[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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \1\Ch. 27, 22 Stat. 403 (1883).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.