[Congressional Record Volume 160, Number 132 (Tuesday, September 16, 2014)]
[House]
[Pages H7591-H7594]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT

  Mr. MEADOWS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 5169) to amend title 5, United States Code, to enhance 
accountability within the Senior Executive Service, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 5169

       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 
     Accountability Act''.

     SEC. 2. BIENNIAL JUSTIFICATION OF POSITIONS.

       Section 3133(a)(2) of title 5, United States Code, is 
     amended by inserting after ``positions'' the following: ``, 
     with a justification for each position (by title and 
     organizational location) and the specific result expected 
     from each position, including the impact of such result on 
     the agency mission,''.

     SEC. 3. EXTENSION OF PROBATIONARY PERIOD.

       (a) In General.--Section 3393(d) of title 5, United States 
     Code, is amended by striking ``1-year'' and inserting ``2-
     year''.
       (b) Conforming Amendment.--Section 3592(a)(1) of such title 
     is amended by striking ``1-year'' and inserting ``2-year''.

     SEC. 4. MODIFICATION OF PAY RETENTION FOR SENIOR EXECUTIVE 
                   SERVICE MEMBERS REMOVED FOR UNDER PERFORMANCE.

       Section 3594(c)(1)(B) of title 5, United States Code, is 
     amended to read as follows:
       ``(B)(i) any career appointee placed under subsection (a) 
     or (b)(2) of this section shall be entitled to receive basic 
     pay at the highest of--
       ``(I) the rate of basic pay in effect for the position in 
     which placed;
       ``(II) the rate of basic pay in effect at the time of the 
     placement for the position the career appointee held in the 
     civil service immediately before being appointed to the 
     Senior Executive Service; or
       ``(III) the rate of basic pay in effect for the career 
     appointee immediately before being placed under subsection 
     (a) or (b) of this section; and
       ``(ii) any career appointee placed under subsection (b)(1) 
     of this section shall be entitled to receive basic pay at the 
     rate of basic pay in effect for the position in which placed; 
     and''.

     SEC. 5. REQUIREMENT THAT PERFORMANCE REQUIREMENTS BE 
                   ESTABLISHED IN ADVANCE.

       Section 4312(b)(1) of title 5, United States Code, is 
     amended--
       (1) by striking ``on or'' and inserting ``not later than 30 
     calendar days''; and
       (2) by inserting ``in writing'' after ``communicated''.

     SEC. 6. AMENDMENTS TO ADVERSE ACTION PROVISIONS WITH RESPECT 
                   TO CAREER APPOINTEES IN THE SENIOR EXECUTIVE 
                   SERVICE.

       (a) Suspension for 14 Days or Less for Senior Executive 
     Service Employee.--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 period 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; and''.
       (b) Modification of Cause and Procedure for Suspension and 
     Termination.--
       (1) In general.--Section 7543 of title 5, United States 
     Code, is amended--
       (A) in subsection (a), by striking ``misconduct,'' and 
     inserting ``such cause as would promote the efficiency of the 
     service, misconduct,'';
       (B) in subsection (b)(4), by adding at the end before the 
     period the following: ``, but no later than 30 days after the 
     date that the employee's answer was received under paragraph 
     (2)'';
       (C) by redesignating subsections (c), (d), and (e) as 
     subsections (d), (e), and (f), respectively;
       (D) by inserting after subsection (b) the following:
       ``(c) An agency head may extend the deadline for an 
     employee to answer under subsection (b)(2) or the deadline 
     for the agency to issue a written decision under subsection 
     (b)(4) for no more than 30 days each. Any extension by the 
     agency head under this subsection must be in writing and 
     document the reasons for granting the extension.''; and
       (E) by adding at the end the following:
       ``(g)(1) With respect to an employee subject to removal 
     under this subchapter, if a final order or decision is issued 
     in favor of the agency by the agency, the Merit Systems 
     Protection Board, or the applicable reviewing court under 
     section 7703, the employee--
       ``(A) shall pay to the agency an amount equal to any pay 
     received by the employee during the period beginning on the 
     date that the employee received notice under subsection 
     (b)(1) and ending on the date of such final order or 
     decision; and
       ``(B) have removed from such employee's credit any annual 
     leave accrued during such period.
       ``(2) Paragraph (1) shall apply only to an employee who, 
     during the period described in paragraph (1)(A), is placed on 
     administrative leave or any other type of leave whereby the 
     employee is in a status without duties but with pay.''.
       (2) Conforming amendments.--Subchapter V of chapter 35 of 
     title 5, United States Code, is amended--
       (A) in section 3593--
       (i) in subsection (a)(2), by striking ``misconduct,'' and 
     inserting ``such cause as would promote the efficiency of the 
     service, misconduct,''; and
       (ii) in subsection (b), by striking ``misconduct,'' and 
     inserting ``such cause as would promote the efficiency of the 
     service, misconduct,''; and
       (B) in section 3594(a), by striking ``misconduct,'' and 
     inserting ``such cause as would promote the efficiency of the 
     service, misconduct,''.

