[House Report 113-186]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-186
======================================================================
GOVERNMENT EMPLOYEE ACCOUNTABILITY ACT
_______
July 31, 2013.--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. 2579]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 2579) to amend title 5, United
States Code, to provide for investigative 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
Amendment........................................................ 2
Committee Statement and Views.................................... 4
Section-by-Section............................................... 5
Explanation of Amendments........................................ 6
Committee Consideration.......................................... 7
Roll Call Votes.................................................. 7
Application of Law to the Legislative Branch..................... 7
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Federal Advisory Committee Act................................... 8
Unfunded Mandate Statement....................................... 8
Earmark Identification........................................... 8
Committee Estimate............................................... 8
Budget Authority and Congressional Budget Office Cost Estimate... 8
Changes in Existing Law Made by the Bill as Reported............. 9
Minority Views................................................... 15
Amendment
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. SUSPENSION FOR 14 DAYS OR LESS FOR SENIOR EXECUTIVE SERVICE
EMPLOYEES.
Paragraph (1) of section 7501 of title 5, United States Code, is
amended to read as follows:
``(1) `employee' means--
``(A) an individual in the competitive service who is
not serving a probationary 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''.
SEC. 3. INVESTIGATIVE LEAVE AND TERMINATION AUTHORITY 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--INVESTIGATIVE 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) `investigative leave' means a temporary absence without
duty for disciplinary reasons, of a period not greater than 90
days.
``Sec. 7552. Actions covered
``This subchapter applies to investigative leave.
``Sec. 7553. Cause and procedure
``(a)(1) Under regulations prescribed by the Office of Personnel
Management, an agency may place an employee on investigative leave,
without loss of pay and without charge to annual or sick leave, only
for misconduct, neglect of duty, malfeasance, or misappropriation of
funds.
``(2) If an agency determines, as prescribed in regulation by the
Office of Personnel Management, that such employee's conduct is
flagrant and that such employee intentionally engaged in such conduct,
the agency may place such employee on investigative leave under this
subchapter without pay.
``(b)(1) At the end of each 45-day period during a period of
investigative leave implemented under this section, the relevant agency
shall review the investigation into the employee with respect to the
misconduct, neglect of duty, malfeasance, or misappropriation of funds.
``(2) Not later than 5 business days after the end of each such 45-
day period, the agency 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 investigative leave implemented under
this section, the agency shall--
``(A) remove an employee placed on investigative leave under
this section;
``(B) suspend such employee without pay; or
``(C) reinstate or restore such employee to duty.
``(4) The agency may extend the period of investigative leave with
respect to an action under this subchapter for an additional period not
to exceed 90 days.
``(c) An employee against whom an action covered by this subchapter
is proposed is entitled to, before being placed on investigative 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 determines, as prescribed in
regulation by the Office of Personnel Management, that
the employee's conduct with respect to which an action
covered by this subchapter is proposed is flagrant and
that such employee intentionally engaged in such
conduct;
``(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) 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).
``(e) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701.
``(f) 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 VII--REMOVAL OF SENIOR EXECUTIVE SERVICE EMPLOYEES
``Sec. 7561. Definition
``For purposes of this subchapter, the term `employee' has the
meaning given such term in section 7541.
``Sec. 7562. Removal of Senior Executive Service employees
``(a) Notwithstanding any other provision of law and consistent with
the requirements of subsection (b), the head of an agency may remove an
employee for serious neglect of duty, misappropriation of funds, or
malfeasance if the head of the agency--
``(1) determines that the employee knowingly acted in a
manner that endangers the interest of the agency mission;
``(2) considers the removal to be necessary or advisable in
the interests of the United States; and
``(3) determines that the procedures prescribed in other
provisions of law that authorize the removal of such employee
cannot be invoked in a manner that the head of an agency
considers consistent with the efficiency of the Government.
``(b) An employee may not be removed under this section--
``(1) on any basis that would be prohibited under--
``(A) any provision of law referred to in section
2302(b)(1); or
``(B) paragraphs (8) or (9) of section 2302(b); or
``(2) on any basis, described in paragraph (1), as to which
any administrative or judicial proceeding--
``(A) has been commenced by or on behalf of such
employee; and
``(B) is pending.
