[Congressional Record Volume 159, Number 112 (Wednesday, July 31, 2013)]
[House]
[Pages H5196-H5202]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GOVERNMENT EMPLOYEE ACCOUNTABILITY ACT
Mr. MEADOWS. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 2579) to amend title 5, United States Code, to provide for
investigative leave requirements with respect to Senior Executive
Service employees, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 2579
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 ``Government Employee
Accountability Act''.
SEC. 2. SUSPENSION FOR 14 DAYS OR LESS FOR SENIOR EXECUTIVE
SERVICE EMPLOYEES.
Paragraph (1) of section 7501 of title 5, United States
Code, is amended to read as follows:
``(1) `employee' means--
``(A) an individual in the competitive service who is not
serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous
employment in the same or similar positions under other than
a temporary appointment limited to 1 year or less; or
``(B) a career appointee in the Senior Executive Service
who--
``(i) has completed the probationary period prescribed
under section 3393(d); or
``(ii) was covered by the provisions of subchapter II of
this chapter immediately before appointment to the Senior
Executive Service;''.
SEC. 3. INVESTIGATIVE LEAVE AND TERMINATION AUTHORITY FOR
SENIOR EXECUTIVE SERVICE EMPLOYEES.
(a) In General.--Chapter 75 of title 5, United States Code,
is amended by adding at the end the following:
``SUBCHAPTER VI--INVESTIGATIVE LEAVE FOR SENIOR EXECUTIVE SERVICE
EMPLOYEES
``Sec. 7551. Definitions
``For the purposes of this subchapter--
``(1) `employee' has the meaning given such term in section
7541; and
``(2) `investigative leave' means a temporary absence
without duty for disciplinary reasons, of a period not
greater than 90 days.
``Sec. 7552. Actions covered
``This subchapter applies to investigative leave.
``Sec. 7553. Cause and procedure
``(a)(1) Under regulations prescribed by the Office of
Personnel Management, an agency may place an employee on
investigative leave, without loss of pay and without charge
to annual or sick leave, only for misconduct, neglect of
duty, malfeasance, or misappropriation of funds.
``(2) If an agency determines, as prescribed in regulation
by the Office of Personnel Management, that such employee's
conduct is flagrant and that such employee intentionally
engaged in such conduct, the agency may place such employee
on investigative leave under this subchapter without pay.
``(b)(1) At the end of each 45-day period during a period
of investigative leave implemented under this section, the
relevant agency shall review the investigation into the
employee with respect to the misconduct, neglect of duty,
malfeasance, or misappropriation of funds.
[[Page H5197]]
``(2) Not later than 5 business days after the end of each
such 45-day period, the agency shall submit a report
describing such review 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.
``(3) At the end of a period of investigative leave
implemented under this section, the agency shall--
``(A) remove an employee placed on investigative leave
under this section;
``(B) suspend such employee without pay; or
``(C) reinstate or restore such employee to duty.
``(4) The agency may extend the period of investigative
leave with respect to an action under this subchapter for an
additional period not to exceed 90 days.
``(c) An employee against whom an action covered by this
subchapter is proposed is entitled to, before being placed on
investigative leave under this section--
``(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
``(A) there is reasonable cause to believe that the
employee has committed a crime for which a sentence of
imprisonment can be imposed; or
``(B) the agency determines, as prescribed in regulation by
the Office of Personnel Management, that the employee's
conduct with respect to which an action covered by this
subchapter is proposed is flagrant and that such employee
intentionally engaged in such conduct;
``(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits and
other documentary evidence in support of the answer;
``(3) be represented by an attorney or other
representative; and
``(4) a written decision and specific reasons therefor at
the earliest practicable date.
``(d) An agency may provide, by regulation, for a hearing
which may be in lieu of or in addition to the opportunity to
answer provided under subsection (c)(2).
``(e) An employee against whom an action is taken under
this section is entitled to appeal to the Merit Systems
Protection Board under section 7701.
``(f) Copies of the notice of proposed action, the answer
of the employee when written, and a summary thereof when made
orally, the notice of decision and reasons therefor, and any
order effecting an action covered by this subchapter,
together with any supporting material, shall be maintained by
the agency and shall be furnished to the Merit Systems
Protection Board upon its request and to the employee
affected upon the employee's request.
``SUBCHAPTER VII--REMOVAL OF SENIOR EXECUTIVE SERVICE EMPLOYEES
``Sec. 7561. Definition
``For purposes of this subchapter, the term `employee' has
the meaning given such term in section 7541.
``Sec. 7562. Removal of Senior Executive Service employees
``(a) Notwithstanding any other provision of law and
consistent with the requirements of subsection (b), the head
of an agency may remove an employee for serious neglect of
duty, misappropriation of funds, or malfeasance if the head
of the agency--
``(1) determines that the employee knowingly acted in a
manner that endangers the interest of the agency mission;
``(2) considers the removal to be necessary or advisable in
the interests of the United States; and
``(3) determines that the procedures prescribed in other
provisions of law that authorize the removal of such employee
cannot be invoked in a manner that the head of an agency
considers consistent with the efficiency of the Government.
