[House Report 112-686]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-686
======================================================================
GOVERNMENT EMPLOYEE ACCOUNTABILITY ACT
_______
September 21, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 6016]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 6016) to amend title 5, United
States Code, to provide for administrative leave requirements
with respect to Senior Executive Service employees, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 3
Section-by-Section............................................... 4
Explanation of Amendments........................................ 5
Committee Consideration.......................................... 5
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
Federal Advisory Committee Act................................... 6
Unfunded Mandate Statement....................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
Budget Authority and Congressional Budget Office Cost Estimate... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Minority Views................................................... 11
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Government Employee Accountability
Act''.
SEC. 2. ADMINISTRATIVE LEAVE FOR SENIOR EXECUTIVE SERVICE EMPLOYEES.
(a) In General.--Chapter 75 of title 5, United States Code, is
amended by adding at the end the following:
``SUBCHAPTER VI--ADMINISTRATIVE LEAVE FOR SENIOR EXECUTIVE SERVICE
EMPLOYEES
``Sec. 7551. Definitions
``For the purposes of this subchapter--
``(1) `employee' has the meaning given such term in section
7541; and
``(2) `administrative leave' means an absence from duty
administratively authorized, for disciplinary reasons, of a
period not greater than 90 days.
``Sec. 7552. Actions covered
``This subchapter applies to administrative leave.
``Sec. 7553. Cause and procedure
``(a)(1) Under regulations prescribed by the Office of Personnel
Management, the head of an agency may place an employee on
administrative leave, without loss of pay and without charge to annual
or sick leave, only for misappropriation of funds, misconduct, neglect
of duty, or malfeasance.
``(2) If the head of an agency determines that such employee's
conduct is serious or flagrant, the head may place such employee on
administrative leave under this subchapter without pay.
``(b)(1) At the end of each 2-week period during a period of
administrative leave implemented under this section, the head of the
relevant agency shall review the investigation into the employee with
respect to the misappropriation of funds, misconduct, neglect of duty,
or malfeasance.
``(2) Not later than 5 business days after the end of each such 2-
week period, such head shall submit a report describing such review 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.
``(3) At the end of a period of administrative leave implemented
under this section, the head of the agency shall--
``(A) remove an employee placed on administrative leave under
this section;
``(B) suspend such employee without pay; or
``(C) reinstate or restore such employee to duty.
``(4) At the discretion of the agency head, an employee may be placed
on one additional period of administrative leave with respect to an
action under this subchapter.
``(c) An employee against whom an action covered by this subchapter
is proposed is entitled to, before being placed on administrative leave
under this section--
``(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
``(A) there is reasonable cause to believe that the
employee has committed a crime for which a sentence of
imprisonment can be imposed; or
``(B) the agency head determines that the employee's
conduct with respect to which an action covered by this
subchapter is proposed is serious or flagrant;
``(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.
``(d) For purposes of subsection (c)(1)(A), the head of an agency may
determine that there is reasonable cause to believe that an employee
has committed a crime for which a sentence of imprisonment can be
imposed if the head receives a report from such agency's Inspector
General, or, in the case of an agency without an Inspector General,
from an employee of the agency designated by such head to carry out
duties similar to duties of an inspector general for purposes of this
subsection, indicating that such employee has committed such a crime.
``(e) 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 (c)(2).
``(f) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701.
``(g) 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.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 75 of title 5, United States Code, is amended by adding after
the item relating to section 7543 the following:
``subchapter vi--administrative leave for senior executive service
employees
``7551. Definitions.
``7552. Actions covered.
``7553. Cause and procedure.''.
SEC. 3. SUSPENSION OF SENIOR EXECUTIVE SERVICE EMPLOYEES.
Section 7543 of title 5, United States Code, is amended--
(1) in subsection (a), by inserting ``misappropriation of
funds,'' after ``malfeasance,'';
(2) in subsection (b), by amending paragraph (1) to read as
follows:
``(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
``(A) there is reasonable cause to believe that the
employee has committed a crime for which a sentence of
imprisonment can be imposed; or
``(B) the agency head determines that the employee's
conduct with respect to which an action covered by this
subchapter is proposed is serious or flagrant;''; and
(3) by adding at the end the following:
``(f) For purposes of subsection (b)(1)(A), the head of an agency may
determine that there is reasonable cause to believe that an employee
has committed a crime for which a sentence of imprisonment can be
imposed if the head receives a report from such agency's Inspector
General, or, in the case of an agency without an Inspector General,
from an employee of the agency designated by such head to carry out
duties similar to duties of an inspector general for purposes of this
subsection, indicating that such employee has committed such a
crime.''.
