[House Report 114-485]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-485
======================================================================
SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT
_______
April 12, 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
together with
MINORITY VIEWS
[To accompany H.R. 4358]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 4358) 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
Roll Call Votes.................................................. 5
Application of Law to the Legislative Branch..................... 6
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............................................... 7
Budget Authority and Congressional Budget Office Cost Estimate... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Minority Views................................................... 24
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 4358, the Senior Executive Service Accountability Act,
enhances accountability within the Senior Executive Service.
BACKGROUND AND NEED FOR LEGISLATION
In response to several hearings held during the 114th
Congress by the Committee on Oversight and Government Reform on
the performance and misconduct of members of the Senior
Executive Service (SES), H.R. 4358 would help ensure SES
employees are held accountable for their work on behalf of the
American people.
H.R. 4358 extends the probationary period for individuals
appointed to the Senior Executive Service from one to two
years. This provides agencies with the additional time required
to ensure that SES employees are meeting the requirements of
their positions and the standards expected of federal leaders.
The bill eliminates the provision under current law that
allows SES employees to be removed for poor performance and
assigned to another position to retain their executive salary.
As a result, SES employees downgraded based upon performance
will be paid the salary of the position to which they are
assigned. The bill also requires that senior executives receive
performance requirements in writing no less than 30 days before
the start of an appraisal period.
H.R. 4358 makes SES employees subject to suspensions of two
weeks or less and holds such employees accountable for conduct
contrary to the efficiency of federal service, in the same
manner as other civil service workers. The bill also reduces
the requirement for agencies to give executives advance written
notice of a termination or a suspension of more than 14 days
from a minimum of 30 days to a minimum of 15 days. These
changes provide additional tools for agencies to use when
addressing issues of executive performance and conduct related
matters.
The bill also provides agency heads with the authority to
place SES employees facing removal for misconduct on mandatory
annual leave and the authority to seek removal or transfer of
SES employees based on poor performance or misconduct with an
abbreviated process for an expedited appeal. Finally, H.R. 4358
requires mandatory reassignments of SES employees at least once
every five years, to help ensure federal leaders have broad
levels of experience needed to manage the federal government.
The mobility of federal leaders was an important aspect in the
establishment of the Senior Executive Service.
LEGISLATIVE HISTORY
H.R. 4358, the Senior Executive Service Accountability Act,
was introduced on January 8, 2016 by Congressman Tim Walberg
(R-MI) and referred to the Committee on Oversight and
Government Reform. On January 12, 2016, the Committee ordered
H.R. 4358 favorably reported by a vote of 21 to 16, without
amendment.
In the 113th Congress, a substantially similar version of
this legislation, H.R. 5169, was introduced by Congressman
Walberg and passed the House of Representatives by voice vote
on September 16, 2014.
Section-by-Section
Section 1. Short title
Designates the short title of the bill as the ``Senior
Executive Service Accountability Act''.
Section 2. Biennial justification of senior executive service positions
Requires agencies to provide written justification to the
Office of Personnel Management for each requested SES position,
including existing positions.
Section 3. Extension of probationary period for career appointees
Extends the probationary period for individuals appointed
to the SES from one to two years.
Section 4. Modification of pay retention for career appointees removed
for under performance
Eliminates the provision in current law which allows an
individual removed from the SES for performance to retain his
or her SES pay if appointed to a civil service position.
Section 5. Advanced establishment of performance requirements under
senior executive service performance appraisal systems
Requires that SES employees must receive performance
requirements in writing no less than 30 days before the start
of an appraisal period.
Section 6. Amendments with respect to adverse actions against career
appointees
Makes SES 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 SES employees for
``such cause as would promote the efficiency of the service''--
the standard that currently applies to other civil services
workers.
Reduces the requirement for agencies to give senior
executives advance written notice of termination or suspension
of more than 14 days from a minimum of 30 days to 15 days.
Section 7. Mandatory leave for career appointees subject to removal
Gives agency heads authority to place SES employees facing
removal for misconduct on mandatory annual leave, and prohibits
the accumulation of additional annual leave during this period.
Annual leave would be restored to the SES employee if the
agency, Merit Systems Protection Board (MSPB), or court found
in the employee's favor during the appeals process.