``(b) An employee may not be removed under this section--
``(1) on any basis that would be prohibited under--
``(A) any provision of law referred to in section
2302(b)(1); or
``(B) paragraphs (8) or (9) of section 2302(b); or
``(2) on any basis, described in paragraph (1), as to which
any administrative or judicial proceeding--
``(A) has been commenced by or on behalf of such employee;
and
``(B) is pending.
``(c) An employee removed under this section shall be
notified of the reasons for such removal. Within 30 days
after the notification, the employee is entitled to submit to
the official designated by the head of the agency statements
or affidavits to show why the employee should be restored to
duty. If such statements and affidavits are submitted, the
head of the agency shall provide a written response, and may
restore the employee's employment if the head of the agency
chooses.
``(d) Whenever the head of the agency removes an employee
under the authority of this section, the head of the agency
shall notify Congress of such termination, and the specific
reasons for the action.
``(e) An employee against whom an action is taken under
this section is entitled to appeal to the Merit Systems
Protection Board under section 7701 of this title.
``(f) Copies of the notice of proposed action, the answer
of the employee when written, and a summary thereof when made
orally, the notice of decision and reasons therefor, and any
order effecting an action covered by this subchapter,
together with any supporting material, shall be maintained by
the agency and shall be furnished to the Merit Systems
Protection Board upon its request and to the employee
affected upon the employee's request.
``(g) A removal under this section does not affect the
right of the employee affected to seek or accept employment
with any other department or agency of the United States if
that employee is declared eligible for such employment by the
Director of the Office of Personnel Management.
``(h) The authority of the head of the agency under this
section may not be delegated.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 75 of title 5, United States Code, is
amended by adding after the item relating to section 7543 the
following:
``subchapter vi--investigative leave for senior executive service
employees
``7551. Definitions.
``7552. Actions covered.
``7553. Cause and procedure.
``subchapter vii--removal of senior executive service employees
``7561. Definition.
``7562. Removal of Senior Executive Employees.''.
SEC. 4. SUSPENSION OF SENIOR EXECUTIVE SERVICE EMPLOYEES.
Section 7543 of title 5, United States Code, is amended--
(1) in subsection (a), by inserting ``misappropriation of
funds,'' after ``malfeasance,''; and
(2) in subsection (b), by amending paragraph (1) to read as
follows:
``(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
``(A) there is reasonable cause to believe that the
employee has committed a crime for which a sentence of
imprisonment can be imposed; or
``(B) the agency determines, as prescribed in regulation by
the Office of Personnel Management, that the employee's
conduct with respect to which an action covered by this
subchapter is proposed is flagrant and that such employee
intentionally engaged in such conduct;''.
SEC. 5. MISAPPROPRIATION OF FUNDS AMENDMENTS.
(a) Reinstatement in the Senior Executive Service.--Section
3593 of title 5, United States Code, is amended--
(1) in subsection (a)(2), by inserting ``misappropriation
of funds,'' after ``malfeasance,''; and
(2) in subsection (b), by striking ``or malfeasance'' and
inserting ``malfeasance, or misappropriation of funds''.
(b) Placement in Other Personnel Systems.--Section 3594(a)
of title 5, United States Code, is amended by striking ``or
malfeasance'' and inserting ``malfeasance, or
misappropriation of funds''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
North Carolina (Mr. Meadows) and the gentleman from Maryland (Mr.
Cummings) each will control 20 minutes.
The Chair recognizes the gentleman from North Carolina.
General Leave
Mr. MEADOWS. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days within which to revise and extend their remarks
and to include extraneous materials on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from North Carolina?
There was no objection.
Mr. MEADOWS. Mr. Speaker, I yield myself such time as I may consume.
From Jeff Neely at the GSA to Lois Lerner at the IRS, the Oversight
and Government Reform Committee has uncovered numerous examples of
high-ranking government employees engaging in behavior contrary to the
principles of public service.
In the private sector, these behaviors would be grounds for serious
disciplinary action or termination. In some cases, these employees
could face civil or criminal penalties--but not in the Federal
bureaucracy. Only in Washington would these employees not be terminated
but, instead, be placed on administrative leave with pay.
H.R. 2579 helps ensure Senior Executive Service employees are held
accountable for their actions while maintaining existing due process
rights. This legislation was unanimously approved by the Oversight
Committee last week, and a similar version of this bill was passed by
the House by a vote of 402-2 last Congress.
I want to commend the gentleman from Pennsylvania (Mr. Kelly) for his
work on this bill, and I urge all Members to support its adoption.
I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
I am no longer surprised, but I am saddened that the Republicans are
[[Page H5198]]
wasting the last few days before the August recess to vote on bills to
repeal the Affordable Care Act for the 40th time and to continue their
campaign to blame our country's civil servants for the challenges we
face. We could be addressing the many serious and important issues
facing our country, such as appointing conferees to negotiate a
balanced budget to replace the harmful sequester, or passing
legislation that would create jobs for the middle class, or voting on
comprehensive immigration reform. Instead, Republicans are more
interested in playing partisan games and in advancing political
messaging bills.
