[Congressional Record Volume 154, Number 90 (Tuesday, June 3, 2008)]
[House]
[Pages H4846-H4848]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT

  Mr. DAVIS of Illinois. Mr. Speaker, I move to suspend the rules and 
pass the bill (H.R. 3774) to provide for greater diversity within, and 
to improve policy direction and oversight of, the Senior Executive 
Service, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3774

       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 ``Senior Executive Service 
     Diversity Assurance Act''.

     SEC. 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.

     SEC. 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.

     SEC. 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 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 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 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;
       (E) the composition of the Senior Executive Service with 
     regard to race, ethnicity, sex, age, and individuals with 
     disabilities;
       (F) the composition of executive resources boards with 
     regard to race, ethnicity, sex, and individuals with 
     disabilities; and
       (G) 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 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 
     may 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).

     SEC. 5. CAREER APPOINTMENTS.

       (a) Promoting Diversity in the Career Appointments 
     Process.--Section 3393 of title 5, United States Code, is 
     amended--
       (1) in subsection (b), 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.''; and
       (2) in subsection (c)(1), by adding after the last sentence 
     the following: ``Consideration should also be given to 
     improving diversity by including members of racial and ethnic 
     minority groups, women, and individuals with disabilities on 
     qualifications review boards.''.
       (b) Regulations.--Within 1 year after the date of the 
     enactment of this Act, the Director shall promulgate 
     regulations to implement subsection (a) and to improve 
     diversity in executive

[[Page H4847]]

     resources boards and qualifications review boards.
       (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 
     and of the members designated by agencies to serve on 
     qualifications review boards, based on the information 
     collected by the SES Resource Office under subparagraphs (F) 
     and (G) of section 4(b)(7).

     SEC. 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, 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 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.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Illinois (Mr. Davis) and the gentlewoman from North Carolina (Ms. Foxx) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Illinois.


                             General Leave

  Mr. DAVIS of Illinois. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Illinois?
  There was no objection.
  Mr. DAVIS of Illinois. Mr. Speaker, I yield myself such time as I may 
consume.
  I introduced H.R. 3774, the Senior Executive Diversity Assurance Act, 
on October 9, 2007. The bill was considered by the Federal Workforce 
Subcommittee on April 15, 2008, and by the full Committee on Oversight 
and Government Reform on May 1, 2008, when it was approved with 
amendment by voice vote.
  Mr. Speaker, I want wanted to thank Senator Akaka for introducing a 
companion bill in the Senate, S. 2148, and for co-chairing an April 3, 
2008, joint hearing where both the House and the Senate Federal 
Workforce Subcommittees examined the need for legislation to improve 
diversity at the highest levels of the Federal Government.
  According to data from the Office of Personnel Management, the 
percentage of minorities and women at senior pay levels in the Federal 
Government, including the SES, is lower than in the civilian workforce 
and the Federal workforce as a whole. According to GAO, the number of 
African American men in the SES actually decreased between the years of 
2000 and 2007. I believe that H.R. 3774 takes an important step towards 
improving the diversity of the Senior Executive Service.
  This bill is a long time coming. Since 2003, I have requested 
Government Accountability Office reports and hearings on this issue. As 
chairman of the Subcommittee on the Federal Workforce Postal Service in 
the District of Columbia, I held a hearing in May 2007 on diversity in 
the SES. Following that hearing, my staff and I met with a number of 
Federal employee organizations, including the African American Federal 
Executives Association, the National Association of Hispanic Federal 
Executives, the Asian American Government Executives Network, Federally 
Employed Women, Blacks in Government, and the Senior Executives 
Association.
  We learned that the lack of diversity in the SES is not skewed to a 
shortage of women and minorities at the GS-15 and GS-14 levels, which 
are the development pools for the SES. According to the Government 
Accountability Office, in 2007, minorities made up 22.5 percent of the 
employees in the SES development pool. At the same time, minorities 
made up only 15.8 percent of the SES. Rather, we heard that there are 
concerns with the selection process, and there is a lack of oversight 
and accountability in promoting and hiring minorities in the SES.
  The Senior Executive Service Diversity Assurance Act aims to address 
these concerns. H.R. 3774, as reported by the Committee on Oversight 
and Government Reform, reestablishes the Senior Executive Service 
Resource Office within the Office of Personnel Management and adds new 
requirements for the office such as requiring the collection of data on 
the mark-up of the selection panels that considered candidates for SES 
positions. OPM currently encourages agencies to make these panels 
diverse but collects no data on the panels.