Section 8. Expedited removal of career appointees for performance or
misconduct
Provides authority for heads of agencies to seek removal or
transfer of senior executives based on poor performance or
misconduct, with an abbreviated process for an expedited
appeal. Requires agency heads to notify Congress within 30 days
after removing or transferring an employee and the reason for
the removal or transfer. An employee may appeal a termination
or transfer notice to the Merit Systems Protection Board within
7 days of receiving notice. Upon receipt of an appeal, an
administrative judge has 21 days to issue a decision. If an
administrative judge cannot issue a decision, the decision to
terminate or transfer will be final, and the MSPB must submit a
report to Congress explaining why a decision was not issued. An
employee may not receive pay during the appeals process.
Section 9. Mandatory reassignment of career appointees
Requires that at least once every five years, an SES
employee will be reassigned to another SES position. Gives the
head of each agency the authority to waive the requirement,
provided the agency head submits a waiver to the relevant House
and Senate committees explaining the reason for the waiver.
Explanation of Amendments
Delegate Eleanor Holmes Norton offered an amendment to
strike sections 3, 6(b), 7, 8 and 9 of the bill. The amendment
was not adopted by voice vote.
Committee Consideration
On January 12, 2016, the Committee met in open session and
ordered reported favorably the bill, H.R. 4358, by a record
vote of a 21 to 16, a quorum being present.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 enhance
accountability within the Senior Executive Service. As such
this bill 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 amend title 5, United
States Code, to enhance accountability within the Senior
Executive Service.
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. 4358--Senior Executive Service Accountability Act
H.R. 4358 would modify several personnel procedures that
apply to the Senior Executive Service (SES). Provisions of the
legislation would make it easier for agencies to discipline and
fire members of the SES, disallow SES members who are moved to
the civil service from retaining their SES pay, and require
members of the SES to transfer to a new agency at least once
every five years.
CBO estimates that enacting H.R. 4358 would have no
significant budgetary effect because it would not change the
number of SES members, the amounts they are paid, or the
resources agencies require. The provision disallowing pay
retention would have affected only six federal employees from
2009 to 2014, according to the Office of Personnel Management
(OPM). On that basis, CBO estimates the total savings from
implementing that requirement would be insignificant.
Implementing the provision requiring regular transfers would
have no significant relocation costs because such transfers
would have to be within commuting distance of the SES member's
home. Finally, based on information from OPM, CBO estimates
that the additional agency overhead for those transfers also
would not be significant.
Because enacting the bill would not affect direct spending
or revenues, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 4358 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
H.R. 4358 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 Dan Ready. 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 (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, 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 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) examine its needs for Senior Executive Service
positions for each of the 2 fiscal years beginning
after such calendar year; and
(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.
(b) Each agency request submitted under subsection (a) of
this section shall--
(1) be based on the anticipated type and extent of
program activities and budget requests of the agency
for each of the 2 fiscal years involved, and such other
factors as may be prescribed from time to time by the
Office; and
(2) identify, by position title, positions which are
proposed to be designated as or removed from
designation as career reserved positions, and set forth
justifications for such proposed actions.
(c) The Office of Personnel Management, in consultation with
the Office of Management and Budget, shall review the request
of each agency and shall authorize, for each of the 2 fiscal
years covered by requests required under subsection (a) of this
section, a specific number of Senior Executive Service
positions for each agency.
(d)(1) The Office of Personnel Management may, on a written
request of an agency or on its own initiative, make an
adjustment in the number of positions authorized for any
agency. Each agency request under this paragraph shall be
submitted in such form, and shall be based on such factors, as
the Office shall prescribe.
(2) The total number of positions in the Senior Executive
Service may not at any time during any fiscal year exceed 105
percent of the total number of positions authorized under
subsection (c) of this section for such fiscal year.
(e)(1) Not later than July 1, 1979, and from time to time
thereafter as the Director of the Office of Personnel
Management finds appropriate, the Director shall establish, by
rule issued in accordance with section 1103(b) of this title,
the number of positions out of the total number of positions in
the Senior Executive Service, as authorized by this section or
section 413 of the Civil Service Reform Act of 1978, which are
to be career reserved positions. Except as provided in
paragraph (2) of this subsection, the number of positions
required by this subsection to be career reserved positions
shall not be less than the number of the positions then in the
Senior Executive Service which, before the date of such Act,
were authorized to be filled only through competitive civil
service examination.