Americans want Congress to focus on creating jobs and on growing our
economy. The Democrats have put forward a responsible budget that
invests in the future and in the middle class while taking a balanced
approach to deficit reduction. Yet, Republicans refuse to listen, with
a record defined more by what they have failed to do than what they
have actually achieved.
It has been 209 days since the start of this Congress, and the
Republicans have failed to pass a single jobs bill. It has been 129
days since the Senate passed a budget, and the Republicans have refused
to appoint conferees to complete negotiations and resolve final
legislation. Now Senators John McCain, Susan Collins, Lamar Alexander,
and Bob Corker have joined House Democrats in our calls to go to
conference. Yet, here we are today debating on H.R. 2579, a bill that
would strip due process protections from Senior Executive Service
employees accused of wrongdoing.
This bill would give a politically appointed agency head broad
discretion to fire Senior Executive Service employees without advance
notice. The bill would provide no opportunity for a proper
investigation or for employees to address the agency's concerns before
such action is taken. H.R. 2579 would eliminate due process protections
that were put in place precisely to protect civil servants from
partisan, political influence. It would shift the burden onto employees
to prove their innocence and seek reinstatement. This is contrary to
the core legal principle of the American justice system--the
presumption that one is innocent until proven guilty.
My Republican colleagues would have you believe that this is a bill
needed to hold senior executives in our Federal Government agencies
accountable. Although abuses committed by government employees
certainly need to be addressed, denying due process rights to employees
is not the appropriate way to do it.
There are existing procedures in place to deal with these challenges.
Under current law, agencies may take action against senior executives
for misconduct, neglect of duty, malfeasance, or the failure to accept
a reassignment or a transfer of function. However, current law requires
agencies to give Senior Executive employees 30 days' advance notice,
among other rights, before disciplinary action is commenced unless
there is reasonable cause to believe that the employee has committed a
crime.
I believe that we need to strengthen and improve the agency
implementation of existing disciplinary procedures rather than pass
legislation that would abridge the fundamental rights of our public
servants. This bill would fire accused employees first, then ask
questions later. I am afraid agency heads could feel undue pressure in
particularly high-profile cases to terminate employees without first
conducting a thorough investigation to determine the facts. For these
reasons, I strongly oppose H.R. 2579, and I urge my colleagues to join
me in opposing this legislation.
With that, I reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I yield such time as he may consume to my
distinguished colleague from the State of Pennsylvania (Mr. Kelly).
Mr. KELLY of Pennsylvania. For those of you up in the gallery, please
put on your seatbelts. Again, this room is spinning so fast right now
that it's hard to determine what's being said or why it's even being
said. So, please, put them on. I don't want you to fall out of the
gallery in trying to keep up with what's being said.
The SPEAKER pro tempore. Members are advised to address their remarks
to the Chair and to refrain from referring to occupants of the gallery.
Mr. KELLY of Pennsylvania. My comment, Mr. Speaker, is I'm concerned
about the safety of those watching today from the gallery. I just
wanted them to be aware that there is a definite turntable here, and
I'm really surprised that anybody can walk straight when they leave
this room because of the spin that's put on everything. So my concern
is for the safety of those watching today.
In going back to February 6, 1788, James Madison said to us, ``If
angels were to govern men, neither external nor internal controls on
government would be necessary.''
I've got to tell you that Madison is still alive, and he is alive on
both sides of the aisle. What amazes me sometimes is how we get so far
away from what it is that we are trying to do and who it is we are
trying to protect. Now, I've heard the terms that--do you know what?--
we're not protecting those who work for America. Let me tell you about
those who work for America.
When I come out of my church on Sunday morning--out of St. Paul's,
the 8 o'clock mass--I see all kinds of people who work for America.
When I'm down at the Kmart, doing my shopping, I see all kinds of
people who work for America. When I'm in Erie, Pennsylvania, I see all
kinds of people who work for America--the same in Meadville,
Pennsylvania, and the same in Butler, Pennsylvania. So I'm sometimes
confused about who it is we're trying to protect. If it's truly those
who work for America, it is those who work for America.
All of these folks behind me work for America. All of the people at
our homes work for America, do they not?
Now the question is: Who looks after those people, those American
taxpayers? When there is an abuse, my goodness, have we gotten to the
point at which our only concern is for those who get a check that says
it came from the United States Government?
I know who funds America. It is hardworking American taxpayers. That
is why it's so unbelievable for me to sit here and listen to how we're
not protecting those who work for America.
{time} 1400
This is not about the men and women, the guys and gals that go to
work every day for the government. The ranking member knows that this
is not about stripping them of their rights. It truly is not. In fact,
if you go to page 8, lines 15 through 17:
An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title.
Nobody is being stripped of anything. What we're doing is taking care
of all those people who elected us to come here. I've got to tell you,
I wasn't just elected as a Republican to come and take care of only
those folks in my district that are registered Republican. I was sent
here to represent everybody. I've never sat back and said, You know
what? This isn't in the best interest of my Republican constituents. It
helps my Democrat constituents. Since I'm a Republican, I'll game it,
I'll spin it so that I can't vote that way. That's absolutely stupid.
