[Congressional Record Volume 162, Number 64 (Tuesday, April 26, 2016)]
[House]
[Pages H1983-H1984]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OFFICIAL PERSONNEL FILE ENHANCEMENT ACT
Mr. CHAFFETZ. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 4360) to amend title 5, United States Code, to provide that
a Federal employee who leaves Government service while under personnel
investigation shall have a notation of any adverse findings under such
investigation placed in such employee's official personnel file, and
for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4360
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 ``Official Personnel File
Enhancement Act''.
SEC. 2. RECORD OF INVESTIGATION OF PERSONNEL ACTION IN
SEPARATED EMPLOYEE'S OFFICIAL PERSONNEL FILE.
(a) In General.--Subchapter I of chapter 33 of title 5,
United States Code, is amended by inserting after section
3321 the following:
``Sec. 3322. Voluntary separation before resolution of
personnel investigation
``(a) With respect to any employee occupying a position in
the competitive service or the excepted service who is the
subject of a personnel investigation and resigns from
Government employment prior to the resolution of such
investigation, the head of the agency from which such
employee so resigns shall, if an adverse finding was made
with respect to such employee pursuant to such investigation,
make a permanent notation in the employee's official
personnel record file. The head shall make such notation not
later than 40 days after the date of the resolution of such
investigation.
``(b) Prior to making a permanent notation in an employee's
official personnel record file under subsection (a), the head
of the agency shall--
``(1) notify the employee in writing within 5 days of the
resolution of the investigation and provide such employee a
copy of the adverse finding and any supporting documentation;
``(2) provide the employee with a reasonable time, but not
less than 30 days, to respond in writing and to furnish
affidavits and other documentary evidence to show why the
adverse finding was unfounded (a summary of which shall be
included in any notation made to the employee's personnel
file under subsection (d)); and
``(3) provide a written decision and the specific reasons
therefore to the employee at the earliest practicable date.
``(c) An employee is entitled to appeal the decision of the
head of the agency to make a permanent notation under
subsection (a) to the Merit Systems Protection Board under
section 7701.
``(d)(1) If an employee files an appeal with the Merit
Systems Protection Board pursuant to subsection (c), the
agency head shall make a notation in the employee's official
personnel record file indicating that an appeal disputing the
notation is pending not later than 2 weeks after the date on
which such appeal was filed.
``(2) If the head of the agency is the prevailing party on
appeal, not later than 2 weeks after the date that the Board
issues the appeal decision, the head of the agency shall
remove the notation made under paragraph (1) from the
employee's official personnel record file.
``(3) If the employee is the prevailing party on appeal,
not later than 2 weeks after the date that the Board issues
the appeal decision, the head of the agency shall remove the
notation made under paragraph (1) and the notation of an
adverse finding made under subsection (a) from the employee's
official personnel record file.
``(e) In this section, the term `personnel investigation'
includes--
``(1) an investigation by an Inspector General; and
``(2) an adverse personnel action as a result of
performance, misconduct, or for such cause as will promote
the efficiency of the service under chapter 43 or chapter 75.
(b) Application.--The amendment made by subsection (a)
shall apply to any employee described in section 3322 of
title 5, United States Code, (as added by such subsection)
who leaves the service after the date of enactment of this
Act.
(c) Clerical Amendment.--The table of sections of
subchapter I of chapter 33 of title 5, United States Code, is
amended by inserting after the item relating to section 3321
the following:
``3322. Voluntary separation before resolution of personnel
investigation.''.
SEC. 3. REVIEW OF OFFICIAL PERSONNEL FILE OF FORMER FEDERAL
EMPLOYEES BEFORE REHIRING.
(a) In General.--Subchapter I of chapter 33 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 3330e. Review of official personnel file of former
Federal employees before rehiring
``(a) If a former Government employee is a candidate for a
position within the competitive service or the excepted
service, prior to making any determination with respect to
the appointment or reinstatement of such employee to such
position, the appointing authority shall review and consider
the information relating to such employee's former period or
periods of service in such employee's official personnel
record file.
``(b) In subsection (a), the term `former Government
employee' means an individual whose most recent position with
the Government prior to becoming a candidate as described
under subsection (a) was within the competitive service or
the excepted service.
``(c) The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this section.''.
(b) Application.--The amendment made by subsection (a)
shall apply to any former Government employee (as described
in section 3330e of title 5, United States Code, as added by
such subsection) appointed or reinstated on or after the date
that is 180 days after the date of enactment of this Act.
(c) Clerical Amendment.--The table of sections of
subchapter I of chapter 33 of title 5, United States Code, is
amended by adding at the end the following:
``3330e. Review of official personnel file of former Federal employees
before rehiring.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Utah (Mr. Chaffetz) and the gentlewoman from the Virgin Islands (Ms.
Plaskett) each will control 20 minutes.
The Chair recognizes the gentleman from Utah.
General Leave
Mr. CHAFFETZ. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Utah?
There was no objection.
Mr. CHAFFETZ. Mr. Speaker, I yield myself such time as I may consume.
The vast majority of Federal workers are patriotic, they are honest,
they are decent, they work hard, they show up early, they do what they
are supposed to do, and they are proud to serve their country and
provide their role in when they do. For that, we are very grateful.
But like any large group of people, there are some bad apples. If you
go through the barrel, you are going to find a few bad apples. We have
a responsibility to make sure that we weed those out. These individuals
must be treated fairly, but they must be held accountable. H.R. 4360 is
a bill that accomplishes this balance and that strengthens the
integrity of our civil service.