  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 
may have 5 legislative days within which to revise and extend their 
remarks and 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.
  Congress looks to the Senior Executive Service, or ``SES'' as we 
refer to it, to provide leadership so that the government may 
successfully deliver services to the American people.
  A 1978 law creating the SES intended it to be an elite corps of 
leaders serving just below the high-level Presidential appointees. The 
roughly 8,000 SES members are spread across government agencies and are 
intended to be that link between the political appointees and agencies' 
career workforce.
  In a budget-constrained environment, senior executives must be good 
stewards of the taxpayer dollars so citizens receive the best value for 
their money. Unfortunately, the Oversight Committee's investigations 
have, time and time again, identified SES members embroiled in agency 
scandals. This has created a need to restore the public confidence by 
increasing accountability and performance within the government's 
executive corps.
  In February of 2012, the committee began investigating allegations 
that the Internal Revenue Service inappropriately scrutinized certain 
applicants who were seeking tax-exempt status. Documents and 
information showed that SES member Lois Lerner, the Director of the 
IRS' exempt organization unit, was extensively involved in the 
targeting of conservative groups' tax-exempt organizations while 
working to maintain a veneer of objective enforcement.
  In April of 2012, the committee began investigating SES member Jeff 
Neely

[[Page H7592]]

for the excessive, wasteful and, in some cases, impermissible waste of 
taxpayer dollars associated with the GSA conferences, at a luxury 
resort in Las Vegas.