Committee Statement and Views
PURPOSE AND SUMMARY
The Senior Executive Service (SES) was designed to ensure
accountability for honest, economical, and efficient
government.\1\ H.R. 6016 provides agencies with an additional
tool to hold SES employees accountable for their actions. The
legislation allows an SES employee to be fired for
misappropriation of funds and gives agencies discretion to
place SES employees on unpaid leave, while maintaining existing
due process rights. The legislation responds to the Committee's
review of the planning and execution of the General Services
Administration's (GSA) 2010 Western Regional Conference,
including GSA's response to employee misconduct. The bill
represents an important step in ensuring senior leaders are
held to a high standard, especially when their conduct is
flagrant.
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\1\5 U.S.C. 3131(10).
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BACKGROUND AND NEED FOR LEGISLATION
In April 2012, the Committee held a hearing concerning the
excessive, wasteful, and in some cases impermissible spending
that occurred during the preparation for and implementation of
GSA's 2010 Western Regional Conference.\2\ The GSA spent more
than $820,000 on a conference originally budgeted at $250,000.
The GSA had no triggers or controls in place to stop the
flagrant spending.
---------------------------------------------------------------------------
\2\Addressing GSA's Culture of Wasteful Spending: Hearing before
the H. Comm. on Oversight and Gov't Reform, 112th Con. (April 4, 2012).
---------------------------------------------------------------------------
GSA employees, including Mr. Jeff Neely, Regional
Commissioner, Public Buildings Service Pacific Rim Region,
failed to follow GSA policy and Federal procurement law.
In May 2011, GSA Inspector General Brian Miller personally
briefed then-GSA Administrator Martha Johnson and then-Senior
Counselor to the Administrator Steve Leeds on an investigation
into the Western Regional Conference.\3\ The Office of
Inspector General (OIG) subsequently presented GSA leadership
with the final management deficiency report concerning the
conference on February 17, 2012.\4\ The agency typically has 30
days to review and respond. In this case, GSA requested an
additional 30 days. Despite having 60 days to consider taking
action from receipt of the final management deficiency report,
then-Administrator Johnson took no action.
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\3\Briefing by Gen. Serv. Admin. Office of Inspector Gen. for H.
Comm. on Oversight & Gov't Reform staff (Apr. 4, 2012) [hereinafter OIG
briefing].
\4\OIG briefing.
---------------------------------------------------------------------------
The Washington Post broke the news of then-Administrator
Johnson's resignation on April 2, 2012, the same day the OIG
released the report.\5\ On April 20, 2012, GSA provided notice
of its intent to terminate Mr. Jeff Neely for misconduct. Mr.
Neely was placed on paid administrative leave. Rather than
attempting to contest the charges, Mr. Neely retired.\6\
---------------------------------------------------------------------------
\5\Lisa Rein & Joe Davidson, GSA Chief Resigns Amid Reports of
Excessive Spending, Wash. Post (Apr. 2, 2012).
\6\E-mail from Deputy Associate Admin. for Legislative Affairs to
H. Oversight & Gov't Reform Comm. staff (Apr. 10, 2012).
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LEGISLATIVE HISTORY
The Civil Service Reform Act of 1978 established the Senior
Executive Service and clarified the grounds for taking action
against SES employees whose conduct was unacceptable.\7\
---------------------------------------------------------------------------
\7\P.L. 94-454.
---------------------------------------------------------------------------
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Government Employee
Accountability Act.''
Section 2. Administrative leave for Senior Executive Service employees
Section 2 establishes a new subchapter within chapter 75 of
title 5. The new subchapter provides the head of an agency
authority to use administrative leave when disciplining a
member of the Senior Executive Service (SES). For purposes of
the new subchapter, administrative leave is defined as an
authorized absence from duty for a period not to exceed 90
days, for disciplinary reasons. The administrative leave
options available to agencies under the new subchapter VI are
in addition to agencies' existing authority to grant employees
excused absences and place them on administrative leave for
reasons determined to be in the government's interest.
Under regulations prescribed by the Office of Personnel
Management, the head of an agency may place an SES employee on
administrative leave, with pay, for misappropriation of funds,
misconduct, neglect of duty, or malfeasance. SES employees
whose misconduct is determined to be serious or flagrant may be
placed on administrative leave without pay.
Not later than 5 business days after the end of the two-
week period of administrative leave, the agency head must
review the investigation into the employee's conduct and
describe the review to the House Committee on Oversight and
Government Reform and Senate Committee on Homeland Security and
Governmental Affairs.
