[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1132 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 673
115th CONGRESS
  2d Session
                                H. R. 1132

                          [Report No. 115-387]


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 7, 2018

Received; read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

                           November 26, 2018

  Reported by Mr. Johnson, with an amendment and an amendment to the 
                                 title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
     To amend title 5, United States Code, to provide for a 2-year 
 prohibition on employment in a career civil service position for any 
          former political appointee, and for other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Political Appointee 
Burrowing Prevention Act''.</DELETED>

<DELETED>SEC. 2. LIMITATION ON EMPLOYMENT OF POLITICAL APPOINTEES IN 
              CAREER CIVIL SERVICE POSITIONS.</DELETED>

<DELETED>    (a) In General.--Subchapter I of chapter 31 of title 5, 
United States Code, is amended by adding at the end the 
following:</DELETED>
<DELETED>``Sec. 3115. Employment of political appointees</DELETED>
<DELETED>    ``(a) Appointment Approval Required.--</DELETED>
        <DELETED>    ``(1) In general.--The head of an agency may not 
        appoint any individual described in paragraph (5) to a career 
        position within the agency without receiving prior written 
        approval from the Associate Director of Merit Systems 
        Accountability and Compliance, consistent with the requirements 
        of this subsection.</DELETED>
        <DELETED>    ``(2) Request.--The head of an agency shall submit 
        a request to the Associate Director to approve the appointment 
        of any individual described in paragraph (5) to a career 
        position. Any such request shall include certification by the 
        head of the agency to the Associate Director that the 
        appointment is necessary for the agency to meet its 
        mission.</DELETED>
        <DELETED>    ``(3) Review and determination.--The Associate 
        Director shall review any request received pursuant to 
        paragraph (2) and deny any such request unless the Associate 
        Director determines that the appointment process with respect 
        to the request was fair, open, and free from political 
        influence. If the Associate Director makes that determination, 
        the Associate Director may approve the request.</DELETED>
        <DELETED>    ``(4) Notification to congress.--With respect to 
        any request approved under paragraph (3), the Associate 
        Director shall, not less than five days before the date the 
        Associate Director provides approval to the head of the 
        requesting agency, provide 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 the agency certification under paragraph (2) and the 
        agency head's rationale for that certification.</DELETED>
        <DELETED>    ``(5) Covered individuals.--An individual 
        described in this paragraph is--</DELETED>
                <DELETED>    ``(A) a political appointee;</DELETED>
                <DELETED>    ``(B) a former political appointee who 
                held any political position during the 5-year period 
                before the date of the request described in paragraph 
                (2); or</DELETED>
                <DELETED>    ``(C) at the discretion of the Director of 
                the Office of Personnel Management, a former political 
                appointee who held any political position before the 
                five-year period described in subparagraph 
                (B).</DELETED>
<DELETED>    ``(b) Restriction on Appointment.--</DELETED>
        <DELETED>    ``(1) In general.--Notwithstanding any other law, 
        rule, or regulation, during the 2-year period following the 
        date a political appointee leaves or departs from a political 
        position, such appointee may not be appointed to any career 
        position in the civil service.</DELETED>
        <DELETED>    ``(2) Exception.--Paragraph (1) shall not apply to 
        a political appointee who has not personally and substantially 
        participated in any particular matter while employed in a 
        political position.</DELETED>
<DELETED>    ``(c) Application.--Nothing in this section shall be 
construed to restrict the appointment of an individual who is--
</DELETED>
        <DELETED>    ``(1) entitled to reinstatement under section 
        3593(b); or</DELETED>
        <DELETED>    ``(2) eligible for reinstatement under section 
        3593(a).</DELETED>
<DELETED>    ``(d) Definitions.--In this section--</DELETED>
        <DELETED>    ``(1) the term `agency' has the meaning given the 
        term `Executive agency' in section 105;</DELETED>
        <DELETED>    ``(2) the term `Associate Director' means the 
        Associate Director of Merit Systems Accountability and 
        Compliance at the Office of Personnel Management;</DELETED>
        <DELETED>    ``(3) the term `political appointee' means an 
        individual serving in an appointment of any duration to a 
        political position;</DELETED>
        <DELETED>    ``(4) the term `political position' means--
        </DELETED>
                <DELETED>    ``(A) a position with respect to which 
                appointment is made--</DELETED>
                        <DELETED>    ``(i) by the President; 
                        or</DELETED>
                        <DELETED>    ``(ii) by the President, by and 
                        with the advice and consent of the 
                        Senate;</DELETED>
                <DELETED>    ``(B) a position which has been excepted 
                from the competitive service by reason of its 
                confidential, policy-determining, policy-making, or 
                policy-advocating character;</DELETED>
                <DELETED>    ``(C) a position described under sections 
                5312 through 5316 (relating to the Executive Schedule); 
                and</DELETED>
                <DELETED>    ``(D) a general position in the Senior 
                Executive Service during such time as it is filled by--
                </DELETED>
                        <DELETED>    ``(i) a noncareer appointee, as 
                        defined in paragraph (7) of section 3132(a); 
                        or</DELETED>
                        <DELETED>    ``(ii) a limited term appointee or 
                        limited emergency appointee, as defined in 
                        paragraphs (5) and (6) of section 3132(a), who 
                        is serving under a political 
                        appointment.</DELETED>
        <DELETED>    ``(5) the term `career position' means--</DELETED>
                <DELETED>    ``(A) a position in the competitive 
                service filled by career or career-conditional 
                appointment;</DELETED>
                <DELETED>    ``(B) a position in the excepted service 
                filled by an appointment of equivalent tenure as a 
                position described in subparagraph (A);</DELETED>
                <DELETED>    ``(C) a career reserved position, as 
                defined in paragraph (8) of section 3132(a), in the 
                Senior Executive Service; or</DELETED>
                <DELETED>    ``(D) a general position in the Senior 
                Executive Service when filled by a career appointee, as 
                defined in section 3132(a)(4);</DELETED>
        <DELETED>    ``(6) the term `participated' means an action 
        taken as an officer or employee through decision, approval, 
        disapproval, recommendation, the rendering of advice, 
        investigation, or other such action; and</DELETED>
        <DELETED>    ``(7) the term `particular matter' includes any 
        investigation, application, request for a ruling or 
        determination, rulemaking, contract, controversy, claim, 
        charge, accusation, arrest, or judicial or other 
        proceeding.''.</DELETED>
<DELETED>    (b) Clerical Amendment.--The table of sections of chapter 
31 of title 5, United States Code, is amended by adding after the item 
relating to section 3114 the following:</DELETED>

