118 S1629 IS: Hatch Act Enforcement Transparency and Accountability Act
U.S. Senate
2023-05-16
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EN
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II
118th CONGRESS
1st Session
S. 1629
IN THE SENATE OF THE UNITED STATES
May 16, 2023
Mr. Luján introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To amend title 5, United States Code, to increase the accountability of the Office of Special Counsel in enforcing certain provisions of that title vigorously, consistently, and without regard to the political affiliation, career status, or personal characteristics of individuals subject to those provisions, and for other purposes.
1.

Short title
This Act may be cited as the “Hatch Act Enforcement Transparency and Accountability Act”.
2.

Addition of definitions
(a)

In general
Subchapter II of chapter 12 of title 5, United States Code, is amended by adding at the end the following:
“1219a.

Definitions
In this subchapter:
(1)

Career employee
The term career employee means an individual who is—
(A)
an employee, as that term is defined in section 7322; and
(B)
not a noncareer employee.
(2)

Covered allegation
The term covered allegation means an allegation concerning political activity prohibited under subchapter III of chapter 73.
(3)

Noncareer employee
The term noncareer employee means an individual who is—
(A)
an employee, as defined in section 2105, serving in a position in the executive branch; and
(B)
(i)
serving in a position to which the President appointed the individual (without regard to whether the advice and consent of the Senate was required with respect to that appointment), other than an individual who is—
(I)
a member of a uniformed service, as that term is defined in section 210(m) of the Social Security Act (42 U.S.C. 410(m)); or
(II)
a member of the Foreign Service serving under a career appointment, as described in section 301 of the Foreign Service Act of 1980 (22 U.S.C. 3941);
(ii)
a noncareer appointee, as that term is defined in section 3132(a);
(iii)
serving in a position in a Federal executive system that is comparable to the Senior Executive Service, the appointment to which is not made through merit-based procedures, such as a position in the Transportation Security Executive Service; or
(iv)
serving in a position with respect to which a determination has been made under section 7511(b)(2).”.
(b)

Technical and conforming amendment
The table of sections for subchapter II of chapter 12 of title 5, United States Code, is amended by adding at the end the following:
“1219a. Definitions.”.
3.

Notifying Congress in the event of a decision not to investigate a noncareer employee
Section 1217 of title 5, United States Code, is amended by adding at the end the following:
“(c)

Notification of Congress in the event of certain declinations
(1)

In general
Not later than 180 days after the date of enactment of this subsection, and once every 180 days thereafter, the Special Counsel shall submit to the Chair and Ranking Member of each of the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives a written report that contains, for the period covered by the report, the number of complaints received by the Special Counsel that the Special Counsel referred for disciplinary action.
(2)

Contents
Each report required under paragraph (1) shall—
(A)
include—
(i)
a copy of the applicable complaint;
(ii)
the name and position of the employee who is the subject of the applicable complaint; and
(B)
be organized to indicate whether the employee who is the subject of each complaint contained in the report is a career employee or a noncareer employee.”.
4.

Reporting to Congress
(a)

In general
Section 1218 of title 5, United States Code, is amended—
(1)
in the section heading, by striking “report” and inserting “reports”;
(2)
in the matter preceding paragraph (1), by striking “The Special” and inserting the following:
“(a)

In general
The Special”; and
(3)
by adding at the end the following:
“(b)

Report regarding allegations against noncareer employees
In addition to each report required under subsection (a), the Special Counsel shall submit to the Chair and Ranking Member of each committee of jurisdiction in Congress, on an annual basis, a report regarding the activities of the Special Counsel with respect to covered allegations against noncareer employees and former noncareer employees, which shall include—
(1)
for the year preceding the submission of the report, the number of such covered allegations received by the Special Counsel;
(2)
the number of such covered allegations that have resulted in an investigation conducted by the Special Counsel, whether the investigation was initiated during the year covered by the report or thereafter; and
(3)
in a confidential addendum submitted to the Chair and Ranking Member of each of the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives—
(A)
with respect to each such covered allegation not investigated, the name and position of the noncareer employee (or former noncareer employee) who was the subject of the covered allegation; and
(B)
a description of each such covered allegation for which processing of the covered allegation ceased during the year covered by the report, without regard to whether the covered allegation was received during the year covered by the report or earlier, which shall include—
(i)
a description of the outcome of the covered allegation; and
(ii)
in the case of a covered allegation against a noncareer employee who is not serving in a position with respect to which appointment by the President, by and with the advice and consent of the Senate, is required (or against a former noncareer employee who was not serving in such a position, as of the date on which the actions that are the subject of the covered allegation occurred), a statement as to whether—
(I)
the Special Counsel, under section 1215(a), presented a complaint to the Merit Systems Protection Board against the noncareer employee (or former noncareer employee) concerning the actions that are the subject of the covered allegation; and
(II)
any civil penalty assessed by the Merit Systems Protection Board under section 7326 with respect to the covered allegation has been collected in full.”.
(b)

Technical and conforming amendment
The table of sections for subchapter II of chapter 12 of title 5, United States Code, is amended by striking the item relating to section 1218 and inserting the following:
“1218. Annual reports.”.
5.

