DEPARTMENT OF VETERANS AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, as 
amended by section 9, is further amended by adding at the end the 
following new section:
``Sec. 719. Administrative leave limitation and report
    ``(a) Limitation Applicable to Employees Within the Department.--
(1) The Secretary may not place any covered individual on 
administrative leave for more than a total of 14 business days during 
any 365-day period.
    ``(2) The Secretary may waive the limitation under paragraph (1) 
and extend the period of administrative leave of a covered individual 
if the Secretary submits to the Committee on Veterans' Affairs of the 
Senate and the Committee on Veterans' Affairs of the House of 
Representatives a detailed explanation of the reasons the covered 
individual was placed on administrative leave and the reasons for the 
extension of such leave. Such explanation shall include the name of the 
covered individual, the location where the covered individual is 
employed, and the job title of the covered individual.
    ``(3) In this subsection, the term `covered individual' means an 
employee of the Department--
            ``(A) who is subject to an investigation for purposes of 
        determining whether such individual should be subject to any 
        disciplinary action under this title or title 5; or
            ``(B) against whom any disciplinary action is proposed or 
        initiated under this title or title 5.
    ``(b) Report on Administrative Leave.--(1) Not later than 30 days 
after the end of each fiscal year, the Secretary shall submit to the 
Committee on Veterans' Affairs of the Senate and the Committee on 
Veterans' Affairs of the House of Representatives a report listing the 
name of each employee of the Department (if any) who has been placed on 
administrative leave for a period longer than 7 business days during 
such fiscal year.
    ``(2) Each report submitted under paragraph (1) shall include, with 
respect to each employee listed in such report, the position occupied 
by the employee, the number of business days of such leave, and the 
reason that such employee was placed on such leave.
    ``(3) In submitting each report under paragraph (1), the Secretary 
shall take such measures to protect the privacy of the employees listed 
in the report as the Secretary considers appropriate.
    ``(c) Administrative Leave Defined.--In this section, the term 
`administrative leave'--
            ``(1) means leave without loss of or reduction in pay, 
        leave to which an employee of the Department is otherwise 
        entitled, or credit for time or service; and
            ``(2) includes any type of paid non-duty status.''.
    (b) Application.--
            (1) Administrative leave limitation.--Subsection (a) of 
        section 719 of title 38, United States Code (as added by 
        subsection (a)), shall apply to any period of administrative 
        leave (as defined in such section) commencing on or after the 
        date of the enactment of this Act.
            (2) Report.--The report under section 719(b) of such title 
        (as added by subsection (a)) shall apply beginning in the first 
        quarter that ends after the date that is 180 days after the 
        date of the enactment of this Act.
    (c) Clerical Amendment.--The table of sections at the beginning of 
chapter 7 of such title, as amended by section 9, is further amended by 
adding at the end the following new item:

``719. Administrative leave limitation and report.''.

SEC. 12. IMPROVEMENT OF MEDICAL OVERSIGHT WITHIN THE DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) In General.--Subchapter II of chapter 73 of title 38, United 
States Code, is amended by inserting after section 7324 the following 
new section:
``Sec. 7324A. Periodic reports on programs, operations, and other 
              functions of the Veterans Health Administration
    ``(a) Report on Programs and Operations.--Not later than 60 days 
after the date of the enactment of the Department of Veterans Affairs 
Equitable Employee Accountability Act of 2015, and periodically 
thereafter, the Office of the Medical Inspector of the Veterans Health 
Administration shall submit to the Secretary, the Under Secretary for 
Health, the Committee on Veterans' Affairs of the Senate, and the 
Committee on Veterans' Affairs of the House of Representatives a report 
on any problems or deficiencies encountered by the Department in 
carrying out the programs and operations of the Veterans Health 
Administration, including any recommendations for corrective action.
    ``(b) Submittal of Other Reports.--The Office of the Medical 
Inspector shall submit to the Committee on Veterans' Affairs of the 
Senate and the Committee on Veterans' Affairs of the House of 
Representatives each report prepared by the Office in carrying out the 
functions of the Office not later than 30 days after completing such 
report.
    ``(c) Protection of Privacy.--The Office of the Medical Inspector 
shall, in carrying out the requirements of this section, protect any 
medical or other personally identifiable information obtained by the 
Office from disclosure or misuse in accordance with all laws on privacy 
applicable to such information.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 73 of such title is amended by inserting after the item 
relating to section 7324 the following new item:

``Sec. 7324A. Periodic reports on programs, operations, and other 
                            functions of the Veterans Health 
                            Administration.''.

SEC. 13. COMPTROLLER GENERAL REPORT ON PERFORMANCE AND ACCOUNTABILITY 
              OF EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS.

    Not later than 15 months after the date of the enactment of this 
Act, the Comptroller General of the United States shall submit to the 
Committee on Veterans' Affairs of the Senate and the Committee on 
Veterans' Affairs of the House of Representatives a report on the 
following:
            (1) The implementation by the Department of Veterans 
        Affairs of section 713 of title 38, United States Code, 
        including the following:
                    (A) An assessment of the impact of the 
                implementation of section 713 of title 38, United 
                States Code, on the performance and accountability of 
                employees of the Department.
                    (B) An assessment of the impact of the 
                implementation of such section on recruitment and 
                retention of employees of the Department, particularly 
                employees within the Senior Executive Service.
            (2) An assessment of the policies of the Department for 
        dealing with issues relating to the performance of employees of 
        the Department, including recommendations on addressing 
        performance and misconduct issues in an expedited manner.
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