(2) The Director may, by rule, designate a number of career
reserved positions which is less than the number required by
paragraph (1) of this subsection only if the Director
determines such lesser number necessary in order to designate
as general positions one or more positions (other than
positions described in section 3132(b)(3) of this title)
which--
(A) involve policymaking responsibilities which
require the advocacy or management of programs of the
President and support of controversial aspects of such
programs;
(B) involve significant participation in the major
political policies of the President; or
(C) require the senior executives in the positions to
serve as personal assistants of, or advisers to,
Presidential appointees.
The Director shall provide a full explanation for his
determination in each case.
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3393. Career appointments
(a) Each agency shall establish a recruitment program, in
accordance with guidelines which shall be issued by the Office
of Personnel Management, which provides for recruitment of
career appointees from--
(1) all groups of qualified individuals within the
civil service; or
(2) all groups of qualified individuals whether or
not within the civil service.
(b) Each agency shall establish one or more executive
resources boards, as appropriate, the members of which shall be
appointed by the head of the agency from among employees of the
agency or commissioned officers of the uniformed services
serving on active duty in such agency. The boards shall, in
accordance with merit staffing requirements established by the
Office, conduct the merit staffing process for career
appointees, including--
(1) reviewing the executive qualifications of each
candidate for a position to be filled by a career
appointee; and
(2) making written recommendations to the appropriate
appointing authority concerning such candidates.
(c)(1) The Office shall establish one or more qualifications
review boards, as appropriate. It is the function of the boards
to certify the executive qualifications of candidates for
initial appointment as career appointees in accordance with
regulations prescribed by the Office. Of the members of each
board more than one-half shall be appointed from among career
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the
professional knowledge of public management and knowledge of
the appropriate occupational fields of the intended appointee.
(2) The Office shall, in consultation with the various
qualification review boards, prescribe criteria for
establishing executive qualifications for appointment of career
appointees. The criteria shall provide for--
(A) consideration of demonstrated executive
experience;
(B) consideration of successful participation in a
career executive development program which is approved
by the Office; and
(C) sufficient flexibility to allow for the
appointment of individuals who have special or unique
qualities which indicate a likelihood of executive
success and who would not otherwise be eligible for
appointment.
(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. The
preceding sentence shall not apply to any individual covered by
section 1599e of title 10.
(e) Each career appointee shall meet the executive
qualifications of the position to which appointed, as
determined in writing by the appointing authority.
(f) The title of each career reserved position shall be
published in the Federal Register.
(g) A career appointee may not be removed from the Senior
Executive Service or civil service except in accordance with
the applicable provisions of sections 1215, 3592, 3595, 7532,
[or 7543 of this title], 7543, or 7553 of this title or section
713 of title 38.
* * * * * * *
Sec. 3395. Reassignment and transfer within the Senior Executive
Service
(a)(1) A career appointee in an agency--
(A) may, subject to [paragraph (2)] paragraphs (2)
and (3) of this subsection, be reassigned to any Senior
Executive Service position in the same agency for which
the appointee is qualified; and
(B) may transfer to a Senior Executive Service
position in another agency for which the appointee is
qualified, with the approval of the agency to which the
appointee transfers.
(2)(A) Except as provided in subparagraph (B) of this
paragraph, a career appointee may be reassigned to any Senior
Executive Service position only if the career appointee
receives written notice of the reassignment at least 15 days
before the effective date of such reassignment.
(B)(i) A career appointee may not be reassigned to a Senior
Executive Service position outside the career appointee's
commuting area unless--
(I) before providing notice under subclause (II) of
this clause (or seeking or obtaining the consent of the
career appointee under clause (ii) of this subparagraph
to waive such notice), the agency consults with the
career appointee on the reasons for, and the
appointee's preferences with respect to, the proposed
reassignment; and
(II) the career appointee receives written notice of
the reassignment, including a statement of the reasons
for the reassignment, at least 60 days before the
effective date of the reassignment.
(ii) Notice of reassignment under clause (i)(II) of this
subparagraph may be waived with the written consent of the
career appointee involved.