                              {time}  2015

  Mr. Neely directed those planning the conference to make it over the 
top; thus it came as no surprise when photos surfaced of Mr. Neely 
relaxing in a Las Vegas hot tub on the taxpayers' dime.
  Senior Executive Servicemembers also chose to conceal problems within 
the VA health care system. With more than 20 veterans' deaths linked to 
substandard care, the work of the VA inspector general and the 
Veterans' Affairs Committee, under Chairman Miller, paints a very 
disturbing picture.
  In response to all of this, H.R. 5169 gives agencies the tools to 
better manage their senior executives. The bill eliminates a provision 
in the current law that allows an executive removed for performance and 
placed in a new Federal job to retain their executive salary. I might 
add that that averages $161,000.
  The bill makes senior executives subject to suspensions without pay 
for less than 2 weeks instead of a simple reprimand or admonishment in 
the same manner as frontline employees would receive. The bill makes 
senior executives accountable for conduct contrary to the efficiency of 
the Federal service.
  The bill extends the probationary period for senior executives from 1 
year to 2 years, and, if used properly, that probationary period gives 
agencies an effective tool to ensure that executives are productive. If 
executives are not performing in an acceptable level, they will be 
terminated.
  The bill ensures that senior executives receive their performance 
plans--the foundation of accountability for poor and high performance--
at least 30 days in writing before the appraisal cycle begins.
  Mr. Speaker, following the committee's consideration, we have worked 
on a bipartisan basis to address the concerns of the minority.
  First, the bill before the House today reflects the adoption of the 
amendment offered and withdrawn at the markup of the bill by the 
Delegate from the District of Columbia and maintains a requirement for 
agencies to provide 30 days' advanced notice to senior executives 
facing termination.
  Second, the bill requires agencies to make a decision on termination 
and other disciplinary actions within 30 days of receiving the 
employee's response to that proposed action.
  Finally, the bill ensures that senior executives fired for misconduct 
return any salary and leave accrued while on nonduty status. This means 
that the executive retains his or her avenues to appeal but, in the 
end, if terminated, is required to make the taxpayer whole.
  Combined, these changes bring needed accountability to the Federal 
Government's executive leadership core.
  I urge the Members of the House to support this measure, joining me 
in providing agencies additional tools to address instances where 
senior government officials are engaging in behavior contrary to the 
principles of public service.
  I reserve the balance of my time, Mr. Speaker.
  Mr. CUMMINGS. I yield myself such time as I may consume.
  Mr. Speaker, I want to thank Oversight Committee Chairman Issa and 
the sponsor of H.R. 5169, the gentleman from Michigan, Tim Walberg, for 
working with my Democratic colleagues Representatives Lynch and Norton 
to address some of our concerns.
  Although much progress has been made in improving this legislation, I 
believe that there remains sufficient constitutional issues to cause 
concern, and, therefore, I must reluctantly oppose H.R. 5169, the 
Senior Executive Service Accountability Act.
  I understand that this legislation was meant to address recent 
allegations of misconduct and management failures by senior executives 
at various agencies. While the allegations are quite troubling, I don't 
believe they justify governmentwide changes to the Senior Executive 
Service that will bring senior executives much closer to becoming ``at-
will'' employees.
  I am concerned that the provisions in this bill that would extend the 
probationary period for senior executives from 1 to 2 years and 
authorize suspensions for less than 14 days would give agency heads and 
political appointees the opportunity to terminate or suspend career 
senior executives for politically motivated reasons, and it is a very 
real possibility that this would go unchecked simply because there is 
no third-party review of an agency's actions under these circumstances.
  I fear that this could result in the politicization of the Federal 
Government's career senior executive core which would undermine the 
very protections against political patronage and corruption instituted 
under the Pendleton Civil Service Reform Act of 1883.
  I am also deeply troubled by the clawback provision in this 
legislation which would require an SES member who has been removed from 
Federal service to pay back the salary and accrued leave he or she 
received during the period pending removal.
  I think it is highly likely that the courts and the Merit Systems 
Protection Board would construe this clawback provision in the same way 
they construe involuntary or enforced leave.
  The Federal Circuit Court of Appeals and the MSPB have held that the 
imposition of involuntary or enforced leave constitutes a constructive 
suspension, requiring an agency to provide procedural due process to 
the employee before placing him or her on such leave status. These 
procedural rights must include notice, an opportunity to respond, an 
agency decision, and appeal rights.
  Although this clawback requirement is limited to those senior 
executives who were placed on some form of leave with pay but without 
duties, they would never have been given the chance to challenge the 
agency's decision; moreover, the practical and real effect of the 
clawback provision is that the senior executive is removed from Federal 
service upon notice of removal which is, in essence, ``at-will'' 
employment.
  For these reasons, I urge my colleagues to join me in opposing H.R. 
5169; and, with that, I reserve the balance of my time.
  Mr. MEADOWS. Mr. Speaker, I yield as much time as he may consume to 
the gentleman from the State of Michigan (Mr. Walberg), my 
distinguished colleague who is the author of this piece of legislation.
  Mr. WALBERG. I thank the gentleman from North Carolina for yielding 
to me and also thank him for his comments on this legislation. He laid 
it out extremely well.
  Mr. Speaker, Congress expects the Senior Executive Service to provide 
leadership so the Federal Government may successfully fulfill their 
obligations to the American people. That is what it is all about. We 
serve at their will and for their purpose and so does the Senior 
Executive Service.
  We also look to senior leaders to be good stewards of taxpayer 
dollars so citizens can have confidence that their hard-earned tax 
dollars are being utilized sensibly.
  Unfortunately and especially in light of the numerous scandals at the 
IRS and Veterans Administration perpetuated by senior executive branch 
officials who let things happen and get out of control, we need to take 
legislative action to restore public confidence and increase 
accountability and performance within the Senior Executive Service.
  The bill I have introduced, the Senior Executive Service 
Accountability Act, gives agencies commonsense tools to hold senior 
leaders more accountable for their taxpayer-funded work. Let me make 
this clear: the bill will make it easier to remove officials who have 
been found to have engaged in misconduct.
  Specifically, it eliminates the current loophole that allows an 
executive who has been removed for poor performance and placed in a new 
Federal job from retaining their executive salary. It promotes fairness 
to make SES employees subject to the same employment standards as the 
employees they supervise.
  It provides greater transparency on the number of senior leaders at 
each agency and their exact job requirements. It limits the amount of 
time an agency has to finalize its decision on whether to terminate an 
employee who has engaged in misconduct, thereby

