[House Report 113-603]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-603
======================================================================
SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT
_______
September 16, 2014.--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. 5169]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 5169) to amend title 5, United
States Code, to enhance accountability within the Senior
Executive Service, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 3
Explanation of Amendments........................................ 4
Committee Consideration.......................................... 4
Application of Law to the Legislative Branch..................... 4
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 4
Statement of General Performance Goals and Objectives............ 4
Duplication of Federal Programs.................................. 4
Disclosure of Directed Rule Makings.............................. 5
Federal Advisory Committee Act................................... 5
Unfunded Mandate Statement....................................... 5
Earmark Identification........................................... 5
Committee Estimate............................................... 5
Budget Authority and Congressional Budget Office Cost Estimate... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
Minority Views................................................... 12
Committee Statement and Views
PURPOSE AND SUMMARY
The Senior Executive Service Accountability Act, H.R. 5169,
brings needed accountability to the federal government's
executive leadership corps by providing employing agencies
additional tools to address instances where senior government
officials are engaging in behavior contrary to the principles
of public service.
BACKGROUND AND NEED FOR LEGISLATION
The Oversight and Government Reform Committee has
discovered high-ranking government leaders engaged in gross
mismanagement and misconduct.
In February 2012, the Committee began investigating
allegations that the Internal Revenue Service inappropriately
scrutinized certain applicants seeking tax-exempt status. On
May 12, 2013, the Treasury Inspector General for Tax
Administration released a report that found that the Exempt
Organizations (EO) division of the IRS inappropriately targeted
``Tea Party'' and other conservative applicants for tax-exempt
status and subjected them to heightened scrutiny.\1\ This
additional scrutiny resulted in extended delays that, in most
cases, sidelined applicants during the 2012 election cycle, in
spite of their Constitutional right to participate. Meanwhile,
the majority of liberal and left-leaning applicants won
approval.\2\ Documents and information obtained by the
Committee show that Lois G. Lerner, the now-retired Director of
IRS Exempt Organizations, was extensively involved in targeting
conservative-oriented tax-exempt applicants for inappropriate
scrutiny. The Committee's investigation of Ms. Lerner found
that she led efforts to scrutinize conservative groups while
working to maintain a veneer of objective enforcement.\3\
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\1\Treasury Inspector Gen. for Tax Admin., Inappropriate Criteria
Were Used to Identify Tax-Exempt Applications for Review (May 24,
2013).
\2\Gregory Korte, IRS Approved Liberal Groups while Tea Party in
Limbo, USA Today, May 15, 2013.
\3\H. Comm. on Oversight and Gov't Reform, Staff Report, Lois
Lerner's Involvement in the IRS Targeting of Tax-Exempt Organizations,
(March 11, 2014).
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In April 2012, the General Services Administration (GSA)
Office of Inspector General (OIG) released a report on the GSA
2010 Western Regions Conference held at a Las Vegas resort.\4\
The OIG found GSA spending on conference planning excessive,
wasteful, and in some cases impermissible; GSA wasted taxpayer
dollars and failed to follow contracting regulations in many of
the procurements associated with the Western Regional
Conference (WRC), GSA incurred impermissible and questionable
miscellaneous expenses; and GSA's approached to the conference
indicates that minimizing expenses was not a goal.\5\ A Senior
Executive Service employee, Jeff Neely, directed those planning
the conference to make it ``over the top.''\6\ Mr. Neely
engaged in an indefensible pattern of misconduct, including
repeatedly violating federal travel and procurement rules, held
lavish parties in luxury hotel suites, and allowed his wife and
other nongovernment officials to participate in some of these
events at taxpayers' expense. Mr. Neely was aware that his
actions were inappropriate.\7\
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\4\General Services Admin. Inspector Gen., General Services
Administration Public Buildings Service 2010 Western Regions Conference
(Apr. 2, 2012).
\5\Id. at 1-2.
\6\Id. at 13.
\7\H. Comm. on Oversight & Gov't Reform, Addressing GSA's Culture
of Wasteful Spending (April 16, 2012).
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In response, H.R. 5169 helps ensure Senior Executive
Service employees are held accountable for their work on behalf
of the American people. The bill eliminates the provision under
current law that allows Senior Executive Service employees
demoted for underperformance to retain their executive salary.
As a result, executives downgraded based upon performance will
be paid the salary of the position to which they are assigned.
H.R. 5169 extends the probationary period of executive leaders
by an additional year, providing agencies additional time to
ensure newly appointed officials are qualified for their
assigned role. The type of work expected of Senior Executive
Service employees is arguably more complex and warrants a
longer probationary period. H.R. 5169 makes executive leaders
subject to suspensions of two weeks or less, under the same
conditions as front line workers, and also makes clear
executives are held accountable for conduct contrary to the
efficiency of federal service. Both changes provide additional
tools for agencies to use when addressing issues of executive
misconduct and bring needed equity to the disciplinary system
for the federal workforce.
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Senior Executive
Service Accountability Act.''