                              {time}  1530

  The bill requires agencies to ensure diversity by including, to the 
extent practicable, minorities, women, and individuals with 
disabilities on executive resources boards and any other panels or 
subgroups used to select SES appointees. This bill provides that OPM 
and agencies should also give consideration to improving diversity in 
qualifications review boards, which are the panels set up by OPM to 
certify the leadership qualifications of potential SES appointees. The 
bill requires OPM to issue regulations and report to Congress on agency 
efforts to improve the diversity of executive resources boards and 
qualifications review boards.
  Finally, under this bill, agencies will be required to submit 
diversity plans, modeled on the current requirement that agencies 
submit plans for the hiring and advancement of individuals with 
disabilities. Each agency must submit a plan to OPM describing what 
efforts the agency is making to enhance and maximize opportunities for 
the advancement and appointment of minorities, women, and individuals 
with disabilities to the SES. These plans will have to be updated every 
2 years for 10 years, and OPM will be required to submit a report to 
Congress summarizing and evaluating agency plans. I have also included 
a findings section that will help explain the purpose and intent of the 
legislation which is to address the concerns of the numbers of 
minorities in the SES.
  Diversity will not be achieved in the SES on good intentions and 
failed policies. Now is the time to improve diversity in the SES, 
particularly since 90 percent of the current SES corps will retire over 
the next 10 years. Diversity of gender, ethnicity, age, and 
disabilities, as well as diversity of education, thinking, and 
experience are crucial if the Federal workforce is to mirror the 
communities we live in and serve. Paying close attention to diversity 
is the key to staying competitive in an increasingly global economy and 
recruiting the best and brightest workforce. It is my belief that all 
Americans want to work for organizations where they have the 
opportunity to use their skills, their knowledge to develop their 
careers. The Senior Executive Service Diversity Assurance Act will help 
provide that opportunity.
  Therefore, Mr. Speaker, I urge passage of H.R. 3774.
  I reserve the balance of my time.

[[Page H4848]]

  Ms. FOXX. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today to speak on H.R. 3774, the Senior Executive 
Service Diversity Assurance Act.
  In April of this year, the Department of Justice wrote to the 
committee raising a number of constitutional concerns with the 
introduced version of this legislation. While a number of changes were 
made to address these concerns during committee consideration of the 
legislation, some remained concerned that the legislation could still 
be vulnerable to constitutional challenges. For example, making 
demographic information about these senior executive service candidates 
and incumbents available for hiring purposes could suggest that this 
information should be taken into account in the selection process.
  But I stand before you today to raise a concern much bigger than the 
state of our Federal workforce. I stand before you today to bring your 
attention to the woeful lack of attention that has been given this 
Congress to the skyrocketing gas prices throughout this Nation.
  Throughout the country, for the first time in our history, a gallon 
of gas at local gas stations averages more than $4, and there appears 
to be no relief in sight for working class Americans.
  House Republicans have introduced a comprehensive plan to lower gas 
prices and preserve energy independence. The Republican plan would 
increase the production of American-made energy in an environmentally 
safe way. It would promote new, clean, and reliable energy sources. It 
would cut red tape and increase the supply of American-made fuel and 
energy. And it would encourage greater efficiency by offering 
conservation tax incentives.
  The Democrats, however, have no such plan to help American families 
and small businesses deal with their increasing pain at the pump.
  At a time when our country is facing a serious crisis in energy 
prices, with all due respect to my colleague from Illinois, my 
assumption is that most Americans would prefer that we focus on solving 
America's energy woes, rather than spending valuable floor time 
debating the creation of various offices within the Office of Personnel 
Management.
  Mr. Speaker, I reserve the balance of my time.
  Mr. DAVIS of Illinois. Mr. Speaker, I continue to reserve our time.
  Ms. FOXX. Mr. Speaker, I have no further speakers and yield back the 
balance of my time.
  Mr. DAVIS of Illinois. Mr. Speaker, in closing, I want to thank and 
commend chairman of the Oversight Committee, Representative Henry 
Waxman, and the ranking member, Representative Tom Davis, for their 
outstanding leadership and work on this legislation.
  I also want to commend all of our staff persons on both sides of the 
committee, both the Democratic side and the Republican side. And 
especially do I want to commend my staff director for the Subcommittee 
on the Federal Workforce, District of Columbia and Postal Service, Ms. 
Tania Shand, for the tremendous work that she has done on this issue 
over the last 3 years in actuality.
  And with that, Mr. Speaker, I urge passage of this bill.
  I yield back the balance of our time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Illinois (Mr. Davis) that the House suspend the rules 
and pass the bill, H.R. 3774, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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