Again, how far have we gotten from the initial message of what it is
we're trying to do? The Government Employee Accountability Act--when we
had the GSA hearing and the ranking member sat there, I said, Why is
Mr. Neely on leave with pay when you know the IG had him under
investigation? In fact, you bonused him money for the very same event
that he's being investigated for. You bonused him, and then you let him
go home to do what he wants to do. He's on leave with pay.
When I go back home, people ask me all the time, and I see their
faces, and I can't look at them and say, You know what? What you don't
understand is that in Washington, you can do the wrong thing and
there's no accountability. Now, if you're back home in the private
sector and you do the wrong thing, you're held accountable. What you
have to understand is that you work in the private sector, not the
public sector. They cry out for equal treatment. Not special treatment,
not to be handled differently than anybody else. But they say, Mr.
Kelly, if it's good for the goose, it's good for the gander.
Should not both sides of this aisle be concerned with what's right
for the
[[Page H5199]]
American taxpayer? Should we not be concerned with what's right for
American citizens? Should we not say to these same people who run these
agencies, Look, we know you don't have the tools that you need--and
that's what I was told by the GSA, that they put Mr. Neely on leave
because they don't have any mechanism to do otherwise.
I don't want to keep beating up Jeff Neely, but by the same token, I
refuse to keep beating up American taxpayers. If I don't have the
stomach, if I don't have the backbone to do what's right, and if I
can't walk a straight line when I leave here--this is not about taking
the rights away from people who work for the government. Come on, guys.
You know that.
Oh, my goodness. We've got to get together on this because this is
not making sense to me. This looks like the back end of a frat party
where everybody's kind a walking crooked coming out, trying to figure
out what it is they did for the last 3 or 4 hours. I've got to tell you
that this is common sense for America. If we cannot protect those who
sent us here, if we cannot restore the trust of those who sent us here,
if we're going to come here and debate and make a mockery and spin it
to the point where it confuses the American people--this is not about
taking anybody's rights away. This is about reinforcing the
responsibilities of those who work for the American taxpayer, and that
is all of us, both Republican and Democrat.
I've got to tell you what I've said before. There is no way I'll ever
go back to northwest Pennsylvania and tell them, You just don't get it.
See, the problem with you people is you're so busy working trying to
make ends meet, you don't understand how government works. We can twist
it. We can turn it. We can say anything we want. What we ask you is to
believe. You know what the American people are telling us? I don't
believe you any more. I don't trust you any more. I don't understand
why I can be held accountable for everything I do, but other folks that
work for me can do pretty much anything they want. Then we'll redeploy
them. We'll push them off to another area. They won't lose a penny.
We'll bring them back in under some other title, some other agency. All
I want to do is give those managers of those agencies the tools that
they have requested of us in Congress, give them the ability to hold
people accountable.
Who am I talking about? I'm talking about the senior executives. I'm
not talking about every gal and guy who walks into an office every day
that does great work for the American people. Let's not get confused.
So, please, don't spin it. My days of riding a merry-go-round are over,
and so should yours be. We can fix this. We have to put things in there
that make it possible to hold people accountable. The people that
raised me, the people that I've worked for, the people that I have
played under as coaches, hold you accountable for everything you do,
and there are repercussions for doing the wrong thing. You don't give
them a pat on the back and say, You know what? Go home for a while.
Don't worry about your pay. The American taxpayer is going to pick up
the tab on that. We'll keep you safe. We'll keep you covered.
Senior executive, this is the creme de la creme, This is the top of
the bunch. This isn't all those people you see walking in and out. I
don't want to get it confused with the gentleman from Maryland about
sequestration. This is about what's fair for this Nation. I'm sick and
tired of having everyone else throwing in and saying, No, you don't
understand. Let's all put it in a blender, we'll pour it out, and
they'll drink it. No, they won't. The American people are choking now
on the rhetoric that comes out of this House because we don't talk
straight. We talk Washingtonese, which nobody understands. We wouldn't
allow it in our public sector, and we shouldn't allow it here.
If it's about accountability, listen, I will tell you what, I would
like to see accountability not just in the government employee, but
also in Members of this great legislature. My goodness, if we don't
understand what Madison said and we are truly not ruled by angels, as
we know, we are obliged to put in elements that force us--because we
won't do the right thing on our own--force us to do the right thing for
the American taxpayers and those men and women who get up every day,
throw their feet out over the bed, and go to work. Do you know why they
do it? Because they love their families and they love their country,
and they know they have to do it.
Mr. Speaker, thank you so much for allowing this piece of legislation
to come forward. I can't tell you how proud I am to be a Member of this
body. We may disagree on some things, but people tell me, Kelly, you
don't understand. I say, No, no, no. The problem is I do understand; I
just don't agree. I understand it so well that if we don't right these
wrongs, this great country will never be what it was supposed to be.
For us to sit here as a body and allow it to happen and say, Too tough
a vote. Man, some people are not going to like me for this. I may not
get elected the next time. I just say, Get a stomach, get a stronger
back, and do what's right for America. This is about what's right for
the true Americans that keep this great organization going. That is the
American taxpayer.