``(c) An employee removed under this section shall be notified of the
reasons for such removal. Within 30 days after the notification, the
employee is entitled to submit to the official designated by the head
of the agency statements or affidavits to show why the employee should
be restored to duty. If such statements and affidavits are submitted,
the head of the agency shall provide a written response, and may
restore the employee's employment if the head of the agency chooses.
``(d) Whenever the head of the agency removes an employee under the
authority of this section, the head of the agency shall notify Congress
of such termination, and the specific reasons for the action.
``(e) 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.
``(f) 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.
``(g) A removal under this section does not affect the right of the
employee affected to seek or accept employment with any other
department or agency of the United States if that employee is declared
eligible for such employment by the Director of the Office of Personnel
Management.
``(h) The authority of the head of the agency under this section may
not be delegated.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 75 of title 5, United States Code, is amended by adding at the
end the following:
``subchapter vi--investigative leave for senior executive service
employees
``7551. Definitions.
``7552. Actions covered.
``7553. Cause and procedure.
``subchapter vii--removal of senior executive service employees
``7561. Definition.
``7562. Removal of Senior Executive Service employees.''.
SEC. 4. 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,''; and
(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 determines, as prescribed in
regulation by the Office of Personnel Management, that
the employee's conduct with respect to which an action
covered by this subchapter is proposed is flagrant and
that such employee intentionally engaged in such
conduct;''.
SEC. 5. MISAPPROPRIATION OF FUNDS AMENDMENTS.
(a) Reinstatement in the Senior Executive Service.--Section 3593 of
title 5, United States Code, is amended--
(1) in subsection (a)(2), by inserting ``misappropriation of
funds,'' after ``malfeasance,''; and
(2) in subsection (b), by striking ``or malfeasance'' and
inserting ``malfeasance, or misappropriation of funds''.
(b) Placement in Other Personnel Systems.--Section 3594(a) of title
5, United States Code, is amended by striking ``or malfeasance'' and
inserting ``malfeasance, or misappropriation of funds''.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 2579 provides agencies with additional tools to hold
Senior Executive Service (SES) employees accountable for their
actions. The legislation allows an SES employee to be fired for
neglect of duty, misappropriation of funds, or malfeasance, 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 numerous
employees in the SES whose behavior is unacceptable,
irresponsible, and in some instances, illegal. The bill
represents an important step in ensuring senior leaders are
held to a high standard, especially when their conduct is
flagrant.
BACKGROUND AND NEED FOR LEGISLATION
This Committee has uncovered numerous examples of high-
ranking government employees engaging in behavior contrary to
the principles of public service, including those in the Senior
Executive Service (SES) who frivolously spend taxpayer dollars
on lavish and unnecessary conferences; those whose agency
inappropriately targeted conservative groups seeking tax exempt
status; and those whose leadership resulted in discrimination
against veterans and retaliation against whistleblowers.
Even when accused of serious wrongdoing, these individuals
are typically placed on administrative leave with pay.
Senior Executive Service employees serve in key leadership
positions, and must be held accountable for individual and
organizational performance. When SES employees engage in
misconduct, they must be held to a high standard, especially
when their conduct is flagrant.
H.R. 2579 provides additional tools for agencies to use
when their senior executives have engaged in misappropriation
of funds, misconduct, neglect of duty, or malfeasance.
LEGISLATIVE HISTORY
H.R. 2579 was introduced by Rep. Mike Kelly on June 28,
2013. The legislation was marked up by the Committee on July
24, 2013. There were several amendments adopted, which are
described in this report.
A version of this bill was adopted unanimously by this
Committee last Congress. It passed the House by a vote of 402
to 2 on December 19, 2012.
Section-by-Section
Section 1. Short title
The short title of the bill is the ``Government Employee
Accountability Act.''
Section 2. Suspension for 14 days or less for Senior Executive Service
employees
Section 2 grants agencies discretionary authority to
suspend without pay a member of the Senior Executive Service
(SES) for 14 days or less. The provision makes SES employees
subject to short-term suspensions in the same manner as those
they supervise.
Section 3. Investigative leave and termination authority for Senior
Executive Service employees
Section 3 establishes two new subchapters within chapter 75
of title 5. The first subchapter provides agencies authority to
place an SES employee on investigative leave. Investigative
leave is defined as a temporary absence without duty for a
period not to exceed 90 days, for disciplinary reasons.