<DELETED>``3115. Employment of political appointees.''.
<DELETED>    (c) Application.--</DELETED>
        <DELETED>    (1) Appointment requests.--Section 3115(a) of 
        title 5, United States Code, as added by subsection (a), shall 
        apply to any appointment or request for appointment described 
        in such section submitted to the Associate Director of Merit 
        Systems Accountability and Compliance after the date of 
        enactment of this Act.</DELETED>
        <DELETED>    (2) Limitation on appointments.--Section 3115(b) 
        of title 5, United States Code, as added by subsection (a), 
        shall apply to any individual who leaves or departs from a 
        political position (as that term is defined in section 
        3115(c)(2) of such title, as added by such subsection) after 
        the date of enactment of this Act.</DELETED>
<DELETED>    (d) Regulations Required.--The Director of the Office of 
Personnel Management shall issue regulations necessary to carry out 
this Act. Such regulations shall include guidance on the definition of 
the term ``personally and substantially participated in a particular 
matter'' in section 3115(b)(2) of title 5, United States Code, as added 
by subsection (a), consistent with section 2641.201 of title 5, Code of 
Federal Regulations.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Political Appointee Burrowing 
Prevention Act''.

SEC. 2. LIMITATION ON EMPLOYMENT OF POLITICAL APPOINTEES IN CAREER 
              CIVIL SERVICE POSITIONS.