Public transparency in Hatch Act enforcement
Section 1219 of title 5, United States Code, is amended—
(1)
in subsection (a)—
(A)
in paragraph (3), by striking “and” at the end;
(B)
in paragraph (4), by striking the period at the end and inserting “; and”; and
(C)
by adding at the end the following:
“(5)
a detailed written explanation of the complete basis for each decision of the Special Counsel not to present, under section 1215(a), a complaint to the Merit Systems Protection Board against any noncareer employee determined by the Special Counsel to have violated subchapter III of chapter 73, except that this paragraph shall not apply with respect to a noncareer employee who is serving in a position for which nomination by the President, by and with the advice and consent of the Senate, is required (unless such a noncareer employee is serving in a position in the Foreign Service).”;
(2)
by redesignating subsection (b) as subsection (c); and
(3)
by inserting after subsection (a) the following:
“(b)

Publication of demographic statistics regarding certain enforcement
(1)

In general
The Special Counsel shall track, publish, and keep current on the official website of the Office of Special Counsel the following information, which shall remain on that website for a period of not less than 10 fiscal years, beginning with the fiscal year to which the information pertains:
(A)
On an ongoing basis, the following anonymized information pertaining to covered allegations against career employees, which shall be organized by fiscal year:
(i)
The number of career employees who were the subject of covered allegations received by the Special Counsel during the applicable fiscal year.
(ii)
With respect to the career employees identified under clause (i)—
(I)
the number of those career employees who the Special Counsel investigated, without regard to whether the investigation occurred during the fiscal year in which the Special Counsel received the initial covered allegation with respect to such a career employee or during a subsequent fiscal year; and
(II)
the number of those career employees who were the subject of a complaint presented to the Special Counsel with the Merit Systems Protection Board with respect to the applicable covered allegation, without regard to whether the Special Counsel presented such a complaint during the fiscal year in which the Special Counsel received the initial covered allegation with respect to such a career employee or during a subsequent fiscal year.
(iii)
For clauses (i) and (ii), demographic information pertaining to the race, sex, ethnicity, national origin, and disability status of the applicable career employees.
(B)
On an ongoing basis, the following anonymized information pertaining to covered allegations against noncareer employees, which shall be organized by fiscal year:
(i)
The number of noncareer employees who were the subject of covered allegations received by the Special Counsel during the applicable fiscal year.
(ii)
With respect to the noncareer employees identified under clause (i)—
(I)
the number of those noncareer employees who the Special Counsel investigated, without regard to whether the investigation occurred during the fiscal year in which the Special Counsel received the initial covered allegation with respect to such a noncareer employee or during a subsequent fiscal year; and
(II)
the number of those noncareer employees who were the subject of a complaint presented to the Special Counsel with the Merit Systems Protection Board with respect to the applicable covered allegation, without regard to whether the Special Counsel presented such a complaint during the fiscal year in which the Special Counsel received the initial covered allegation with respect to such a noncareer employee or during a subsequent fiscal year.
(iii)
For clauses (i) and (ii), demographic information pertaining to the race, sex, ethnicity, national origin, and disability status of the applicable noncareer employees.
(2)

Demographic information
The Director of the Office of Personnel Management, the head of the agency employing an individual who is the subject of a complaint filed with the Special Counsel, and, as applicable, the White House Presidential Personnel Office shall, upon request, provide the Special Counsel with information pertaining to the race, sex, ethnicity, national origin, disability status, and status as a career employee or noncareer employee of that individual, if that information has already been collected in connection with the Federal employment or former Federal employment of that individual.”.
6.

Severability
If any provision of this Act, or of any amendment made by this Act, or the application of any provision of this Act, or of any amendment made by this Act, to any person or circumstance is held to be unconstitutional, the remainder of this Act, and the amendments made by this Act, and the application of the provision this Act, or of the amendment made by this Act, to any other person or circumstance shall not be affected by the holding.