[House Report 114-454]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-454
======================================================================
OFFICIAL PERSONNEL FILE ENHANCEMENT ACT
_______
March 16, 2016.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 4360]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 4360) to amend title 5, United
States Code, to provide that a Federal employee who leaves
Government service while under personnel investigation shall
have a notation of any adverse findings under such
investigation placed in such employee's official personnel
file, and for other purposes, having considered the same,
report favorably thereon with amendments and recommend that the
bill as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 4
Explanation of Amendments........................................ 5
Committee Consideration.......................................... 5
Roll Call Votes.................................................. 5
Application of Law to the Legislative Branch..................... 5
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 6
Statement of General Performance Goals and Objectives............ 6
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Federal Advisory Committee Act................................... 6
Unfunded Mandate Statement....................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
Budget Authority and Congressional Budget Office Cost Estimate... 7
Changes in Existing Law Made by the Bill, as Reported............ 7
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 2, line 4, strike ``31'' and insert ``33''.
Page 2, line 9, strike ``individual'' and insert
``employee''.
Page 2, strike lines 15 through 20 and insert the following:
``with respect to such employee pursuant to such investigation,
make a permanent notation in the employee's official personnel
record file. The head shall make such notation not later than
40 days after the date of the resolution of such
investigation.''.
Page 2, strike lines 21 through 23 and insert the following
(and redesignate the subsequent subsection accordingly):
``(b) Prior to making a permanent notation in an employee's
official personnel record file under subsection (a), the head
of the agency shall--
``(1) notify the employee in writing within 5 days of the
resolution of the investigation and provide such employee a
copy of the adverse finding and any supporting documentation;
``(2) provide the employee with a reasonable time, but not
less than 30 days, to respond in writing and to furnish
affidavits and other documentary evidence to show why the
adverse finding was unfounded (a summary of which shall be
included in any notation made to the employee's personnel file
under subsection (d)); and
``(3) provide a written decision and the specific reasons
therefore to the employee at the earliest practicable date.
``(c) An employee is entitled to appeal the decision of the
head of the agency to make a permanent notation under
subsection (a) to the Merit Systems Protection Board under
section 7701.
``(d)(1) If an employee files an appeal with the Merit
Systems Protection Board pursuant to subsection (c), the agency
head shall make a notation in the employee's official personnel
record file indicating that an appeal disputing the notation is
pending not later than 2 weeks after the date on which such
appeal was filed.
``(2) If the head of the agency is the prevailing party on
appeal, not later than 2 weeks after the date that the Board
issues the appeal decision, the head of the agency shall remove
the notation made under paragraph (1) from the employee's
official personnel record file.
``(3) If the employee is the prevailing party on appeal,
not later than 2 weeks after the date that the Board issues the
appeal decision, the head of the agency shall remove the
notation made under paragraph (1) and the notation of an
adverse finding made under subsection (a) from the employee's
official personnel record file.''.
Page 2, line 26, insert ``and'' at the end.
Page 3, line 4, strike ``; and'' and insert a period.
Page 3, strike lines 5 through 8.
Page 3, line 20, strike ``31'' and insert ``33''.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 4360, the Official Personnel File Enhancement Act,
requires federal agencies to make a notation in a separated
employee's official personnel file if that employee resigns in
the midst of an investigation that ultimately makes an adverse
finding against that employee.
No later than 40 days after the resolution of a personnel
investigation regarding a former employee resulting in an
adverse finding, an agency head must make a notation in the
former employee's personnel file. Prior to making such
notation, and within 5 days after the resolution of the
investigation, the agency head must give the former employee
written notice of the finding and an opportunity to respond.
The former employee may appeal the agency head's written
decision to the Merit Systems Protection Board (MSPB). If the
former employee prevails at the MSPB, the notation is removed.
If the former employee loses the appeal, the notation remains
and becomes a permanent part of the former employee's personnel
file.
BACKGROUND AND NEED FOR LEGISLATION
Currently, a federal employee who is under investigation
for misconduct or performance issues may resign from employment
in the midst of an investigation and may largely escape formal
discipline or accountability (including any notation of such
issues in his or her official personnel file), should the
investigation result in an adverse finding against the
separated employee. Individuals who resign in such
circumstances could then seek employment with another federal
agency, which would not necessarily have knowledge of the
adverse finding.
For example, an August 2015 Investigative Report by the
Office of the Inspector General (OIG) for the Department of
Commerce concerning the United States Patent and Trademark
Office (USPTO) detailed how employees are able to take
advantage of the current disciplinary process.\1\ In this case,
the OIG determined that a USPTO patent examiner (Examiner A)
had committed at least 730 hours of time and attendance abuse
in fiscal year 2014, about 43 percent of the hours the
individual certified that year.\2\ This resulted in roughly
$25,500 in payments for unworked time.\3\ As part of its
investigation, the OIG scheduled an interview with this patent
examiner.\4\ However, Examiner A resigned ``immediately prior
to a scheduled interview,'' and the Inspector General report
explains that, ``[i]n an IM to a co-worker on the day of his
resignation, Examiner A stated that the Patent Office
Professional Association (POPA), the union representing patent
examiners, advised him that he could keep his official
personnel file free of any derogatory information if he
resigned before the OIG interview.''\5\
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\1\U.S. Dep't of Commerce Office of Inspector General,
Investigative Report, U.S. Patent and Trademark Office, Time and
Attendance Abuse by Patent Examiner A (Aug. 2015) (15-0076).