At the end of the period of administrative leave, the
agency must: (1) remove the employee; (2) suspend the employee
without pay; or (3) restore the employee to duty. The agency
head has discretion to place the employee on one additional
period of administrative leave.
Employees retain their existing due process rights afforded
to them under chapter 75, including the right to appeal to the
Merit Systems Protection Board.
An agency head may use an Inspector General report that
states an SES employee has committed a crime as the basis for
removing or suspending the employee without pay. An agency head
may also determine the conduct is serious or flagrant. In these
instances, the employee is not entitled to 30 days' advance
notice of administrative leave.
Section 3. Suspension of Senior Executive Service employees
Section 3 allows for an SES employee to be terminated or
suspended without pay for more than 14 days for
misappropriation of funds. An agency head may use an Inspector
General report that states a Senior Executive Service employee
has committed a crime as the basis for removing or suspending
the employee without pay. In this instance, the employee is not
entitled to 30 days' advance notice of the proposed termination
or suspension without pay. The agency head may also elect to
waive the advance notice requirement if he determines the
conduct to be serious or flagrant.
Explanation of Amendments
Mr. Kelly offered a substitute amendment to make clear an
agency could waive the advance notice requirement when placing
a Senior Executive Service on unpaid leave or taking an adverse
action against a Senior Executive Service employee if the
conduct was serious or flagrant. In addition, the substitute
amendment made a number of technical changes to the bill. The
amendment was agreed to by voice vote.
Committee Consideration
On June 27, 2012, the Committee met in open session and
ordered reported favorably the bill, H.R. 6016, as amended, by
roll call vote, a quorum being present.
Roll Call Votes
There were no roll call votes during consideration of H.R.
6016.
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 provides agencies with an additional tool to hold SES
employees accountable for their actions. Legislative branch
employees and their families, to the extent that they are
otherwise eligible for the benefits provided by this
legislation, have equal access to its benefits.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 6016 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of Rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R.6016. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 6016 from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 14, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6016, the
Government Employee Accountability Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Santiago
Vallinas.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 6016--Government Employee Accountability Act
CBO estimates that implementing H.R. 6016 would not have a
significant impact on federal spending. Enacting the bill could
affect revenues; therefore, pay-as-you-go procedures apply.
However, CB0 estimates that any effects would be insignificant
for each year.
H.R. 6016 would allow agencies to place Senior Executive
Service (SES) employees on unpaid administrative leave for up
to 180 days if they are accused of misappropriation of funds,
misconduct, neglect of duty, or malfeasance. Currently,
investigations of such offenses generally require agencies to
initially place employees on paid leave, but later those
employees may be suspended indefinitely without pay. Since
administrative leave for misconduct is not tracked separately
it is difficult to quantify the number of instances that it has
occurred, but according to the Office of Personnel Management
and other federal agencies, it is very uncommon. CBO assumes
that citations for such misconduct will continue to be uncommon
and therefore only a few SES employees would be subject to
unpaid leave over the 2013-2022 period.
Implementing this bill would lead to lower discretionary
spending for salaries and expenses for those placed on unpaid
administrative leave, but CBO estimates that such reductions
would be small. Because affected employees would not receive a
salary for a period of time, they also would not make scheduled
retirement contributions, resulting in a reduction in revenues.
CBO estimates that those reductions would not be significant.
H.R. 6016 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Santiago
Vallinas. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
subchapter i--suspension of 14 days or less
Sec.
7501. Definitions.
* * * * * * *
subchapter vi--administrative leave for senior executive service
employees
7551. Definitions.
7552. Actions covered.
7553. Cause and procedure.
* * * * * * *
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 7543. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this
subchapter against an employee only for misconduct, neglect of
duty, malfeasance, misappropriation of funds, 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 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;]
(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
(A) there is reasonable cause to believe that
the employee has committed a crime for which a
sentence of imprisonment can be imposed; or
(B) the agency head determines that the
employee's conduct with respect to which an
action covered by this subchapter is proposed
is serious or flagrant;
* * * * * * *
(f) For purposes of subsection (b)(1)(A), the head of an
agency may determine that there is reasonable cause to believe
that an employee has committed a crime for which a sentence of
imprisonment can be imposed if the head receives a report from
such agency's Inspector General, or, in the case of an agency
without an Inspector General, from an employee of the agency
designated by such head to carry out duties similar to duties
of an inspector general for purposes of this subsection,
indicating that such employee has committed such a crime.