    (a) In General.--Subchapter I of chapter 31 of title 5, United 
States Code, is amended by adding at the end the following:
``Sec. 3117. Employment of political appointees
    ``(a) Appointment Approval Required.--
            ``(1) In general.--The head of an agency may not appoint a 
        covered individual to a career position within the agency 
        without receiving prior written approval from the Associate 
        Director, consistent with the requirements of this subsection.
            ``(2) Request.--If the head of an agency wishes to appoint 
        a covered individual to a career position, the head of the 
        agency shall submit a request to the Associate Director to 
        approve the appointment, which shall include a certification by 
        the head of the agency to the Associate Director that--
                    ``(A) the career position would not involve 
                confidential, policy-determining, policy-making, or 
                policy-advocating responsibilities (unless the career 
                position is in the Senior Executive Service);
                    ``(B) the appointment process was based on merit 
                after a fair and open competition; and
                    ``(C) the appointment process did not give any 
                preference or special advantage to the covered 
                individual based on a prior political appointment, 
                political influence, or political affiliation.
            ``(3) Review and determination.--
                    ``(A) In general.--The Associate Director shall--
                            ``(i) review each request received pursuant 
                        to paragraph (2); and
                            ``(ii) make a favorable or unfavorable 
                        determination whether, with respect to the 
                        request, the position classification and 
                        qualifications requirements and the appointment 
                        process were fair, open, and free from 
                        political influence.
                    ``(B) Approval.--If the Associate Director makes a 
                favorable determination under subparagraph (A)(ii), the 
                Associate Director may approve the request.
                    ``(C) Denial.--If the Associate Director makes an 
                unfavorable determination under subparagraph (A)(ii), 
                the Associate Director shall deny the request.
            ``(4) Notification to congress.--With respect to any 
        request approved under paragraph (3), the Associate Director 
        shall, not later than 5 days before the date the Associate 
        Director provides the approval to the head of the requesting 
        agency, 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 the 
        certification under paragraph (2) relating to the request and 
        the rationale of the head of the agency for the certification.
    ``(b) Probationary Period.--
            ``(1) In general.--A covered individual shall complete a 2-
        year period of probation before an appointment to a career 
        position in the competitive service approved under subsection 
        (a) becomes final.
            ``(2) Exception.--Paragraph (1) shall not apply to--
                    ``(A) a political appointee who has not personally 
                and substantially participated in any particular 
                policy-making activity or similar matter while employed 
                in a political position; or
                    ``(B) a political appointee who has previously held 
                a career position in the competitive service and 
                successfully completed a probationary period for that 
                position under section 3321.
    ``(c) Application.--Nothing in this section shall be construed to 
restrict the appointment of an individual who is--
            ``(1) entitled to reinstatement under section 3593(b); or
            ``(2) eligible for reinstatement under section 3593(a).
    ``(d) Definitions.--In this section--
            ``(1) the term `agency' has the meaning given the term 
        `Executive agency' in section 105;
            ``(2) the term `Associate Director' means--
                    ``(A) the Associate Director of Merit Systems 
                Accountability and Compliance of the Office of 
                Personnel Management; or
                    ``(B) if the Associate Director described in 
                subparagraph (A) is not responsible for carrying out 
                the authorities under section 1104(b)(2), the Associate 
                Director of the Office of Personnel Management 
                responsible for carrying out such authorities;
            ``(3) the term `career position' means--
                    ``(A) a position in the competitive service filled 
                by a career or career-conditional appointment;
                    ``(B) a position in the excepted service filled by 
                an appointment of equivalent tenure as a position 
                described in subparagraph (A);
                    ``(C) a career reserved position, as defined in 
                paragraph (8) of section 3132(a), in the Senior 
                Executive Service; or
                    ``(D) a general position in the Senior Executive 
                Service filled by a career appointee, as defined in 
                section 3132(a)(4);
            ``(4) the term `covered individual' means--
                    ``(A) a political appointee;
                    ``(B) a former political appointee who held any 
                political position during the 5-year period before the 
                date of the request described in subsection (a)(2); or
                    ``(C) at the discretion of the Director of the 
                Office of Personnel Management, a former political 
                appointee who held any political position before the 5-
                year period described in subparagraph (B);
            ``(5) the term `participated' means an action taken as an 
        officer or employee through decision, approval, disapproval, 
        recommendation, the rendering of advice, investigation, or 
        other such action;
            ``(6) the term `particular matter' includes any 
        investigation, application, request for a ruling or 
        determination, rulemaking, contract, controversy, claim, 
        charge, accusation, arrest, or judicial or other proceeding;
            ``(7) the term `political appointee' means an individual 
        serving in an appointment of any duration to a political 
        position; and
            ``(8) the term `political position' means--
                    ``(A) a position with respect to which appointment 
                is made--
                            ``(i) by the President; or
                            ``(ii) by the President, by and with the 
                        advice and consent of the Senate;
                    ``(B) a position which has been excepted from the 
                competitive service by reason of its confidential, 
                policy-determining, policy-making, or policy-advocating 
                character;
                    ``(C) a position described under sections 5312 
                through 5316 (relating to the Executive Schedule); or
                    ``(D) a general position in the Senior Executive 
                Service filled by--
                            ``(i) a noncareer appointee, as defined in 
                        paragraph (7) of section 3132(a); or
                            ``(ii) a limited term appointee or limited 
                        emergency appointee, as defined in paragraphs 
                        (5) and (6) of section 3132(a), who is serving 
                        under a political appointment.''.
    (b) Clerical Amendment.--The table of sections of chapter 31 of 
title 5, United States Code, is amended by adding after the item 
relating to section 3116 the following:

``3117. Employment of political appointees.''.
    (c) Application.--
            (1) Appointment requests.--Section 3117(a) of title 5, 
        United States Code, as added by subsection (a), shall apply to 
        any appointment or request for appointment described in such 
        section submitted to the Associate Director of Merit Systems 
        Accountability and Compliance after the date of enactment of 
        this Act.
            (2) Limitation on appointments.--Section 3117(b) of title 
        5, United States Code, as added by subsection (a), shall apply 
        to any individual who leaves or departs from a political 
        position (as that term is defined in section 3117 of such 
        title, as added by such subsection) after the date of enactment 
        of this Act.
    (d) Regulations Required.--The Director of the Office of Personnel 
Management, in consultation with the Office of Special Counsel, shall 
issue regulations necessary to carry out this Act and the amendments 
made by this Act, which shall include guidance on the definition of the 
term ``personally and substantially participated in a particular 
policy-making activity or similar matter'' in section 3117(b)(2) of 
title 5, United States Code, as added by subsection (a), consistent 
with section 2641.201 of title 5, Code of Federal Regulations.
            Amend the title so as to read: ``An Act to amend title 5, 
        United States Code, to appropriately limit employment in a 
        career civil service position for political appointees and 
        former political appointees, and for other purposes.''.
                                                       Calendar No. 673

115th CONGRESS

  2d Session

                               H. R. 1132

                          [Report No. 115-387]

_______________________________________________________________________

                                 AN ACT

     To amend title 5, United States Code, to provide for a 2-year 
 prohibition on employment in a career civil service position for any 
          former political appointee, and for other purposes.

_______________________________________________________________________

                           November 26, 2018

        Reported with an amendment and an amendment to the title