\2\Id, at 2.
\3\Id.
\4\Id, at 3.
\5\Id.
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In another instance, an employee was found to have lied
about his education credentials, falsifying university
transcripts as well as official records that he submitted to
the Department of the Interior.\6\ After receiving a complaint
that the employee may have falsified his educational history,
the OIG began investigating the allegation.\7\ The individual
subsequently admitted to falsifying the information and
resigned before the conclusion of the investigation.\8\ After
his resignation, the individual applied to and was hired by the
Census Bureau.\9\
---------------------------------------------------------------------------
\6\U.S. Dep't of the Interior Office of Inspector General, Report
of Investigation, at 1 (Nov. 26, 2013) (PI-PI-13-0457-I).
\7\Id, at 2.
\8\Id.
\9\Letter from John H. Thompson, Director, U.S. Census Bureau, to
Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform (July
14, 2015).
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While circumstances such as these are rare, it is important
to close loopholes that allow individuals to take advantage of
the federal government's highly structured investigatory and
disciplinary process to escape responsibility for their
actions. To correct this problem, H.R. 4360 requires that a
notation be made in an employee's official personnel file if
the employee resigns while under investigation and the
investigation subsequently results in an adverse finding
against the employee. This will help ensure that other agencies
will be aware of the finding should the employee apply for
federal employment at a later time. Importantly, H.R. 4360
provides separated employees the opportunity to respond to an
investigation's findings before the agency head makes a final
determination on the adverse finding. Further, the bill also
affords appeal rights to a separated employee to guard against
any unfair or inaccurate notation in the former employee's
personnel file.
LEGISLATIVE HISTORY
H.R. 4360, the Official Personnel File Enhancement Act, was
introduced by Rep. Jason Chaffetz (R-UT) on January 11, 2016,
and referred to the Committee on Oversight and Government
Reform.
On January 12, 2016, the Committee on Oversight and
Government Reform ordered H.R. 4360 favorably reported, as
amended by an amendment offered by Congressman Gerald Connolly
(D-VA).
Section-by-Section
Section 1. Short title
Designates the short title of the bill as the ``Official
Personnel File Enhancement Act''.
Section 2. Record of Investigation of Personnel Action in Separated
Employee's Personnel File
Amends title 5, United States Code, to require the head of
an agency to make a permanent notation in an individual's
personnel file if that individual, as a member of the
competitive or excepted service, resigns from government
employment while the subject of a personnel investigation, and
an adverse finding against the individual is ultimately made as
a result of the investigation. The notation must be made within
14 days of the finding.
A personnel investigation includes an Inspector General
investigation, an adverse personnel action, and any other type
of investigation relating to poor performance or misconduct.
This amendment will apply to all members of the competitive
service and excepted service who leave the service after the
date of enactment of this Act.
Section 3. Review of Official Personnel File of Former Federal
Employees before Rehiring
Further amends title 5 to require agencies to review and
consider the information within the official personnel record
file of any former federal government employee who is a
candidate for a position with that agency within the
competitive or excepted service.
Defines ``former Government employee'' as an individual
whose most recent government position was within the
competitive or excepted service, prior to becoming a candidate.
This amendment will apply to any former government employee
appointed or reinstated on or after the date that is 180 days
after enactment of this Act.
Explanation of Amendments
During Full Committee consideration of the bill,
Congressman Gerald Connolly (D-VA) offered an amendment to give
a separated employee an opportunity to respond to adverse
findings as a result of an investigation.
Under the amendment, the agency head is provided 40 days to
make a determination to include a notation within the separated
employee's personnel file. During this time, the agency head
must provide the former employee written notice of the finding
and 30 days to respond. If the agency upholds an adverse
finding, the separated employee may appeal the decision to the
MSPB and a notation is made of the finding in the employee's
official personnel file. Should the individual choose to appeal
to MSPB, a notation of the appeal will be made in his/her file.
If the individual wins the appeal, the notation regarding the
adverse finding and subsequent appeal will be removed from the
file. If the individual loses the appeal, only the notation
regarding the appeal will be removed from the file.
The amendment offered by Rep. Connolly was adopted by voice
vote.
Committee Consideration
On January 12, 2016, the Committee met in open session and
ordered reported favorably the bill, H.R. 4360, as amended, by
voice vote, a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 4360.
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 amends title 5, United States Code, to provide that a
Federal employee who leaves Government service while under
personnel investigation shall have a notation of any adverse
findings under such investigation placed in such employee's
official personnel file. As such, it does not relate to
employment or access to public services and accommodations.