Section 2. Biennial justification of positions
Requires agencies to provide written justification to the
Office of Personnel Management (OPM) for each requested SES
position, including existing positions.
Section 3. Extension of probationary period
Extends the probationary period for individuals appointed
to the Senior Executive Service from one year to two years.
Section 4. Modification of pay retention for senior executive service
members removed for underperformance
Eliminates the provision in current law which allows an
individual removed from the Senior Executive Service for
performance to retain his or her SES pay if appointed to a
civil service position.
Section 5. Requirement that performance requirements be established in
advance
Senior Executive Service employees must receive performance
requirements in writing no less than 30 days before the start
of an appraisal period.
Section 6. Amendments to adverse action provisions with respect to
career appointees in the senior executive service
Makes Senior Executive Service employees subject to
suspensions (without pay) of less than two weeks, in the same
manner as other civil service workers. Gives agencies authority
to remove Senior Executive Service employees for ``such cause
as would promote the efficiency of the service''--the standard
that currently applies to other civil service workers. Reduces
the requirement for agencies to give senior executives advance
notice of termination from a minimum of 30 days to not less
than 15 days.
Section 7. Mandatory leave for career appointees in the senior
executive service
Gives agency heads authority to place on mandatory annual
leave Senior Executive Service employees facing removal for
misconduct, and prohibits the accumulation of additional annual
leave during this period. Annual leave would be restored to the
Senior Executive Service employee if the agency, Merit Systems
Protection Board, or court found in the employee's favor during
the appeals process.
Explanation of Amendments
No amendments were adopted to H.R. 5169.
Committee Consideration
On July 24, 2014, the Committee met in open session and
ordered reported favorably the bill, H.R. 5169, by voice vote,
a quorum being present.
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 eliminates the provision under current law that
allows Senior Executive Service employees demoted for
underperformance to retain their executive salary. 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. 5169 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. 5169 requires the Office of Personnel Management to
promulgate regulations for agencies to use when exercising the
discretionary authority in section 7 to place a Senior
Executive Service employee on mandatory leave for misconduct,
neglect of duty, malfeasance, or such cause as would promote
the efficiency of the service. The bill requires the
regulations to be issued not later than 6 months after the date
of enactment of H.R. 5169.
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. 5169 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. 5169. 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. 5169 from the Director of
Congressional Budget Office:
September 8, 2014.
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. 5169, the Senior
Executive Service Accountability Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dan Ready.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 5169--Senior Executive Service Accountability Act
CBO estimates that implementing H.R. 5169 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 such effects would be
insignificant over the next ten years.
H.R. 5169 would make several changes to the conditions of
employment for members of the Senior Executive Service (SES).
In particular, the bill would change the procedures for
removing SES employees for misconduct or underperformance, and
modify the rules for providing salary and paid time off for
those removed. For example, H.R. 5169 would eliminate the
ability of former SES members removed for underperformance to
keep their SES pay if demoted to a civil service position
(under current law, they are allowed to continue being paid at
the SES level).
Implementing this bill would lead to lower discretionary
spending for salaries and expenses for those removed from the
SES for misconduct or underperformance. CBO estimates that the
spending decrease would be small because so few employees would
likely be affected. According to the Office of Personnel
Management, only 5 SES employees over the past five years would
have met the criteria for salary adjustments set forth in this
bill. Because some affected employees would receive a reduced
salary, their retirement contributions would also be slightly
reduced, resulting in a reduction in revenues. CBO estimates
that those reductions also would not be significant.
H.R. 5169 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 Dan Ready. 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 31--AUTHORITY FOR EMPLOYMENT
* * * * * * *
SUBCHAPTER II--THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3133. Authorization of positions; authority for appointment
(a) During each even-numbered calendar year, each agency
shall--
(1) * * *
(2) submit to the Office of Personnel Management a
written request for a specific number of Senior
Executive Service positions, 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, for each of such fiscal years.
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3393. Career appointments
(a) * * *
* * * * * * *
(d) An individual's initial appointment as a career appointee
shall become final only after the individual has served a [1-
year] 2-year probationary period as a career appointee.
* * * * * * *
CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE
PAYMENTS, RESTORATION, AND REEMPLOYMENT
* * * * * * *
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3592. Removal from the Senior Executive Service
(a) Except as provided in subsection (b) of this section, a
career appointee may be removed from the Senior Executive
Service to a civil service position outside of the Senior
Executive Service--
(1) during the [1-year] 2-year period of probation
under section 3393(d) of this title, or
* * * * * * *
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,] such cause as
would promote the efficiency of the service,
misconduct, neglect of duty, malfeasance, 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,] such cause as would promote the efficiency of the
service, misconduct, neglect of duty, or malfeasance 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,] such cause as would promote the efficiency of the
service, misconduct, neglect of duty, or malfeasance, 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.
