[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

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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.

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   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]