(3)(A) Consistent with the requirements of paragraphs (1) and
(2), at least once every five years beginning on the date that
a career appointee is initially appointed to the Senior
Executive Service, each career appointee at an agency shall be
reassigned to another Senior Executive Service position at the
agency at a different geographic location that does not include
the supervision of the same agency personnel or programs.
(B) The head of an agency may waive the requirement under
subparagraph (A) for any career appointee if the head submits
notice of the waiver and an explanation of the reasons for the
waiver to the Committee on Oversight and Government Reform of
the House of Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate.
(b)(1) Notwithstanding section 3394(b) of this title, a
limited emergency appointee may be reassigned to another Senior
Executive Service position in the same agency established to
meet a bona fide, unanticipated, urgent need, except that the
appointee may not serve in one or more positions in such agency
under such appointment in excess of 18 months.
(2) Notwithstanding section 3394(b) of this title, a limited
term appointee may be reassigned to another Senior Executive
Service position in the same agency the duties of which will
expire at the end of a term of 3 years or less, except that the
appointee may not serve in one or more positions in the agency
under such appointment in excess of 3 years.
(c) A limited term appointee or a limited emergency appointee
may not be appointed to, or continue to hold, a position under
such an appointment if, within the preceding 48 months, the
individual has served more than 36 months, in the aggregate,
under any combination of such types of appointment.
(d) A noncareer appointee in an agency--
(1) may be reassigned to any general position in the
agency for which the appointee is qualified; and
(2) may transfer to a general position in another
agency with the approval of the agency to which the
appointee transfers.
(e)(1) Except as provided in paragraph (2) of this
subsection, a career appointee in an agency may not be
involuntarily reassigned--
(A) within 120 days after an appointment of the head
of the agency; or
(B) within 120 days after the appointment in the
agency of the career appointee's most immediate
supervisor who--
(i) is a noncareer appointee; and
(ii) has the authority to make an initial
appraisal of the career appointee's performance
under subchapter II of chapter 43.
(2) Paragraph (1) of this subsection does not apply with
respect to--
(A) any reassignment under section 4314(b)(3) of this
title; or
(B) any disciplinary action initiated before an
appointment referred to in paragraph (1) of this
subsection.
(3) For the purpose of applying paragraph (1) to a career
appointee, any days (not to exceed a total of 60) during which
such career appointee is serving pursuant to a detail or other
temporary assignment apart from such appointee's regular
position shall not be counted in determining the number of days
that have elapsed since an appointment referred to in
subparagraph (A) or (B) of such paragraph.
* * * * * * *
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
(2) at any time for less than fully successful
executive performance as determined under subchapter II
of chapter 43 of this title,
except that in the case of a removal under paragraph (2) of
this subsection the career appointee shall, at least 15 days
before the removal, be entitled, upon request, to an informal
hearing before an official designated by the Merit Systems
Protection Board at which the career appointee may appear and
present arguments, but such hearing shall not give the career
appointee the right to initiate an action with the Board under
section 7701 of this title, nor need the removal action be
delayed as a result of the granting of such hearing.
(b)(1) Except as provided in paragraph (2) of this
subsection, a career appointee in an agency may not be
involuntarily removed--
(A) within 120 days after an appointment of the head
of the agency; or
(B) within 120 days after the appointment in the
agency of the career appointee's most immediate
supervisor who--
(i) is a noncareer appointee; and
(ii) has the authority to remove the career
appointee.
(2) Paragraph (1) of this subsection does not apply with
respect to--
(A) any removal under section 4314(b)(3) of this
title; [or]
(B) any disciplinary action initiated before an
appointment referred to in paragraph (1) of this
subsection[.]; or
(C) any removal under subchapter VI of this
title or section 713 of title 38.
(c) A limited emergency appointee, limited term appointee, or
noncareer appointee may be removed from the service at any
time.
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) the appointee has successfully completed the
probationary period established under section 3393(d)
of this title; and
(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.
(c)(1) A former career appointee shall be reinstated, without
regard to section 3393(b) and (c) of this title, to any vacant
Senior Executive Service position in an agency for which the
appointee is qualified if--
(A) the individual was a career appointee on May 31,
1981;
(B) the appointee was removed from the Senior
Executive Service under section 3595 of this title
before October 1, 1984, due to a reduction in force in
that agency;
(C) before the removal occurred, the appointee
successfully completed the probationary period
established under section 3393(d) of this title; and
(D) the appointee applies for that vacant position
within one year after the Office receives certification
regarding that appointee pursuant to section
3595(b)(3)(B) of this title.