* * * * * * *
(c)(1) For purposes of subsections (a) and (b) of this
section--
(A) * * *
[(B) any career appointee placed under subsection (a)
or (b) 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]
(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
* * * * * * *
SUBPART C--EMPLOYEE PERFORMANCE
* * * * * * *
CHAPTER 43--PERFORMANCE APPRAISAL
* * * * * * *
SUBCHAPTER II--PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 4312. Senior Executive Service performance appraisal systems
(a) * * *
(b) Each performance appraisal system established by an
agency under subsection (a) of this section shall provide--
(1) that, [on or] not later than 30 calendar days
before the beginning of each rating period, performance
requirements for each senior executive in the agency
are established in consultation with the senior
executive and communicated in writing to the senior
executive;
* * * * * * *
SUBPART E--ATTENDANCE AND LEAVE
* * * * * * *
CHAPTER 63--LEAVE
SUBCHAPTER I--ANNUAL AND SICK LEAVE
Sec.
6301. Definitions.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
6329. Mandatory leave for Senior Executive Service career appointees.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
Sec. 6329. Mandatory leave for Senior Executive Service career
appointees
(a) In this section--
(1) the term ``employee'' means--
(A) a career appointee in the Senior
Executive Service who--
(i) has completed the probationary
period prescribed under section 3393(d)
of this title; or
(ii) was covered by the provisions of
subchapter II of chapter 75 of this
title immediately before appointment to
the Senior Executive Service; and
(B) who has received written notice of
removal from the civil service under subchapter
V of chapter 75 of this title; and
(2) the term ``mandatory leave'' means, with respect
to an employee, an absence with pay but without duty
during which such employee--
(A) shall be charged accrued annual leave for
the period of such absence; and
(B) may not accrue any annual leave under
section 6303 for the period of such absence.
(b) Under regulations prescribed by the Office of Personnel
Management, an agency may place an employee on mandatory leave
for misconduct, neglect of duty, malfeasance, or such cause as
would promote the efficiency of the service.
(c) If an agency determines that an employee should be placed
on mandatory leave under subsection (b), such leave shall begin
no earlier than the date on which the employee received written
notice of a removal under subchapter V of chapter 75.
(d) If a final order or decision is issued in favor of such
employee with respect to removal under subchapter V of chapter
75 by the agency, the Merit Systems Protection Board, or the
United States Court of Appeals for the Federal Circuit, any
annual leave that is charged to an employee by operation of
this section shall be restored to the applicable leave account
of such employee.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
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 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
* * * * * * *
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,] such
cause as would promote the efficiency of the service,
misconduct, neglect of duty, malfeasance, 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] 15 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;
* * * * * * *
MINORITY VIEWS
Committee Democrats oppose H.R. 5169, the Senior Executive
Service Accountability Act, which would make it easier for
agencies to suspend or remove members of the Senior Executive
Service (SES) at the expense of due process and at the risk of
politicizing the federal government's senior executive corps.
This legislation was intended to address recent allegations
of misconduct and management failures by senior executives at
various agencies by bringing the federal government's career
senior executives closer to becoming ``at will'' employees.
H.R. 5169 would: extend the current probationary period from
one year to two years; authorize agencies to suspend senior
executives for less than 14 days without third-party review;
shorten the timeframe for agencies to give advanced written
notice to SES employees of adverse actions from 30 days to 15
days; and allow agencies to place SES employees on mandatory
leave for misconduct, neglect of duty, malfeasance, or such
cause as would promote the efficiency of the service.
The bill's provisions regarding the extension of the
probationary period and the authorization of suspensions for
less than 14 days would allow agency heads and political
appointees to terminate or suspend SES members for politically-
motivated reasons and without third-party review. This could
result in the politicization of career senior executives, which
would undermine the protections against political patronage and
corruption provided under the Pendleton Civil Service Reform
Act of 1883.\1\
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\1\Ch. 27, 22 Stat. 403 (1883).
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The legislation also raises due process concerns. The
provision that would shorten the advance notice period given to
SES employees of adverse actions may negatively impact the
ability of employees to respond to agency charges and proposed
actions.
In addition, ``mandatory leave'' as defined in the
legislation may be interpreted by the courts and the Merit
Systems Protections Board (MSPB) as involuntary or enforced
leave requiring procedural due process. The Federal Circuit
Court of Appeals and MSPB have held that the imposition of
involuntary or enforced sick or annual leave constitutes a
constructive suspension requiring agencies to provide employees
with procedural rights such as notice, an opportunity to
respond to agency decisions, and appeal rights prior to
placement on leave status.\2\
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\2\Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed.
Cir. 1987); Abbott v. United States Postal Service, 2014 MSPB 47(2014);
Zygas v. United States Postal Service, 2011 MSPB 55 (2011).
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During the Committee's consideration of H.R. 5169,
Representative Norton offered an amendment that would have
struck the provision shortening the notice period for adverse
actions from 30 days to 15 days. Representative Lynch offered
an amendment that would have struck the provision giving
agencies authority to place senior executives on mandatory
leave.
Representatives Norton and Lynch withdrew their amendments
based on assurances from the Chairman that he would work to
address their concerns prior to House consideration of the
bill.
Elijah E. Cummings.