So having said that, Mr. Speaker, I thank you so much for allowing me
to get up and speak, and please, ``If angels were to govern men,
neither external nor internal controls on government would be
necessary.'' Isn't it amazing that over 225 years ago, the same thing
rings true today? If it were really angels that were running the
organization, we wouldn't be having these conversations, and we would
just go ahead with every day and say it's all right.
We're not. We're ruled by men. Men make mistakes. Men need to be held
accountable when they make a mistake. I want to make sure that each of
us, no matter what party you represent, is able to go to their home
district and say, I did what was right for you today. I did what was
right for you, your children, and your grandchildren. I did what was
right for America.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
Before yielding to Mr. Lynch, I just want to say one thing. I
listened to the gentleman, and I have the utmost respect for him. But I
remind him that this is American jurisprudence that has had the concept
of ``innocent until proven guilty'' for as long as he just talked
about.
Mr. KELLY. Will the gentleman yield?
Mr. CUMMINGS. I just want to finish this. I listened to you very
carefully. You had an outstanding speech, but I want to just make sure
we're clear on something.
The senior executives suspected right now of criminal activity may
already be removed or placed in indefinite suspension without pay. We
need to focus on improving agency implementation.
You talk about the Neely case. Rather than passing legislation that
would deprive employees of their due process rights--I do want to keep
in mind that there is a little thing called the Constitution of the
United States of America that every 2 years we come and swear we're
going to uphold. Part of that Constitution is about due process, and
that's what we are trying to adhere to here.
I think we have to be very careful when we start looking at just
individual cases. We're making legislation for Federal employees
throughout this country, and I just want to provide some caution there.
I now yield such time as he may consume to the distinguished
gentleman from Massachusetts (Mr. Lynch).
Mr. LYNCH. I thank the gentleman for yielding.
Mr. Speaker, first of all, I want to say that I have the utmost
affection and respect for the gentleman from Pennsylvania. He and I are
friends. But I must say that he's wrong on this case.
It's ironic that you choose James Madison as the one person that you
rely upon in your argument, because it was James Madison that actually
drafted the due process clause. He was the one that took the
recommendations from the delegates from New York and actually drafted
the text. He made his own amendments to the due process clause that we
today rely upon to protect constitutional rights.
Let me also talk about the Senior Executive Service in our Federal
government. Those are the employees that rise to the top. They do after
years of serving in many cases because of their expertise in protecting
our veterans at
[[Page H5200]]
the VA hospitals. But the Senior Executive Service is an experienced
corps of dedicated Federal employees who provide institutional
stability and continuity across administrations, and they serve as a
vital link between political appointees, frontline managers, and the
Federal workforce. We don't want each administration coming in and
saying for no reason, Well, I'm a Republican. I'm going to fire all the
Democratic executives in the Senior Executive Service. We don't want a
Democrat coming in and saying, I'm going to fire all these Republicans
who are in senior positions.
One of the protections we provide is due process of law. Despite the
important role that Senior Executive Service employees play in the
Federal Government, this bill that's on the floor today would deprive
these employees of the basic due process rights available to them under
existing law. The legislation would give agency heads the broad
discretion to just fire people, fire senior executives that are
suspected of misconduct, and employees would bear the burden of proving
their reinstatement. This is called ``ready, fire, aim.'' It would
allow firing employees for basically any reason that in the discretion
of the senior management is required. As the gentleman from Maryland
and I--and I congratulate him on his advocacy here--it presumes guilt
before we get all the facts. That is completely inconsistent with the
principles of our Constitution.
I am deeply concerned that this legislation may cause irreparable
reputational damage if an individual is wrongly accused and forced to
seek reinstatement. The person may eventually be vindicated, but the
damage to the individual's reputation, their financial stability, and
their career may be beyond repair. Moreover, there are effective tools
already existing to hold senior executives accountable for performance
and conduct issues. These disciplinary procedures provide very simply,
30 days' notice. You have to have notice why you're fired in writing.
That's not a lot to ask, 30 days' notice of why you're being fired.
This is what you're eliminating from the law right now. It gives that
person 30 days to scramble to get a representative to put a case
together to say, No, these aren't the facts. It allows them, if they
are able, to get an attorney or a representative, which includes the
right to that written decision and the right to appeal to the Merit
Systems Protection Board.
Those are the basic due process rights that James Madison has
supported. You're right, James Madison is still here today. He's on
this side. He's on the side of due process. He doesn't want a kangaroo
court. He wanted protections for constitutional rights, and he thought
it was so important that he incorporated those in the text of the
Constitution.
During committee consideration of H.R. 2579, I offered an amendment
to apply these existing due process protections to the expedited
removal provisions in the bill, but my amendment was rejected. For
these reasons--and I say again I have great respect for the gentleman
from Pennsylvania--I urge my colleagues to vote against this measure in
support of due process, in support of the principles that James Madison
advocated. Also, I want to say the previous bill that the gentleman
talked about earlier that we voted on, 410 votes, that had the ``ready,
aim, then fire'' provision.
{time} 1415
It gave the due process rights. The bill that we supported in the
previous session, it wasn't exactly the same, as the gentleman
acknowledged; it had due process rights. It allowed employees to have
30 days to have a written decision to know what the charges were
against them and to respond. So this is a very, very different bill
than passed the House overwhelmingly in the previous session.