(2) A career appointee is entitled to appeal to the Merit
Systems Protection Board under section 7701 of this title any
determination by the agency that the appointee is not qualified
for a position for which the appointee applies under paragraph
(1) of this subsection.
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.
(b) A career appointee who has completed the probationary
period under section 3393(d) of this title, and who--
(1) is removed from the Senior Executive Service for
less than fully successful executive performance as
determined under subchapter II of chapter 43 of this
title; or
(2) is removed from the Senior Executive Service
under paragraph (4) or (5) of section 3595(b) 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) the position in which any career appointee is
placed under such subsections shall be a continuing
position at GS-15 of the General Schedule or classified
above GS-15 pursuant to section 5108, or an equivalent
position, and, in the case of a career appointee
referred to in subsection (a) of this section, the
career appointee shall be entitled to an appointment of
a tenure equivalent to the tenure of the appointment
held in the position from which the career appointee
was appointed;
[(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
(C) the placement of any career appointee under
subsection (a) or (b) of this section may not be made
to a position which would cause the separation or
reduction in grade of any other employee.
(2) An employee who is receiving basic pay under paragraph
(1)(B)(ii) or (iii) of this subsection is entitled to have the
basic pay rate of the employee increased by 50 percent of the
amount of each increase in the maximum rate of basic pay for
the grade of the position in which the employee is placed under
subsection (a) or (b) of this section until the rate is equal
to the rate in effect under paragraph (1)(B)(i) of this
subsection for the position in which the employee is placed.
* * * * * * *
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) Each agency shall, in accordance with standards
established by the Office of Personnel Management, develop one
or more performance appraisal systems designed to--
(1) permit the accurate evaluation of performance in
any position on the basis of criteria which are related
to the position and which specify the critical elements
of the position;
(2) provide for systematic appraisals of performance
of senior executives;
(3) encourage excellence in performance by senior
executives; and
(4) provide a basis for making eligibility
determinations for retention in the Senior Executive
Service and for Senior Executive Service performance
awards.
(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;
(2) that written appraisals of performance are based
on the individual and organizational performance
requirements established for the rating period
involved; and
(3) that each senior executive in the agency is
provided a copy of the appraisal and rating under
section 4314 of this title and is given an opportunity
to respond in writing and have the rating reviewed by
an employee, or (with the consent of the senior
executive) a commissioned officer in the uniformed
services serving on active duty, in a higher level in
the agency before the rating becomes final.
(c)(1) The Office shall review each agency's performance
appraisal system under this section, and determine whether the
agency performance appraisal system meets the requirements of
this subchapter.
(2) The Comptroller General shall from time to time review
performance appraisal systems under this section to determine
the extent to which any such system meets the requirements
under this subchapter and shall periodically report its
findings to the Office and to each House of the Congress.
(3) If the Office determines that an agency performance
appraisal system does not meet the requirements under this
subchapter (including regulations prescribed under section
4315), the agency shall take such corrective action as may be
required by the Office.
(d) A senior executive may not appeal any appraisal and
rating under any performance appraisal system under this
section.
* * * * * * *
SUBPART E--ATTENDANCE AND LEAVE
* * * * * * *
CHAPTER 63--LEAVE
SUBCHAPTER I--ANNUAL AND SICK LEAVE
Sec.
6301. Definitions.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
6330. Mandatory leave for Senior Executive Service career appointees
subject to removal.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
Sec. 6330. Mandatory leave for Senior Executive Service career
appointees subject to removal
(a) In this section--
(1) the term ``employee'' means an employee (as that
term is defined in section 7541(1)) who has received
written notice of removal from the civil service under
subchapter V of chapter 75; 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 OF 14 DAYS OR LESS
Sec.
7501. Definitions.
* * * * * * *
SUBCHAPTER VI--SENIOR EXECUTIVE SERVICE: EXPEDITED REMOVAL
7551. Definitions.
7552. Actions covered.
7553. Cause and procedure.
7554. Expedited review of appeal.
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, except
as provided in section 1599e of title 10, 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
(2) ``suspension'' means the placing of an employee,
for disciplinary reasons, in a temporary status without
duties and pay.
