[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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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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