Under regulations prescribed by the Office of Personnel
Management, the agencies may place an SES employee on
investigative leave, with pay, for misconduct, neglect of duty,
malfeasance, or misappropriation of funds. SES employees whose
misconduct is determined to be serious or flagrant may be
placed on investigative leave without pay.
Following each 45-day period of investigative leave, the
agency must review the investigation into the SES 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 investigative leave, the agency
must: (1) remove the employee; (2) suspend the employee without
pay; or (3) restore the employee to duty. The agency may extend
the period of investigative leave for an additional 90 days.
SES employees retain their existing due process rights
afforded to them under chapter 75, including the right to
appeal to the Merit Systems Protection Board.
The second new subchapter allows for the removal of SES
employees if the head of an agency: (1) determines that the
employee acted in a manner that endangered the interest of the
agency; (2) considers the removal to be in the best interests
of the United States; and (3) determines that existing
procedures prescribed in law cannot be invoked in a manner that
the Secretary considers consistent with the efficiency of
government.
An agency is prohibited from using the expedited
termination procedure to retaliate against an SES employee who
has a pending claim of discrimination or a pending claim of
whistleblower retaliation.
Such an employee shall be given notice of the reasons for
removal. Within 30 days after notice is given, the employee is
entitled to submit to the head of the agency statements or
affidavits to show why the employee should be restored to duty.
The head of the agency shall respond in writing to that
information, and may restore the employee back to duty.
The decision of the head of the agency to remove the
employee is final and may not be appealed or reviewed by an
outside agency.
If the head of an agency removes an employee, he or she
shall notify Congress of that termination.
Termination would not affect the right of the employee to
seek other federal employment if they are otherwise eligible.
Section 4. Suspension of Senior Executive Service employees
Section 4 allows for an SES employee to be terminated or
suspended without pay for more than 14 days for
misappropriation of funds. The SES employee is not entitled to
30 days advance notice of the proposed termination or
suspension without pay if a crime has been committed or if the
employee's conduct is serious or flagrant.
Section 5. Misappropriation of funds amendments
Section 5 makes conforming changes to reinstatement or
placement of SES employees who misappropriate funds.
Explanation of Amendments
The Committee adopted by voice vote an amendment in the
nature of a substitute offered by Mr. Issa.
The Committee adopted by voice vote an amendment offered by
Mr. Cummings and Ms. Norton to prohibit an agency from using
the expedited termination procedure to retaliate against an SES
employee who has a pending claim of discrimination.
The Committee adopted by voice vote an amendment offered by
Mr. Connolly to prohibit an agency from using the expedited
termination procedure to retaliate against an SES employee who
has a pending claim of whistleblower retaliation.
The Committee adopted by voice vote an amendment by Mr.
Lynch that would change the threshold used by an agency head to
discipline an employee using the new authorities in this Act.
The Committee adopted by voice vote an amendment by Ms.
Speier that makes several changes to the standard for immediate
termination, allowing an agency to terminate an SES employee
for serious neglect of duty, misappropriation of funds, or
malfeasance if the agency determines the SES employee acted in
a manner that knowingly endangers the interest of the agency
mission.
The Committee rejected by a vote of 17 ayes to 22 noes an
amendment by Mr. Lynch that would prevent an agency head from
terminating a Senior Executive Service employee without an
administrative waiting period.
Committee Consideration
On July 24, 2013, the Committee met in open session and
ordered reported favorably the bill, H.R. 2579, as amended, by
voice vote, a quorum being present.
Roll Call Votes
One vote occurred during consideration of H.R. 2579--on the
Lynch amendment to the Issa ANS (regarding an agency head
terminating an SES employee without due process). The amendment
was defeated by a vote of 17 ayes to 22 noes.
Voting aye: Cummings, Maloney, Norton, Tierney, Clay,
Lynch, Cooper, Connolly, Speier, Cartwright, Pocan, Duckworth,
Kelly, Davis, Welch, Cardenas, and Lujan Grisham.
Voting no: Issa, Mica, Turner, McHenry, Jordan, Chaffetz,
Walberg, Lankford, Amash, Gosar, Meehan, DesJarlais, Gowdy,
Farenthold, Hastings, Lummis, Woodall, Massie, Collins,
Meadows, Bentivolio, and DeSantis.