* * * * * * *
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 7542. Actions covered
This subchapter applies to a removal from the civil service
or suspension for more than 14 days, but does not apply to an
action initiated under section 1215 of this title, to a
suspension or removal under section 7532 of this title, [or to
a removal under section 3592 or 3595 of this title] to a
removal under section 3592 or 3595 of this title, to a
suspension under section 7503, to a removal or transfer under
section 7553, or a removal or transfer under section 713 of
title 38.
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;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits
and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and specific reasons therefor
at the earliest practicable date.
(c) An agency may provide, by regulation, for a hearing which
may be in lieu of or in addition to the opportunity to answer
provided under subsection (b)(2) of this section.
(d) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of this title.
(e) Copies of the notice of proposed action, the answer of
the employee when written, and a summary thereof when made
orally, the notice of decision and reasons therefor, and any
order effecting an action covered by this subchapter, together
with any supporting material, shall be maintained by the agency
and shall be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon the
employee's request.
* * * * * * *
SUBCHAPTER VI--SENIOR EXECUTIVE SERVICE: EXPEDITED REMOVAL
Sec. 7551. Definitions
In this subchapter--
(1) the term ``employee'' has the meaning given such
term in section 7541(1), but does not include any
career appointee in the Senior Executive Service within
the Department of Veterans Affairs; and
(2) the term ``misconduct'' includes neglect of duty,
malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer
of function.
Sec. 7552. Actions covered
This subchapter applies to a removal from the civil service
or a transfer from the Senior Executive Service, but does not
apply to an action initiated under section 1215, to a removal
under section 3592 or 3595, to a suspension under section 7503,
to a suspension or removal under section 7532, to a suspension
or removal under section 7542, or to a suspension or removal
under section 713 of title 38.
Sec. 7553. Cause and procedure
(a)(1) Under regulations prescribed by the Office of
Personnel Management, the head of an agency may remove an
employee of the agency from the Senior Executive Service if the
head determines that the performance or misconduct of the
individual warrants such removal. If the head so removes such
an individual, the head may--
(A) remove the individual from the civil service; or
(B) in the case of an employee described in paragraph
(2), transfer the employee from the Senior Executive
Service to a General Schedule position at any grade of
the General Schedule for which the employee is
qualified and that the head determines is appropriate.
(2) An employee described in this paragraph is an individual
who--
(A) previously occupied a permanent position within
the competitive service;
(B) previously occupied a permanent position within
the excepted service; or
(C) prior to employment as a career appointee at the
agency, did not occupy any position within the Federal
Government.
(3) An employee against whom an action is proposed under
paragraph (1) is entitled to 5 days' advance written notice.
(b)(1) Notwithstanding any other provision of law, including
section 3594, any employee transferred to a General Schedule
position under subsection (a)(1)(B) shall, beginning on the
date of such transfer, receive the annual rate of pay
applicable to such position.
(2) An employee so transferred may not be placed on
administrative leave or any other category of paid leave during
the period during which an appeal (if any) under this section
is ongoing, and may only receive pay if the individual reports
for duty. If an employee so transferred does not report for
duty, such employee shall not receive pay or other benefits
pursuant to section 7554(e).
(c) Not later than 30 days after removing or transferring an
employee under subsection (a), the applicable head of the
agency shall submit to Congress notice in writing of such
removal or transfer and the reason for such removal or
transfer.
(d) Section 3592(b)(1) does not apply to an action to remove
or transfer an employee under this section.
(e) Subject to the requirements of section 7554, an employee
may appeal a removal or transfer under subsection (a) to the
Merit Systems Protection Board under section 7701, but only if
such appeal is made not later than seven days after the date of
such removal or transfer.
Sec. 7554. Expedited review of appeal
(a) Upon receipt of an appeal under section 7553(d), the
Merit Systems Protection Board shall refer such appeal to an
administrative judge pursuant to section 7701(b)(1). The
administrative judge shall--
(1) expedite any such appeal under such section; and
(2) in any such case, issue a decision not later than
21 days after the date of the appeal.