This bill does not allow the employee the 30 days' notice of what
they did wrong. It does not allow them to defend themselves against the
charges. It does not allow them to have a representative. It does not
allow them the ability to protect their reputation in real-time. This
bill fires them first and then asks questions later. For those reasons,
it should be rejected.
Mr. MEADOWS. Mr. Speaker, how much time do I have remaining?
The SPEAKER pro tempore (Mr. Marchant). The gentleman has 8\1/2\
minutes remaining.
Mr. MEADOWS. Mr. Speaker, I yield such time as he may consume to the
gentleman from Pennsylvania (Mr. Kelly).
Mr. KELLY of Pennsylvania. Mr. Speaker, my colleagues on the other
side, I do have great respect for both of the gentlemen. It is not a
question of respect for other Members of Congress. The question is: How
much respect do we have for American taxpayers?
I think sometimes we get too confused right here about the collegial
atmosphere that has to exist. You know, if you don't talk nicely to
each other, it can cause a problem. And I understand that. But we know
each other. I have shared some very emotional moments with Mr. Cummings
when he lost his nephew. I understand that. Steve--Mr. Lynch--and I
know each other. It's not about the spin. Nobody is losing their due
process under this. You know that.
Again, I refer back to page 8, lines 15 through 17:
An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title.
There is no reason for us to be having a conversation that again
divides the Nation; and it divides people because we constantly want to
make sure that everybody understands that one party is for one type of
philosophy, the other party is not. You know, they don't ever want to
take care of everybody.
I'm talking about the American taxpayer here. I'm talking about the
agencies.
Mr. Cummings and I sat and listened to the people from the GSA; and
when we asked them why are they placed on leave with pay when there is
obviously an investigation going on, you knew about it. The IG came to
you and told you that, in spite of that, you still bonused this
gentleman. They gave him extra money for doing exactly what he was
being investigated for.
And we said: My goodness, why would you do that?
And they said: Because we don't have any tools to do anything about
it. We don't have the mechanism to do that.
Why is it that we have to constantly widen the gap between what's
right for America and what's just flat out right?
This isn't about Democrats and Republicans trying to protect our
friends who work here in the government. Of course I want to protect
them. And I will guarantee you that if this is going to pass today, I
guarantee you will not see a mass exodus of people who work for the
government saying, oh, my gosh, let me get my resume together; I've got
to get out of here.
They're not leaving. And why aren't they leaving? Because these are
good jobs. We're talking about the senior executives. We're not talking
about every gal and guy. We're not talking about those in uniform who
protect us. We're talking about the senior executives, those to whom we
have given the most responsibility and authority. We're talking about
giving them a tool to hold those who work under them responsible. They
don't have it now.
I don't want to walk away or turn my back on people who work every
day for this government. These are darn good jobs. Please tell me, if
it's such a terrible place to work, why do so many people apply for
work?
Mr. LYNCH. Will the gentleman yield?
Mr. KELLY of Pennsylvania. No, I will not yield.
Mr. Lynch, we've been yielding for far too long, and I will be glad
to yield to you when I'm done here, and that's up to the chairman.
But I have to tell you, why do we constantly put this spin on to
divide this body?
If I were a manager and I were put in charge and given the
responsibility to do things, but then told, Look, you have the
responsibility, you better perform to the right level here, but by the
way, when you have people who are not acting appropriately, you don't
have any tool to change that. You don't have any way to reprimand them,
to call them forward.
It just doesn't make sense. And I'll tell you who it doesn't make
sense to. It doesn't make sense to all those folks I described before.
I've got people back in western Pennsylvania working two jobs. This is
mom and dad working a
[[Page H5201]]
job. Why? Because they have this tremendous ability to self-reliance,
and they know they have children they've got to take care of. They want
to feed them, they want to clothe them, they want to educate them. They
want to be part of the system that has made sense to so many people for
so long.
Why do people come to this country? My goodness, they come across the
ocean in inner tubes to try to get here. They crawl across the desert
to get here. They don't get here because they don't like us. They get
here because they love the opportunity.
All I want to do is give the managers of these agencies the same
tools that everybody else has. This is not about trying to make an
employee look bad. This is about holding an employee accountable. When
is it that we got to the point that accountability is a political
agenda? Really? Really?
And we're going to take any time we can get to try and make the other
party look bad, because I've watched here for 2\1/2\ years. It's not
enough to win the vote. You've got to make the other side look really,
really bad. It's not enough to say we just didn't agree on this and we
moved to something else. No, the point is to say, you know what, this
is how horrible these people are. They don't care about you. They don't
care about your kids or your grandchildren. They really want to hurt
you.
No, we've shared too much time together. I don't sit in any committee
with anybody, whether from our party or from your party, that says, I
came here to destroy America. They don't say that. They don't say, I
came here to divide America. They don't say that. They say, I came here
because I thought I had a calling and I want to make a difference.
This bill is so simple. It is so much common sense. Really, this is a
problem, to hold people accountable for a job they're not doing right?
We didn't strip them of anything in due process. They still have their
rights, everything. And it's not for everybody; it's for the senior
executives at the top. The top. That's all it's about.