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 allows an SES employee to be fired for neglect of
duty, misappropriation of funds, or malfeasance, and gives
agencies discretion to place SES employees on unpaid leave,
while maintaining existing due process rights. 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.
Duplication of Federal Programs
No provision of H.R. 2579 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
H.R. 2579 directs OPM to prescribe regulations related to
SES employees who may be placed on administrative leave with
pay, administrative leave without pay, and investigative leave.
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. 2579 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. 2579. 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. 2579 from the Director of
Congressional Budget Office:
July 30, 2013.
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. 2579, 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. 2579--Government Employee Accountability Act
CBO estimates that implementing H.R. 2579 would not have a
significant impact on federal spending. Enacting the bill could
affect revenues; therefore, pay-as-you-go procedures apply.
However, CBO estimates that any effects would be insignificant
for each year.
H.R. 2579 would allow agencies to place federal employees
who are part of the Senior Executive Service (SES) on unpaid
leave for up to 180 days if they are being investigated for
misappropriation of funds, misconduct, neglect of duty, or
malfeasance; serious violations would lead to immediate
termination. 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 or terminated. Agencies do not track administrative
leave for misconduct separately, so CBO cannot determine how
many times such suspensions have occurred in the past.
According to the Office of Personnel Management and other
federal agencies, such situations are very uncommon. CBO
assumes that even under H.R. 2579, suspensions for misconduct
would continue to be uncommon and therefore only a few SES
employees would be subject to unpaid leave or termination over
the 2014-2023 period.
Implementing this bill would lead to lower discretionary
spending for salaries and expenses for those placed on unpaid
administrative leave or terminated, but CBO estimates that such
reductions would be small because of the small number of
employees likely to be affected. Because some 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 also would not be significant.
H.R. 2579 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 B--EMPLOYMENT AND RETENTION
* * * * * * *
CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE
PAYMENTS, RESTORATION, AND REEMPLOYMENT
* * * * * * *
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
* * * * * * *
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) * * *
(2) the appointee left the Senior Executive Service
for reasons other than misconduct, neglect of duty,
malfeasance, misappropriation of funds, 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,
neglect of duty, [or malfeasance] malfeasance, or
misappropriation of funds 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.
* * * * * * *
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, neglect of duty, [or malfeasance] malfeasance, or
misappropriation of funds, 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.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
SUBCHAPTER I--SUSPENSION OF 14 DAYS OR LESS
Sec.
7501. Definitions.
* * * * * * *
SUBCHAPTER VI--INVESTIGATIVE LEAVE FOR SENIOR EXECUTIVE SERVICE
EMPLOYEES
7551. Definitions.
7552. Actions covered.
7553. Cause and procedure.
SUBCHAPTER VII--REMOVAL OF SENIOR EXECUTIVE SERVICE EMPLOYEES
7561. Definition.
7562. Removal of Senior Executive Service employees.
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 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 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
* * * * * * *
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 determines, as prescribed in
regulation by the Office of Personnel
Management, that the employee's conduct with
respect to which an action covered by this
subchapter is proposed is flagrant and that
such employee intentionally engaged in such
conduct;
* * * * * * *
SUBCHAPTER VI--INVESTIGATIVE 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) ``investigative leave'' means a temporary absence
without duty for disciplinary reasons, of a period not
greater than 90 days.
Sec. 7552. Actions covered
This subchapter applies to investigative leave.
Sec. 7553. Cause and procedure
(a)(1) Under regulations prescribed by the Office of
Personnel Management, an agency may place an employee on
investigative leave, without loss of pay and without charge to
annual or sick leave, only for misconduct, neglect of duty,
malfeasance, or misappropriation of funds.
(2) If an agency determines, as prescribed in regulation by
the Office of Personnel Management, that such employee's
conduct is flagrant and that such employee intentionally
engaged in such conduct, the agency may place such employee on
investigative leave under this subchapter without pay.
(b)(1) At the end of each 45-day period during a period of
investigative leave implemented under this section, the
relevant agency shall review the investigation into the
employee with respect to the misconduct, neglect of duty,
malfeasance, or misappropriation of funds.
(2) Not later than 5 business days after the end of each such
45-day period, the agency 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 investigative leave implemented
under this section, the agency shall--
(A) remove an employee placed on investigative leave
under this section;
(B) suspend such employee without pay; or
(C) reinstate or restore such employee to duty.