{time} 1800
Under the current system, a loophole allows Federal employees who are
[[Page H1984]]
guilty of serious, but not necessarily criminal, infractions to leave
Federal service before an investigation is completed and join a new
agency without that new agency ever becoming aware of those previous
issues. Unfortunately, in our work on the Committee on Oversight and
Government Reform, we have had some examples of this.
H.R. 4360 corrects this problem by requiring a notation to be made in
the employee's official personnel file if an investigation leads to an
adverse finding against that person even if the employee has already
resigned. For example, under the current system, Federal employees who
commit some form of misconduct or poor performance could resign from
their positions and escape accountability.
This is exactly what occurred at the United States Patent and
Trademark Office. As part of an investigation, the Department of
Commerce, Office of the Inspector General requested that a patent
examiner attend a voluntary interview with the Office of the Inspector
General. However, 2 hours before the interview with the OIG, the patent
examiner resigned. In an instant message with a coworker, the examiner
explained that the union recommended that he resign in order to have a
clean slate, with no record of conduct or performance issues, if he
applied to work for another agency.
We cannot continue to have a system that creates loopholes for an
individual to elude accountability by simply having to submit a piece
of paper on a napkin--or something as simple as that--and writing, ``I
hereby resign,'' and then keeping his record clean so he can get
another job.
Mr. Speaker, another example is of a similar event that unfolded with
an Interior Department employee who was under investigation for lying
about his education credentials. After being interviewed by the
Interior Department's Office of Inspector General, this individual
resigned from the Interior and later joined the Census Bureau; but when
he went over to the Census Bureau, the Census Bureau was unaware of the
history until well after it had hired this person.
Mr. Speaker, H.R. 4360 remedies the scenarios I just discussed,
thereby helping to protect agencies from making employment hires when
having incomplete pictures of the individuals' backgrounds. This has
happened on several occasions. It is almost disappointing that one has
to go forward and legislate this, but given that it is happening, it is
the responsible thing to do, and we have come together in a good,
bipartisan way to make this happen.
Specifically under this legislation, separated employees will have
notations made in their official personnel files if they resign while
under investigation and if those investigations lead to adverse
findings. Additionally, if the individuals apply for other positions in
the Federal Government, those notations will follow them as agencies
will now be required to examine the personnel files of former Federal
employees during the hiring process.
Bad actors should not be able to resign from government service with
clean slates and effectively dupe another agency that will then be
hiring them. However, this bill also ensures that separated employees
are provided the opportunity to contest the findings of an
investigation. I think that is a fair and just way for them to be able
to clean their records if they think that they have cases to be made.
By working closely with my Democratic colleagues, we were able to build
a process into this legislation that gives former employees a mechanism
by which to fairly present their cases in the event an investigation
leads to an adverse finding.
Mr. Speaker, it is also important to note that H.R. 4360 does nothing
to diminish the rights or protections that are afforded to
whistleblowers. This is a bill to prevent individuals from maneuvering
within the Federal Government in order to hide their misconduct. It is
that simple. I urge its passage.
I reserve the balance of my time.
Ms. PLASKETT. Mr. Speaker, I yield myself such time as I may consume.
H.R. 4360, the Official Personnel File Enhancement Act, addresses a
legitimate concern of employees who resign their positions during
pending investigations or adverse disciplinary actions and then reapply
for employment elsewhere in the Federal Government.
I think we can agree that measures need to be taken to prevent such
incidents from happening in order to protect the integrity of the
Federal workforce.
I thank Chairman Chaffetz for working with the minority and,
particularly, for working with Congressman Connolly from Virginia to
address our concerns with the original bill.
The introduced version of this legislation would have allowed an
agency to put a permanent notation of an investigative finding in an
employee's file without giving the employee an opportunity to respond.
The bill, as reported, would preserve the principles of due process
that help to protect our Federal employees from arbitrary acts and
political influence. It would provide a former employee with notice and
opportunity to respond to an adverse investigative finding before a
notation is placed in the individual's personnel file. The legislation
also gives the individual the right to appeal the agency's decision to
the Merit Systems Protection Board, which we believe is the appropriate
place for that.
These due process protections are consistent with our Constitution
and with the fundamental American principle that a person is innocent
until proven guilty.
I understand that some concerns have been raised regarding how the
legislation would be implemented. We hope to address those concerns as
the bill moves forward in the legislative process.
I urge my colleagues to join me in supporting H.R. 4360.
Mr. Speaker, I yield back the balance of my time.
Mr. CHAFFETZ. Mr. Speaker, I yield myself such time as I may consume.
I urge the passage of H.R. 4360. I believe this is a good bill. We
worked in a good, bipartisan way. It does make the system more fair and
it makes it more accountable. It makes sure, for those who have adverse
actions, that they can't simply skirt away from their responsibilities.
It does hold people accountable. To that effect, it is a good bill, and
I urge its passage.
I yield back the balance of my time.
Mr. ABRAHAM. Mr. Speaker, I rise today in support of H.R. 4360, the
Official Personnel File Enhancement Act.
As a member of the House Veterans Affairs Committee, myself and other
committee members are constantly reading reports of and investigating
instances of employee misconduct and performance shortcomings. Yet too
often, these investigations come up empty because the employee decided
to resign or otherwise leave federal service before the investigation
is over, thereby ending the investigation. I cannot tell you how
frustrating this is.
These investigations must be completed, and any employee seeking to
return to federal service must have the results of that investigation
as a part their record. We owe it to the American taxpayer to ensure
that the federal government only hires the most qualified and honorable
employees. H.R. 4360 will allow that to happen.
I urge my colleagues to support this bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Utah (Mr. Chaffetz) that the House suspend the rules and
pass the bill, H.R. 4360, 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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