[House Report 113-186]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    113-186

======================================================================



 
                 GOVERNMENT EMPLOYEE ACCOUNTABILITY ACT

                                _______
                                

 July 31, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2579]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred 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, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Committee Statement and Views....................................     4
Section-by-Section...............................................     5
Explanation of Amendments........................................     6
Committee Consideration..........................................     7
Roll Call Votes..................................................     7
Application of Law to the Legislative Branch.....................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Duplication of Federal Programs..................................     8
Disclosure of Directed Rule Makings..............................     8
Federal Advisory Committee Act...................................     8
Unfunded Mandate Statement.......................................     8
Earmark Identification...........................................     8
Committee Estimate...............................................     8
Budget Authority and Congressional Budget Office Cost Estimate...     8
Changes in Existing Law Made by the Bill as Reported.............     9
Minority Views...................................................    15

                               Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

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; and''.

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.
  ``(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 at the 
end 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 Service 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''.

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 2579 provides agencies with additional tools to hold 
Senior Executive Service (SES) employees accountable for their 
actions. The legislation allows an SES employee to be fired for 
neglect of duty, misappropriation of funds, or malfeasance, and 
gives agencies discretion to place SES employees on unpaid 
leave, while maintaining existing due process rights. The 
legislation responds to the Committee's review of numerous 
employees in the SES whose behavior is unacceptable, 
irresponsible, and in some instances, illegal. The bill 
represents an important step in ensuring senior leaders are 
held to a high standard, especially when their conduct is 
flagrant.

                  BACKGROUND AND NEED FOR LEGISLATION

    This Committee has uncovered numerous examples of high-
ranking government employees engaging in behavior contrary to 
the principles of public service, including those in the Senior 
Executive Service (SES) who frivolously spend taxpayer dollars 
on lavish and unnecessary conferences; those whose agency 
inappropriately targeted conservative groups seeking tax exempt 
status; and those whose leadership resulted in discrimination 
against veterans and retaliation against whistleblowers.
    Even when accused of serious wrongdoing, these individuals 
are typically placed on administrative leave with pay.
    Senior Executive Service employees serve in key leadership 
positions, and must be held accountable for individual and 
organizational performance. When SES employees engage in 
misconduct, they must be held to a high standard, especially 
when their conduct is flagrant.
    H.R. 2579 provides additional tools for agencies to use 
when their senior executives have engaged in misappropriation 
of funds, misconduct, neglect of duty, or malfeasance.

                          LEGISLATIVE HISTORY

    H.R. 2579 was introduced by Rep. Mike Kelly on June 28, 
2013. The legislation was marked up by the Committee on July 
24, 2013. There were several amendments adopted, which are 
described in this report.
    A version of this bill was adopted unanimously by this 
Committee last Congress. It passed the House by a vote of 402 
to 2 on December 19, 2012.

                           Section-by-Section


Section 1. Short title

    The short title of the bill is the ``Government Employee 
Accountability Act.''

Section 2. Suspension for 14 days or less for Senior Executive Service 
        employees

    Section 2 grants agencies discretionary authority to 
suspend without pay a member of the Senior Executive Service 
(SES) for 14 days or less. The provision makes SES employees 
subject to short-term suspensions in the same manner as those 
they supervise.

Section 3. Investigative leave and termination authority for Senior 
        Executive Service employees

    Section 3 establishes two new subchapters within chapter 75 
of title 5. The first subchapter provides agencies authority to 
place an SES employee on investigative leave. Investigative 
leave is defined as a temporary absence without duty for a 
period not to exceed 90 days, for disciplinary reasons.
    Under regulations prescribed by the Office of Personnel 
Management, the agencies may place an SES employee on 
investigative leave, with pay, for misconduct, neglect of duty, 
malfeasance, or misappropriation of funds. SES employees whose 
misconduct is determined to be serious or flagrant may be 
placed on investigative leave without pay.
    Following each 45-day period of investigative leave, the 
agency must review the investigation into the SES employee's 
conduct and describe the review to the House Committee on 
Oversight and Government Reform and Senate Committee on 
Homeland Security and Governmental Affairs.
    At the end of the period of investigative leave, the agency 
must: (1) remove the employee; (2) suspend the employee without 
pay; or (3) restore the employee to duty. The agency may extend 
the period of investigative leave for an additional 90 days.
    SES employees retain their existing due process rights 
afforded to them under chapter 75, including the right to 
appeal to the Merit Systems Protection Board.
    The second new subchapter allows for the removal of SES 
employees if the head of an agency: (1) determines that the 
employee acted in a manner that endangered the interest of the 
agency; (2) considers the removal to be in the best interests 
of the United States; and (3) determines that existing 
procedures prescribed in law cannot be invoked in a manner that 
the Secretary considers consistent with the efficiency of 
government.
    An agency is prohibited from using the expedited 
termination procedure to retaliate against an SES employee who 
has a pending claim of discrimination or a pending claim of 
whistleblower retaliation.
    Such an employee shall be given notice of the reasons for 
removal. Within 30 days after notice is given, the employee is 
entitled to submit to the head of the agency statements or 
affidavits to show why the employee should be restored to duty. 
The head of the agency shall respond in writing to that 
information, and may restore the employee back to duty.
    The decision of the head of the agency to remove the 
employee is final and may not be appealed or reviewed by an 
outside agency.
    If the head of an agency removes an employee, he or she 
shall notify Congress of that termination.
    Termination would not affect the right of the employee to 
seek other federal employment if they are otherwise eligible.