[[Page H7593]]

preventing bad actors from receiving their paychecks for months after 
they were found to have committed acts of misconduct.
  Having said that, Mr. Speaker, I ask for the support of my colleagues 
on H.R. 5169.
  Mr. CUMMINGS. Mr. Speaker, I will continue to reserve the balance of 
my time.
  Mr. MEADOWS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Ohio (Mr. Jordan).
  Mr. JORDAN. I thank the gentleman for yielding, and I thank the 
gentleman from Michigan for his bill.
  Mr. Speaker, this bill is about accountability, accountability for 
Senior Executive Service people, people like Lois Lerner.
  The ranking member of the committee who I have a great deal of 
respect for stated in his opening comments that he is nervous about 
this legislation because it might ``politicize senior government 
officials.'' Well, that is what we have now.
  I mean, what could be more political than a high-ranking official at 
the Internal Revenue Service targeting people who disagreed with her 
political views? This is all about holding people accountable who do 
the very things the ranking member talked about.
  We need this legislation because, Lord knows, the Justice Department 
is not doing their job. They are not holding anyone accountable. I 
mean, think about this fact pattern: you have got the FBI leaking to 
The Wall Street Journal in January of this year that no one is going to 
be prosecuted in the IRS scandal.
  You have got the President's now famous remark on Super Bowl Sunday, 
on national television, where he says:

       There is no corruption here, not even a smidgen.

  Talk about prejudging the outcome of a case when you have the 
highest-ranking official in the executive branch, and, of course, we 
have now--we have known about for several months--the lead attorney at 
the Justice Department on this case, Barbara Bosserman, who gave $6,750 
to the President's reelection campaign and the Democratic National 
Committee; so, of course, we need something like this because the 
Justice Department isn't going to hold anyone to account.
  Now, there is one bright spot, Mr. Speaker. This House in a 
bipartisan fashion told the Attorney General that we need a special 
prosecutor. Every single Republican voted for that measure. More 
importantly, 26 Democrats said, This is so egregious; this is so wrong. 
We not only need Mr. Walberg's legislation, but we need a special 
prosecutor in the Justice Department to hold people to account.
  When I talk with folks back home--every single day I am out and 
about, they walk up to me. ``Someone needs to be held to account for 
systematically targeting our most fundamental right, our First 
Amendment right to speak out in a political fashion against our 
government. That was targeted, and people need to be held to account 
for it.''
  That is why I applaud the gentleman from North Carolina for his work 
on the committee and the gentleman from Michigan for sponsoring this 
great piece of legislation.
  Mr. CUMMINGS. I will continue to reserve the balance of my time.
  Mr. MEADOWS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Virginia (Mr. Goodlatte), the chairman of the Judiciary Committee.
  Mr. GOODLATTE. Mr. Speaker, I thank the gentleman from North Carolina 
for his leadership on this issue and managing this bill, and I thank 
the gentleman from Michigan for his leadership and introduction of this 
legislation.
  Mr. Speaker, the bills on the floor this evening represent our 
ongoing effort to get to the bottom of the IRS' targeting effort of 
innocent American citizens on the basis of their political beliefs and 
to ensure that such malfeasance never happens again.
  As I have stated repeatedly over the past year, it is imperative that 
we find out who ordered the targeting, when the targeting was ordered, 
and why.
  I commend my colleagues on the Oversight and Government Reform and 
Ways and Means Committees for their tireless pursuit of justice for the 
American people.
  The Judiciary Committee has been an active partner in this effort. On 
May 15, 2013, Attorney General Eric Holder promised me and Judiciary 
Committee members that he would conduct a fair, impartial investigation 
of the IRS targeting matter.
  The Attorney General made his famous pledge that:

       This will not be about parties . . . this will not be about 
     ideological persuasions . . . and anyone who has broken the 
     law will be held accountable.

  Unfortunately, that appears to be where the administration's 
commitment to pursuing this investigation ended. On May 7, 2014, 
following a year of no apparent progress in the investigation, the 
House passed H. Res. 565, calling on the Attorney General to appoint a 
special counsel to investigate the IRS targeting of conservative 
groups.