(b) Notwithstanding any other provision of law, including
section 7703, the decision of an administrative judge under
subsection (a) shall be final and shall not be subject to any
further appeal.
(c) In any case in which the administrative judge cannot
issue a decision in accordance with the 21-day requirement
under subsection (a)(2), the removal or transfer is final. In
such a case, the Merit Systems Protection Board shall, within
14 days after the date that such removal or transfer is final,
submit to Congress a report that explains the reasons why a
decision was not issued in accordance with such requirement.
(d) The Merit Systems Protection Board or administrative
judge may not stay any removal or transfer under this section.
(e) During the period beginning on the date on which an
employee appeals a removal from the civil service under section
7553(d) and ending on the date that the administrative judge
issues a final decision on such appeal, such employee may not
receive any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or
benefits.
* * * * * * *
----------
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 7--EMPLOYEES
* * * * * * *
Sec. 713. Senior executives: removal based on performance or misconduct
(a) In General.--(1) The Secretary may remove an individual
employed in a senior executive position at the Department of
Veterans Affairs from the senior executive position if the
Secretary determines the performance or misconduct of the
individual warrants such removal. If the Secretary so removes
such an individual, the Secretary may--
(A) remove the individual from the civil service (as
defined in section 2101 of title 5); or
(B) in the case of an individual described in
paragraph (2), transfer the individual from the senior
executive position to a General Schedule position at
any grade of the General Schedule for which the
individual is qualified and that the Secretary
determines is appropriate.
(2) An individual described in this paragraph is an
individual who--
(A) previously occupied a permanent position within
the competitive service (as that term is defined in
section 2102 of title 5);
(B) previously occupied a permanent position within
the excepted service (as that term is defined in
section 2103 of title 5); or
(C) prior to employment in a senior executive
position at the Department of Veterans Affairs, did not
occupy any position within the Federal Government.
(b) Pay of Transferred Individual.--(1) Notwithstanding any
other provision of law, including the requirements of section
3594 of title 5, any individual transferred to a General
Schedule position under subsection (a)(2) shall, beginning on
the date of such transfer, receive the annual rate of pay
applicable to such position.
(2) An individual so transferred may not be placed on
administrative leave or any other category of paid leave during
the period during which an appeal (if any) under this section
is ongoing, and may only receive pay if the individual reports
for duty. If an individual so transferred does not report for
duty, such individual shall not receive pay or other benefits
pursuant to subsection (e)(5).
(c) Notice to Congress.--Not later than 30 days after
removing or transferring an individual from a senior executive
position under subsection (a), the Secretary shall submit to
the Committees on Veterans' Affairs of the Senate and House of
Representatives notice in writing of such removal or transfer
and the reason for such removal or transfer.
(d) Procedure.--(1) The procedures under section 7543(b) of
title 5 shall not apply to a removal or transfer under this
section.
(2)(A) Subject to subparagraph (B) and subsection (e), any
removal or transfer under subsection (a) may be appealed to the
Merit Systems Protection Board under section 7701 of title 5.
(B) An appeal under subparagraph (A) of a removal or transfer
may only be made if such appeal is made not later than seven
days after the date of such removal or transfer.
(e) Expedited Review by Administrative Judge.--(1) Upon
receipt of an appeal under subsection (d)(2)(A), the Merit
Systems Protection Board shall refer such appeal to an
administrative judge pursuant to section 7701(b)(1) of title 5.
The administrative judge shall expedite any such appeal under
such section and, in any such case, shall issue a decision not
later than 21 days after the date of the appeal.
(2) Notwithstanding any other provision of law, including
section 7703 of title 5, the decision of an administrative
judge under paragraph (1) shall be final and shall not be
subject to any further appeal.
(3) In any case in which the administrative judge cannot
issue a decision in accordance with the 21-day requirement
under paragraph (1), the removal or transfer is final. In such
a case, the Merit Systems Protection Board shall, within 14
days after the date that such removal or transfer is final,
submit to Congress and the Committees on Veterans' Affairs of
the Senate and House of Representatives a report that explains
the reasons why a decision was not issued in accordance with
such requirement.
(4) The Merit Systems Protection Board or administrative
judge may not stay any removal or transfer under this section.