SUBCHAPTER VI--ADMINISTRATIVE LEAVE FOR SENIOR EXECUTIVE SERVICE
EMPLOYEES
Sec. 7551. Definitions
For the purposes of this subchapter--
(1) ``employee'' has the meaning given such term in
section 7541; and
(2) ``administrative leave'' means an absence from
duty administratively authorized, for disciplinary
reasons, of a period not greater than 90 days.
Sec. 7552. Actions covered
This subchapter applies to administrative leave.
Sec. 7553. Cause and procedure
(a)(1) Under regulations prescribed by the Office of
Personnel Management, the head of an agency may place an
employee on administrative leave, without loss of pay and
without charge to annual or sick leave, only for
misappropriation of funds, misconduct, neglect of duty, or
malfeasance.
(2) If the head of an agency determines that such employee's
conduct is serious or flagrant, the head may place such
employee on administrative leave under this subchapter without
pay.
(b)(1) At the end of each 2-week period during a period of
administrative leave implemented under this section, the head
of the relevant agency shall review the investigation into the
employee with respect to the misappropriation of funds,
misconduct, neglect of duty, or malfeasance.
(2) Not later than 5 business days after the end of each such
2-week period, such head shall submit a report describing such
review 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.
(3) At the end of a period of administrative leave
implemented under this section, the head of the agency shall--
(A) remove an employee placed on administrative leave
under this section;
(B) suspend such employee without pay; or
(C) reinstate or restore such employee to duty.
(4) At the discretion of the agency head, an employee may be
placed on one additional period of administrative leave with
respect to an action under this subchapter.
(c) An employee against whom an action covered by this
subchapter is proposed is entitled to, before being placed on
administrative leave under this section--
(1) at least 30 days' advance written notice, stating
specific reasons for the proposed action, unless--
(A) there is reasonable cause to believe that
the employee has committed a crime for which a
sentence of imprisonment can be imposed; or
(B) the agency head determines that the
employee's conduct with respect to which an
action covered by this subchapter is proposed
is serious or flagrant;
(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.
(d) For purposes of subsection (c)(1)(A), the head of an
agency may determine that there is reasonable cause to believe
that an employee has committed a crime for which a sentence of
imprisonment can be imposed if the head receives a report from
such agency's Inspector General, or, in the case of an agency
without an Inspector General, from an employee of the agency
designated by such head to carry out duties similar to duties
of an inspector general for purposes of this subsection,
indicating that such employee has committed such a crime.
(e) 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 (c)(2).
(f) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701.
(g) 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.
* * * * * * *
MINORITY VIEWS
The purposes of H.R. 6016--to prevent the misappropriation
of taxpayer dollars by Senior Executive Service employees and
hold them accountable for such misconduct--are commendable.
However, current law (Subchapter V of Chapter 75 of Title 5 of
the United States Code) already provides authority for agencies
to take disciplinary action against Senior Executives who
misappropriate funds. In addition, although some of the bill's
deficiencies were addressed prior to the Committee's
consideration, other issues remain unaddressed. For example:
It is unclear how ``serious or flagrant'' conduct
would be defined and how such conduct differs from
``misconduct, neglect of duty or malfeasance'' as set forth in
current law.
It is unclear how ``misappropriation of funds''
differs from ``misconduct or malfeasance'' as set forth in
current law.
It is unclear how administrative leave without
pay, as redefined by the bill, differs from suspension, which
is an available remedy under current law.
It is unclear why the bill appears to eliminate
agency authority to use administrative leave for non-
disciplinary reasons, which is a necessary management tool.
It is unclear why the bill appears to force agency
heads to decide whether to remove, suspend, or reinstate
employees even if investigations have not yet been completed,
which could interfere with ongoing investigations, jeopardize
the due process rights of employees, and risk overturning
disciplinary actions on appeal.
It is unclear whether the bill provides sufficient
due process rights for employees, especially in cases in which
conduct is serious or flagrant or when there is reasonable
cause to believe that an employee has committed a crime.
It is unclear under the bill whether an Inspector
General's report would be the sole basis for agencies to
determine that employees may have engaged in criminal conduct.
The Majority has acknowledged some of the problems in the
bill, and we appreciate their commitment to work with the
Minority to craft an appropriate solution.
Any misuse of taxpayer funds is unacceptable, and Congress
should help agencies hold federal employees accountable for
waste, fraud, and abuse. However, the bad actions of a few
individuals should not be allowed to undermine the reputation
of our nation's dedicated federal employees. These honest and
hardworking men and women devote their lives to serving the
public, and the vast majority of federal workers are excellent
stewards of the public trust.
Elijah E. Cummings.