Section 4. Suspension of Senior Executive Service employees

    Section 4 allows for an SES employee to be terminated or 
suspended without pay for more than 14 days for 
misappropriation of funds. The SES employee is not entitled to 
30 days advance notice of the proposed termination or 
suspension without pay if a crime has been committed or if the 
employee's conduct is serious or flagrant.

Section 5. Misappropriation of funds amendments

    Section 5 makes conforming changes to reinstatement or 
placement of SES employees who misappropriate funds.

                       Explanation of Amendments

    The Committee adopted by voice vote an amendment in the 
nature of a substitute offered by Mr. Issa.
    The Committee adopted by voice vote an amendment offered by 
Mr. Cummings and Ms. Norton to prohibit an agency from using 
the expedited termination procedure to retaliate against an SES 
employee who has a pending claim of discrimination.
    The Committee adopted by voice vote an amendment offered by 
Mr. Connolly to prohibit an agency from using the expedited 
termination procedure to retaliate against an SES employee who 
has a pending claim of whistleblower retaliation.
    The Committee adopted by voice vote an amendment by Mr. 
Lynch that would change the threshold used by an agency head to 
discipline an employee using the new authorities in this Act.
    The Committee adopted by voice vote an amendment by Ms. 
Speier that makes several changes to the standard for immediate 
termination, allowing an agency to terminate an SES employee 
for serious neglect of duty, misappropriation of funds, or 
malfeasance if the agency determines the SES employee acted in 
a manner that knowingly endangers the interest of the agency 
mission.
    The Committee rejected by a vote of 17 ayes to 22 noes an 
amendment by Mr. Lynch that would prevent an agency head from 
terminating a Senior Executive Service employee without an 
administrative waiting period.

                        Committee Consideration

    On July 24, 2013, the Committee met in open session and 
ordered reported favorably the bill, H.R. 2579, as amended, by 
voice vote, a quorum being present.

                            Roll Call Votes

    One vote occurred during consideration of H.R. 2579--on the 
Lynch amendment to the Issa ANS (regarding an agency head 
terminating an SES employee without due process). The amendment 
was defeated by a vote of 17 ayes to 22 noes.
    Voting aye: Cummings, Maloney, Norton, Tierney, Clay, 
Lynch, Cooper, Connolly, Speier, Cartwright, Pocan, Duckworth, 
Kelly, Davis, Welch, Cardenas, and Lujan Grisham.
    Voting no: Issa, Mica, Turner, McHenry, Jordan, Chaffetz, 
Walberg, Lankford, Amash, Gosar, Meehan, DesJarlais, Gowdy, 
Farenthold, Hastings, Lummis, Woodall, Massie, Collins, 
Meadows, Bentivolio, and DeSantis.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill allows an SES employee to be fired for neglect of 
duty, misappropriation of funds, or malfeasance, and gives 
agencies discretion to place SES employees on unpaid leave, 
while maintaining existing due process rights. Legislative 
branch employees and their families, to the extent that they 
are otherwise eligible for the benefits provided by this 
legislation, have equal access to its benefits.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                    Duplication of Federal Programs

    No provision of H.R. 2579 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    H.R. 2579 directs OPM to prescribe regulations related to 
SES employees who may be placed on administrative leave with 
pay, administrative leave without pay, and investigative leave.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 2579 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 2579. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 2579 from the Director of 
Congressional Budget Office:

                                                     July 30, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2579, the 
Government Employee Accountability Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Santiago 
Vallinas.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2579--Government Employee Accountability Act

    CBO estimates that implementing H.R. 2579 would not have a 
significant impact on federal spending. Enacting the bill could 
affect revenues; therefore, pay-as-you-go procedures apply. 
However, CBO estimates that any effects would be insignificant 
for each year.
    H.R. 2579 would allow agencies to place federal employees 
who are part of the Senior Executive Service (SES) on unpaid 
leave for up to 180 days if they are being investigated for 
misappropriation of funds, misconduct, neglect of duty, or 
malfeasance; serious violations would lead to immediate 
termination. Currently, investigations of such offenses 
generally require agencies to initially place employees on paid 
leave, but later those employees may be suspended indefinitely 
without pay or terminated. Agencies do not track administrative 
leave for misconduct separately, so CBO cannot determine how 
many times such suspensions have occurred in the past. 
According to the Office of Personnel Management and other 
federal agencies, such situations are very uncommon. CBO 
assumes that even under H.R. 2579, suspensions for misconduct 
would continue to be uncommon and therefore only a few SES 
employees would be subject to unpaid leave or termination over 
the 2014-2023 period.
    Implementing this bill would lead to lower discretionary 
spending for salaries and expenses for those placed on unpaid 
administrative leave or terminated, but CBO estimates that such 
reductions would be small because of the small number of 
employees likely to be affected. Because some affected 
employees would not receive a salary for a period of time, they 
also would not make scheduled retirement contributions, 
resulting in a reduction in revenues. CBO estimates that those 
reductions also would not be significant.
    H.R. 2579 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Santiago 
Vallinas. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *



PART III--EMPLOYEES

           *       *       *       *       *       *       *


SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *


   CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE 
PAYMENTS, RESTORATION, AND REEMPLOYMENT

           *       *       *       *       *       *       *



 SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE 
SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *



Sec. 3593. Reinstatement in the Senior Executive Service

  (a) A former career appointee may be reinstated, without 
regard to section 3393(b) and (c) of this title, to any Senior 
Executive Service position for which the appointee is qualified 
if--
          (1) * * *
          (2) the appointee left the Senior Executive Service 
        for reasons other than misconduct, neglect of duty, 
        malfeasance, misappropriation of funds, or less than 
        fully successful executive performance as determined 
        under subchapter II of chapter 43.
  (b) A career appointee who is appointed by the President to 
any civil service position outside the Senior Executive Service 
and who leaves the position for reasons other than misconduct, 
neglect of duty, [or malfeasance] malfeasance, or 
misappropriation of funds shall be entitled to be placed in the 
Senior Executive Service if the appointee applies to the Office 
of Personnel Management within 90 days after separation from 
the Presidential appointment.

           *       *       *       *       *       *       *


Sec. 3594. Guaranteed placement in other personnel systems

  (a) A career appointee who was appointed from a civil service 
position held under a career or career-conditional appointment 
(or an appointment of equivalent tenure, as determined by the 
Office of Personnel Management) and who, for reasons other than 
misconduct, neglect of duty, [or malfeasance] malfeasance, or 
misappropriation of funds, is removed from the Senior Executive 
Service during the probationary period under section 3393(d) of 
this title, shall be entitled to be placed in a civil service 
position (other than a Senior Executive Service position) in 
any agency.

           *       *       *       *       *       *       *


SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


                      CHAPTER 75--ADVERSE ACTIONS


               SUBCHAPTER I--SUSPENSION OF 14 DAYS OR LESS

Sec.
7501. Definitions.
     * * * * * * *

    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 Service employees.

              SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS

Sec. 7501. Definitions

  For the purpose of this subchapter--
          [(1) ``employee'' means 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; and]
          (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; and

           *       *       *       *       *       *       *


SUBCHAPTER V--SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *


Sec. 7543. Cause and procedure

  (a) Under regulations prescribed by the Office of Personnel 
Management, an agency may take an action covered by this 
subchapter against an employee only for misconduct, neglect of 
duty, malfeasance, misappropriation of funds, or failure to 
accept a directed reassignment or to accompany a position in a 
transfer of function.
  (b) An employee against whom an action covered by this 
subchapter is proposed is entitled to--
          [(1) at least 30 days' advance written notice, unless 
        there is reasonable cause to believe that the employee 
        has committed a crime for which a sentence of 
        imprisonment can be imposed, stating specific reasons 
        for the proposed action;]
          (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;

           *       *       *       *       *       *       *


    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.
  (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.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    Committee Democrats oppose H.R. 2579, the Government 
Employee Accountability Act. H.R. 2579, as amended, would give 
an agency head broad discretion to place a Senior Executive on 
unpaid investigative leave or suspension or to fire the 
employee immediately without advance notice. The bill would 
provide no opportunity for a proper investigation or for the 
employee to address the agency head's concerns before such 
action is initiated.
    The legislation would eliminate due process protections and 
is unnecessary. During Committee consideration, the majority 
offered an Amendment in the Nature of a Substitute that revised 
the standard under which an agency may remove a Senior 
Executive and provided an employee the right to appeal to the 
Merit Systems Protection Board. In addition, several Democratic 
amendments were accepted that protected employees alleging 
whistleblower retaliation and discrimination claims and raised 
the standard for immediate removal, leave, and suspension. 
However, the majority did not accept an amendment offered by 
Representative Lynch that would have applied existing due 
process protections to the expedited removal provisions in the 
bill.
    H.R. 2579 would strip existing due process protections that 
were put in place to protect civil servants from partisan, 
political influence. It would shift the burden onto the 
employee to prove his or her innocence and to seek 
reinstatement. This is contrary to the core legal principle of 
the American justice system--the presumption that one is 
innocent until proven guilty.
    Under section 7543 of title 5 of the U.S. Code, agencies 
already may take action against Senior Executives for 
misconduct, neglect of duty, malfeasance, or failure to accept 
a reassignment or a transfer of function. However, current law 
requires agencies to give Senior Executive employees 30 days' 
advance notice before disciplinary action is commenced, unless 
there is reasonable cause to believe that the employee has 
committed a crime. Abuses committed by government employees 
certainly need to be addressed, but it should not be done by 
denying employees due process rights.

                                        Elijah E. Cummings,
                                                    Ranking Member.

                                  