(4) The agency may extend the period of investigative leave
with respect to an action under this subchapter for an
additional period not to exceed 90 days.
(c) An employee against whom an action covered by this
subchapter is proposed is entitled to, before being placed on
investigative 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 determines, as prescribed in
regulation by the Office of Personnel
Management, that the employee's conduct with
respect to which an action covered by this
subchapter is proposed is flagrant and that
such employee intentionally engaged in such
conduct;
(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) 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).
(e) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection
Board under section 7701.
(f) 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 VII--REMOVAL OF SENIOR EXECUTIVE SERVICE EMPLOYEES
Sec. 7561. Definition
For purposes of this subchapter, the term ``employee'' has
the meaning given such term in section 7541.
Sec. 7562. Removal of Senior Executive Service employees
(a) Notwithstanding any other provision of law and consistent
with the requirements of subsection (b), the head of an agency
may remove an employee for serious neglect of duty,
misappropriation of funds, or malfeasance if the head of the
agency--
(1) determines that the employee knowingly acted in a
manner that endangers the interest of the agency
mission;
(2) considers the removal to be necessary or
advisable in the interests of the United States; and
(3) determines that the procedures prescribed in
other provisions of law that authorize the removal of
such employee cannot be invoked in a manner that the
head of an agency considers consistent with the
efficiency of the Government.
(b) An employee may not be removed under this section--
(1) on any basis that would be prohibited under--
(A) any provision of law referred to in
section 2302(b)(1); or
(B) paragraphs (8) or (9) of section 2302(b);
or
(2) on any basis, described in paragraph (1), as to
which any administrative or judicial proceeding--
(A) has been commenced by or on behalf of
such employee; and
(B) is pending.
(c) An employee removed under this section shall be notified
of the reasons for such removal. Within 30 days after the
notification, the employee is entitled to submit to the
official designated by the head of the agency statements or
affidavits to show why the employee should be restored to duty.
If such statements and affidavits are submitted, the head of
the agency shall provide a written response, and may restore
the employee's employment if the head of the agency chooses.
(d) Whenever the head of the agency removes an employee under
the authority of this section, the head of the agency shall
notify Congress of such termination, and the specific reasons
for the action.
(e) 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.
(f) 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.
(g) A removal under this section does not affect the right of
the employee affected to seek or accept employment with any
other department or agency of the United States if that
employee is declared eligible for such employment by the
Director of the Office of Personnel Management.
(h) The authority of the head of the agency under this
section may not be delegated.
* * * * * * *
MINORITY VIEWS
Committee Democrats oppose H.R. 2579, the Government
Employee Accountability Act. H.R. 2579, as amended, would give
an agency head broad discretion to place a Senior Executive on
unpaid investigative leave or suspension or to fire the
employee immediately without advance notice. The bill would
provide no opportunity for a proper investigation or for the
employee to address the agency head's concerns before such
action is initiated.
The legislation would eliminate due process protections and
is unnecessary. During Committee consideration, the majority
offered an Amendment in the Nature of a Substitute that revised
the standard under which an agency may remove a Senior
Executive and provided an employee the right to appeal to the
Merit Systems Protection Board. In addition, several Democratic
amendments were accepted that protected employees alleging
whistleblower retaliation and discrimination claims and raised
the standard for immediate removal, leave, and suspension.
However, the majority did not accept an amendment offered by
Representative Lynch that would have applied existing due
process protections to the expedited removal provisions in the
bill.
H.R. 2579 would strip existing due process protections that
were put in place to protect civil servants from partisan,
political influence. It would shift the burden onto the
employee to prove his or her innocence and to seek
reinstatement. This is contrary to the core legal principle of
the American justice system--the presumption that one is
innocent until proven guilty.
Under section 7543 of title 5 of the U.S. Code, agencies
already may take action against Senior Executives for
misconduct, neglect of duty, malfeasance, or failure to accept
a reassignment or a transfer of function. However, current law
requires agencies to give Senior Executive employees 30 days'
advance notice before disciplinary action is commenced, unless
there is reasonable cause to believe that the employee has
committed a crime. Abuses committed by government employees
certainly need to be addressed, but it should not be done by
denying employees due process rights.
Elijah E. Cummings,
Ranking Member.