[Congressional Record (Bound Edition), Volume 162 (2016), Part 4]
[House]
[Pages 5112-5113]
[From the U.S. 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 
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

[[Page 5113]]

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.

                          ____________________