(5) During the period beginning on the date on which an
individual appeals a removal from the civil service under
subsection (d) and ending on the date that the administrative
judge issues a final decision on such appeal, such individual
may not receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special
payments, or benefits.
(6) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board, and to any
administrative judge to whom an appeal under this section is
referred, such information and assistance as may be necessary
to ensure an appeal under this subsection is expedited.
(f) Relation to Title 5.--(1) The authority provided by this
section is in addition to the authority provided by section
3592 [or subchapter V], chapter 43, or subchapters V and VI of
chapter 75 of title 5.
(2) Section 3592(b)(1) of title 5 does not apply to an action
to remove or transfer an individual under this section.
(g) Definitions.--In this section:
(1) The term ``individual'' means--
(A) a career appointee (as that term is
defined in section 3132(a)(4) of title 5); or
(B) any individual who occupies an
administrative or executive position and who
was appointed under section 7306(a) or section
7401(1) of this title.
(2) The term ``misconduct'' includes neglect of duty,
malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer
of function.
(3) The term ``senior executive position'' means--
(A) with respect to a career appointee (as
that term is defined in section 3132(a)(4) of
title 5), a Senior Executive Service position
(as such term is defined in section 3132(a)(2)
of title 5); and
(B) with respect to an individual appointed
under section 7306(a) or section 7401(1) of
this title, an administrative or executive
position.
* * * * * * *
MINORITY VIEWS
Committee Democrats oppose H.R. 4358, the Senior Executive
Service Accountability Act, because it would undermine due
process protections that were put in place in the 19th Century
to ensure that the civil service is free of political
influence. The legislation also could enable retaliation
against whistleblowers.
The legislation would shorten the notice period before an
agency could terminate or suspend a senior executive from 30 to
15 days. This shortened notice period may not be sufficient
time for the employee to defend against the charge.
The bill also would allow an agency to charge a senior
executive's accrued annual leave pending removal. This could be
construed by courts as an unlawful ``taking'' of a property
right that requires notice and an opportunity to respond. In
addition, employees faced with the possibility of losing their
accrued leave may be less willing to disclose violations of law
or waste, fraud, and abuse.
The expedited removal process required in the legislation
would not allow a senior executive an opportunity to respond
prior to removal or transfer. Although the legislation would
permit appeal rights after removal or transfer, the rights
would be limited. The senior executive would have only 7 days
from the personnel action to file an appeal. The senior
executive would not be entitled to appeal the administrative
judge's decision, and if the administrative judge could not
issue a decision within 21 days, the removal or transfer would
be deemed final. The constitutionality of the identical
provisions of the Veterans Access, Choice, and Accountability
Act is currently being challenged in the Federal Circuit Court
of Appeals.
The legislation also would eliminate the authority of the
Merit Systems Protection Board or an administrative judge to
issue a stay, which is critical for protecting whistleblowers
from retaliation. In addition, since the bill would allow an
agency to transfer a senior executive to a position ``at any
grade'' of the General Schedule, it would not prevent the
transfer of a senior executive to a lower level General
Schedule position for which he or she would be overqualified.
This provision could also be used to retaliate against
whistleblowers.
The legislation's arbitrary, across-the-board extension of
the probationary period from one year to two years would extend
the period during which an agency could remove or retaliate
against an employee without adequate recourse. The Merit
Systems Protection Board recently noted that the current one-
year probationary period is not being fully and effectively
utilized by agencies, so it is unclear why extending the
probationary period to all agencies in this manner would be
necessary.
The legislation's requirement that agencies reassign senior
executives to different locations every five years is arbitrary
and inflexible, and it would not allow agencies discretion to
consider their needs or the developmental needs of their senior
executives. This mandate is also unnecessary. The President
recently issued an Executive Order to strengthen the Senior
Executive Service which requires agencies to establish a two-
year plan for increasing the mobility of their senior
executives.
During Committee consideration of the bill, Representative
Norton offered an amendment to strike the problematic
provisions of the bill, but the amendment was not accepted.
We fully support the goal of improving the accountability
of the Senior Executive Service, but such reforms must be
meaningful, fair, and not instituted at the cost of due process
and whistleblower protections.
For these reasons, Committee Democrats oppose H.R. 4358.
Elijah E. Cummings,
Ranking Member.
[all]