                              {time}  2030

  That resolution, which laid out in detail the case for a special 
counsel, passed by a bipartisan vote of 250-168. Significantly, 26 
Democrats joined in calling on the Attorney General of the United 
States to appoint an independent special counsel.
  Since H. Res. 565 passed the House, other events have bolstered the 
already solid case for the appointment of a special counsel to 
investigate this matter. Incredibly, on June 13, the IRS announced that 
it had ``lost'' an untold number of emails belonging to Lois Lerner 
which were sought by congressional investigators. The ``lost'' emails 
covered the period between January 1, 2009, and April 2011, a period 
when the IRS' targeting of conservative groups was occurring regularly. 
How convenient.
  Not 2 weeks ago, the IRS announced that it had also lost emails from 
five other employees involved in congressional investigations, 
including two agents in the supposedly ``rogue'' Cincinnati office. 
Again, how convenient.
  On July 30, the Judiciary Committee held a hearing on the need for a 
special counsel to probe the IRS matter.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. MEADOWS. I yield the gentleman 1 additional minute.
  Mr. GOODLATTE. At that hearing, we heard testimony that the Justice 
Department had demonstrated it ``can no longer fairly and justly 
oversee'' any further investigations into the ongoing IRS targeting 
scandal and the ``only opportunity for justice'' lies with an 
independent special counsel.
  Unfortunately, Mr. Speaker, the Obama administration has repeatedly 
demonstrated its unwillingness to work with congressional investigators 
to ensure we all know the full story behind the IRS' targeting of 
conservative groups. Their attempt to pull the wool over the American 
peoples' eyes speaks volumes.
  Mr. Speaker, I urge my colleagues to join me in support of our 
ongoing efforts to uncover the truth and ensure accountability for the 
IRS' targeting of conservative groups. I commend my colleagues for 
bringing these important bills to the floor, and I urge my colleagues 
to join me in voting for them.
  Mr. CUMMINGS. Mr. Speaker, I continue to reserve the balance of my 
time.
  Mr. MEADOWS. Mr. Speaker, I yield as much time as he may consume to 
the gentleman from Michigan (Mr. Walberg).
  Mr. WALBERG. Mr. Speaker, I thank the gentleman from North Carolina 
for allowing me the opportunity to make a few closing comments on this 
issue that I wouldn't have introduced if I didn't feel it was 
important.
  Senior executives have the opportunity to lead, to set policy, and to 
expand capabilities at their agency. This is a tremendous opportunity 
and privilege, a privilege of service we must not take lightly.
  Now, I hasten to quickly state that a majority of Federal workers, 
including senior executives, are hardworking public servants doing the 
job that they have been asked to do, and I want to recognize and thank 
those hardworking men and women. Unfortunately, the recent scandals 
that we have talked about, like those at the VA and the IRS, have 
shined a light on those who have abused their position.
  Lois Lerner certainly abused her position, and American taxpayers 
will never understand how Lois Lerner was

[[Page H7594]]

placed on administrative leave on May 23, 2013, and then retired 4 
months later on September 23, 2013, successfully avoiding termination 
after she acknowledged the IRS wrongfully scrutinized conservative 
groups for years. Ms. Lerner continued to receive a full salary during 
this time, roughly $60,000, for which the average American would have 
to work 15 months to earn.
  Then members of our Oversight and Government Reform Committee know 
the full story, the story of the so-called secret agent man who was 
allowed for years to not show up to his department work under the ruse 
of being a CIA agent. There was an unbelievable breakdown in the senior 
executive oversight, I might state.
  Now, the American people need to have confidence that these 
executives are acting honestly and responsibly, Mr. Speaker. The Senior 
Executive Accountability Act is an attempt, an important attempt, an 
important step towards holding bad actors accountable for their actions 
in restoring the public trust.
  Mr. Speaker, I ask my colleagues for their support of H.R. 5169.
  Mr. CUMMINGS. Mr. Speaker, may I ask how much time remains?
  The SPEAKER pro tempore. The gentleman from Maryland has 16 minutes 
remaining.
  Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we do oppose this legislation. We understand the intent 
of the sponsor, and we applaud him for his efforts. I think that we 
have to be very, very careful with people's constitutional rights I 
have stated in my opposition.
  With that, Mr. Speaker, I urge Members to vote against the 
legislation, and I yield back the balance of my time.
  Mr. MEADOWS. Mr. Speaker, I am willing to close with just a few 
remarks.
  Mr. Speaker, perhaps the IRS and the scandals that have been 
surrounding that are not a big deal to address this piece of 
legislation. Perhaps a picture of the gentleman in a Las Vegas hot tub 
is not a reason to address this piece of legislation, but I can tell 
you that our veterans are, Mr. Speaker.
  Those facts that have been the headlines for far too long really are 
at the core of what we are as a body, that we must protect the men and 
women who have fought so valiantly for our country and for the 
freedoms. If we cannot hold our senior executives accountable for the 
sake of our veterans, then what good is there of any law?
  What we must do, Mr. Speaker, I urge my colleagues to join me in 
supporting this for the veterans of our country to make sure that there 
is more accountability on behalf of American taxpayers so that we, once 
again, can start to trust our government.
  With that, I yield back the balance of my time, Mr. Speaker.
  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. 5169, 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.

                          ____________________