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
goal or objective of the bill is to provide that a Federal
employee who leaves Government service while under personnel
investigation shall have a notation of any adverse findings
under such investigation placed in such employee's official
personnel file.
Duplication of Federal Programs
No provision of this bill 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
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
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
This bill 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)(1) 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
this bill. However, clause 3(d)(2)(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 of
1974.
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 this bill from the Director of
Congressional Budget Office:
H.R. 4360--Official Personnel File Enhancement Act
H.R. 4360 would require federal agencies to include any
findings of a government investigation of misconduct in an
employee's personnel file. The legislation specifically applies
to employees who leave government service before such an
investigation is completed.
Under current law, such investigations end once an employee
leaves federal service. Based on information from the Merit
System Protection Board and human resource professionals, CBO
expects that completing all misconduct investigations and
updating personnel files as required under H.R. 4360 would lead
to a small increase in administrative costs at federal
agencies. Based on information from federal agencies, CBO
expects that most costs to conduct investigations of employee
misconduct are usually incurred before such employees leave
federal service. Based on prior experience and information from
federal agencies, CBO also expects that very few former
employees would appeal the findings of their completed
investigations under H.R. 4360. Thus, CBO estimates that any
additional administrative costs to the federal government to
implement H.R. 4360 would not be significant.
Enacting H.R. 4360 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) because they
are authorized to use receipts from the sale of goods, fees,
and other collections to cover their operating costs;
therefore, pay-as-you-go procedures apply. Because most of
those agencies can cover additional costs by making adjustments
to the amounts collected, CBO estimates that any net changes in
direct spending by those agencies would be negligible. Enacting
the bill would not affect revenues.
CBO estimates that enacting H.R. 4360 would not increase
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
H.R. 4360 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
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 (new matter is
printed in italics and 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 33--EXAMINATION, SELECTION, AND PLACEMENT
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
Sec.
3301. Civil service; generally.
* * * * * * *
3322. Voluntary separation before resolution of personnel investigation.
* * * * * * *
3330e. Review of official personnel file of former Federal employees
before rehiring.
* * * * * * *
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
* * * * * * *
Sec. 3322. Voluntary separation before resolution of personnel
investigation
(a) With respect to any employee occupying a position in the
competitive service or the excepted service who is the subject
of a personnel investigation and resigns from Government
employment prior to the resolution of such investigation, the
head of the agency from which such employee so resigns shall,
if an adverse finding was made with respect to such employee
pursuant to such investigation, make a permanent notation in
the employee's official personnel record file. The head shall
make such notation not later than 40 days after the date of the
resolution of such investigation.
(b) Prior to making a permanent notation in an employee's
official personnel record file under subsection (a), the head
of the agency shall--
(1) notify the employee in writing within 5 days of
the resolution of the investigation and provide such
employee a copy of the adverse finding and any
supporting documentation;
(2) provide the employee with a reasonable time, but
not less than 30 days, to respond in writing and to
furnish affidavits and other documentary evidence to
show why the adverse finding was unfounded (a summary
of which shall be included in any notation made to the
employee's personnel file under subsection (d)); and
(3) provide a written decision and the specific
reasons therefore to the employee at the earliest
practicable date.
(c) An employee is entitled to appeal the decision of the
head of the agency to make a permanent notation under
subsection (a) to the Merit Systems Protection Board under
section 7701.
(d)(1) If an employee files an appeal with the Merit Systems
Protection Board pursuant to subsection (c), the agency head
shall make a notation in the employee's official personnel
record file indicating that an appeal disputing the notation is
pending not later than 2 weeks after the date on which such
appeal was filed.
(2) If the head of the agency is the prevailing party on
appeal, not later than 2 weeks after the date that the Board
issues the appeal decision, the head of the agency shall remove
the notation made under paragraph (1) from the employee's
official personnel record file.
(3) If the employee is the prevailing party on appeal, not
later than 2 weeks after the date that the Board issues the
appeal decision, the head of the agency shall remove the
notation made under paragraph (1) and the notation of an
adverse finding made under subsection (a) from the employee's
official personnel record file.
(e) In this section, the term ``personnel investigation''
includes--
(1) an investigation by an Inspector General; and
(2) an adverse personnel action as a result of
performance, misconduct, or for such cause as will
promote the efficiency of the service under chapter 43
or chapter 75.
* * * * * * *
Sec. 3330e. Review of official personnel file of former Federal
employees before rehiring
(a) If a former Government employee is a candidate for a
position within the competitive service or the excepted
service, prior to making any determination with respect to the
appointment or reinstatement of such employee to such position,
the appointing authority shall review and consider the
information relating to such employee's former period or
periods of service in such employee's official personnel record
file.
(b) In subsection (a), the term ``former Government
employee'' means an individual whose most recent position with
the Government prior to becoming a candidate as described under
subsection (a) was within the competitive service or the
excepted service.
(c) The Office of Personnel Management shall prescribe
regulations to carry out the purpose of this section.
* * * * * * *
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