So, Mr. Chairman, I've got to tell you, this is so common sense. It's
what we do in the private sector every day. I don't want it to become a
political battle over something that makes sense to the American
people.
The SPEAKER pro tempore. Members are reminded to address their
remarks to the Chair.
Mr. CUMMINGS. Mr. Speaker, how much time do we have?
The SPEAKER pro tempore. The gentleman from Maryland has 8 minutes
remaining.
Mr. CUMMINGS. I yield 3 minutes to the distinguished gentlewoman from
the District of Columbia (Ms. Norton).
Ms. NORTON. I thank the gentleman from Maryland for yielding.
You know, it has been sad to have to sit here for so long and hear
the Kafkaesque understanding of due process by the gentleman from
Pennsylvania. In a word, due process has to come before the sanction,
not after; before the loss of job, not after, or it means nothing.
Today, of course, I rise in strong opposition to H.R. 2579 that would
eliminate due process protections for senior executive servicemembers
by allowing agency heads, political appointees, for the first time
since the passage of the great civil service reforms in the early part
of the 20th century, to fire Federal employees without giving them
advance notice or an opportunity to address allegations against them
before they are dismissed.
This bill, in particular, gives real credence to the view that the
series of bills on the floor today are an attack on Federal employees.
H.R. 2579 would reverse the long-settled principle of ``innocent until
proven guilty'' to ``guilty until proven innocent.''
Employees could be immediately fired by the politically appointed
agency head. They could get their job back only by accepting the burden
of proof to prove their innocence. It's not enough that employees would
be notified of the reasons of their removal and would have 30 days to
respond. They're gone. They're fired immediately. No due process rights
like those currently in place: at least 30 days notice; representation
by an attorney; a written decision; a right to appeal to the Merit
Systems Protection Board.
The absence of due process and of standards that the political
appointee must use in making the decision to fire is nothing short of
breathtaking. Under this bill, the agency head, one person, one
political appointee, determines whether the employee knowingly acted in
a manner that--get this--``endangers the interest of the agency
mission.'' What could be broader than that? You could be fired for
anything under that standard.
One person decides whether the employee's removal is ``necessary in
the interest of the United States.'' Wow, let's rein that in somewhat.
One person decides that other procedures prescribed in other
provisions of law just can't be invoked; they're not good enough. There
you have it--judge and jury--exactly what the civil service system was
developed to avoid, exactly what the Constitution says we must avoid.
If you believe in the Constitution, it is important not to demagogue,
but rather to explain to the public why every State, local, and Federal
government puts employees--
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. CUMMINGS. I yield an additional 2 minutes to the gentlelady.
Ms. NORTON. I thank the gentleman.
Why is it that every unit of government puts employees they want to
fire, they know they want to fire them, on administrative leave with
pay while due process proceeds, even when the person is accused of
serious offenses? Because the employer, my friends, is the government.
That's the difference. The employee has certain due process rights that
the same employee would not have if the employer were a private
business. That is civics 101, gentlemen.
Justice Powell, writing in Arnett v. Kennedy about due process rights
of employees said:
Due process is conferred not by legislative grace, but by
constitutional guarantee.
This bill comes from a Republican House that requires that Members
state the constitutional basis for every bill introduced in this House.
This bill expresses a Republican frustration that Lois Lerner of the
IRS was placed on administrative leave with pay. Sorry folks, you're
not allowed to support the Constitution only when you like the results.
Let's defeat this ``prove your innocence'' departure from the
Constitution of the United States.
Mr. MEADOWS. Mr. Speaker, I continue to reserve the balance of my
time.
Mr. CUMMINGS. Mr. Speaker, I just want to say first of all that I
associate myself with the words of the gentlelady from the District of
Columbia. I think she said it quite well.
Mr. Speaker, we must be about the business of guarding this thing we
call the Constitution. We are here only for a moment--only for a
moment--and in that moment we have already been given a document by
which we should govern ourselves. It has been interpreted by courts
over and over again, and one of the things that has stood the test of
time is due process. That very due process, I have said many a time,
has allowed me to be a Member of this Congress of the United States and
so many others who would have never had an opportunity. And so no
matter when we are here, no matter what time we are here for, we must
guard it.
{time} 1430
Mr. Lynch was very clear when he talked about how we are in a
situation where we fire somebody first, and then suddenly we say, okay,
we're going to give them some due process.
Going back to Ms. Norton, due process comes before the firing. That's
the way it's supposed to be.
And we all care about every employee. We care about how every
American is treated, and that's what this argument is all about--
fairness.
Mr. Speaker, I reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I continue to reserve the balance of my
time.
Mr. CUMMINGS. How much time do we have, Mr. Speaker?
The SPEAKER pro tempore. The gentleman from Maryland has 2 minutes
remaining.
Mr. CUMMINGS. I yield 1\1/4\ minutes to the gentleman from
Massachusetts (Mr. Lynch).
Mr. LYNCH. I thank the gentleman, and I appreciate his advocacy.
Mr. Speaker, I do want to point out some inconsistencies in the
argument
[[Page H5202]]
by my friend from Pennsylvania. In the case of Mr. Neely and in the
case of Lois Lerner, under existing law, all that was required before
they fired either of those individuals is to give them 30 days' notice,
30 days' written notice of the charges against them, give them the 30
days to put together a defense or to offer their version of the facts.
That's all that was required, and then we could have fired them or
put them on administrative leave without pay. That was within the
discretion of GSA.
So when GSA tells Mr. Kelly they can't do anything, there's plenty
they could do. They could have taken both those employees, put them on
administrative leave without pay--talk about protecting the taxpayer.
I'm for that. They had the power to do that in these cases.
They could have taken both those employees, under current law, with
due process in place, put them both on administrative leave without
pay, and we could have protected the taxpayer. That was the discretion
on the part of the administration and the folks that made the decision
in that place. It was not a fault of the law.
But interestingly enough, it also protected us to have the second
version of the facts put forward to bring more light to this.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CUMMINGS. Mr. Speaker, I'm going to yield the 45 seconds we have
remaining to Mr. Lynch to close.
Mr. LYNCH. Think about this. That due process right would allow an
employee who might be the fall guy, it might be a person that they're
trying to fire to shut them up, it gives them an opportunity to come
before the public and say, while they're still in their job, to say,
no, that's not the way it went down.
Now, it might be to the benefit of the Republican, it might be to the
benefit of the Democrat, whatever position you have, whoever that
individual might be. But it brings truth, it brings facts, and it
brings the ability of that individual employee to protect themselves.
That's what we're asking for here, that 30 days' opportunity. And it
can be without pay. We can protect the taxpayer and still give due
process rights to our employees. This bill should be opposed for all
those reasons.
I thank the gentleman from Maryland (Mr. Cummings) for yielding.
Mr. CUMMINGS. Mr. Speaker, I yield back the balance of my time.
Mr. MEADOWS. Mr. Speaker, facts are a stubborn thing, and what we are
hearing today are a number of assertions that truly are not the facts.
Let me read from the bill, because the opposing arguments would be
that we can fire them for any particular reason, but that's not what
the bill says. The bill says we may remove an employee for serious
neglect of duty, misappropriation of funds--which, I might add, was the
case in point that we were just talking about--or malfeasance. And the
head of the agency has to know that it was knowingly done.
This gives just another tool in the toolbox. It doesn't do away with
due process. It doesn't do away with a number of the facts that we
already have today, but it adds another tool.
What it really does is allow our managers to manage. What a novel
concept. We're going to actually allow and trust Federal employees to
manage the people under them.
We have been in hearing after hearing that says, Well, why didn't you
do something about it? Why did you not address this? And they said,
Well, our hands are tied. We didn't have the tools to do it.
This bill, as Mr. Kelly has so eloquently put it, gives them the tool
to do exactly that. It doesn't do away with due process.
We've accepted amendments, three different amendments that protect
the rights of employees--they are embedded in this bill--and yet we
still find that my colleagues opposite want to say that they're not in
support of this.
I just find it just appalling that we can continue to allow employees
to stay on the taxpayers' dollars when we know that there has been
malfeasance, misappropriation of funds, and the neglect of duty.
With that, I encourage all my colleagues to support this particular
piece of legislation.
Mr. Speaker, I yield back the balance of my time.
Mr. GINGREY of Georgia. Mr. Speaker, I rise today as a proud
cosponsor of H.R. 2579, the Government Employee Accountability Act,
offered by my good friend Mr. Kelly of Pennsylvania.
I applaud this commonsense legislation that was initially developed
in response to a senior GSA employee orchestrating the infamous GSA
conference in Las Vegas that cost taxpayers $800,000. He was placed on
administrative leave with pay. Under current law, this is not only
permitted, but there is little other recourse. There is no current
mechanism for agencies to take away the pay of Senior Executive Service
(SES) employees under investigative review for misconduct. Rather,
employees can be placed on administrative leave or suspension, both
with the opportunity for pay.
Mr. Speaker, the necessity of the legislation before us today is
again highlighted by the recent scandals plaguing the IRS and its
targeting of conservative groups. Despite the continued emergence of
compelling facts detailing Ms. Lerner's involvement with discriminatory
targeting and her refusal to cooperate with Congressional
investigations, Ms. Lerner continues to draw a $180,000 salary from the
federal government. When she refused to resign, she was placed on
administrative leave, so rather than being punished for targeting
Americans based on their political beliefs, she is taking a well-paid
vacation on the taxpayer dime.
H.R. 2579 would authorize all federal agencies to place an employee
on investigative leave without pay if the employees conduct was serious
or flagrant. I believe that this legislation is critical in regaining
the trust of Americans. Paid leave is a slap on the wrist, and simply
does not sufficiently restore the public's trust that the federal
government will hold those responsible for serious misconduct
accountable.
Mr. Speaker, Americans deserve real answers and solutions to ensure
that high-ranking federal employees are reprimanded and held
responsible for unacceptable behavior. For that reason, I urge my
colleagues to join me in supporting H.R. 2579.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from North Carolina (Mr. Meadows) that the House suspend the
rules and pass the bill, H.R. 2579, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. CUMMINGS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
____________________