[House Report 114-520]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-520
======================================================================
ADMINISTRATIVE LEAVE REFORM ACT
_______
April 25, 2016.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 4359]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 4359) to amend title 5, United
States Code, to provide that Federal employees may not be
placed on administrative leave for more than 14 days during any
year for misconduct or poor performance, 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............................................... 5
Explanation of Amendments........................................ 6
Committee Consideration.......................................... 6
Roll Call Votes.................................................. 6
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.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Federal Advisory Committee Act................................... 7
Unfunded Mandate Statement....................................... 7
Earmark Identification........................................... 7
Committee Estimate............................................... 7
Budget Authority and Congressional Budget Office Cost Estimate... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
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 ``Administrative Leave Reform Act''.
SEC. 2. LIMITATION ON ADMINISTRATIVE LEAVE.
(a) In General.--Subchapter II of chapter 63 of title 5, United
States Code, is amended by adding at the end the following:
``Sec. 6330. Limitation on administrative leave
``(a) In General.--During any calendar year, an employee may not be
placed on administrative leave, or any other paid non-duty status
without charge to leave, for more than 14 total days for reasons
relating to misconduct or performance. After an employee has been
placed on administrative leave for 14 days, the employing agency shall
return the employee to duty status, utilizing telework if available,
and assign the employee to duties if such employee is not a threat to
safety, the agency mission, or Government property.
``(b) Extended Administrative Leave.--
``(1) In general.--If an agency head determines that an
employee is a threat to safety, the agency mission, or
Government property and upon the expiration of the 14-day
period described in subsection (a), an agency head may place
the employee on extended administrative leave for additional
periods of not more than 30 days each.
``(2) Report.--For any additional period of 30 days granted
to the employee after the initial 30-day extension, the agency
head shall submit to the Committee on Oversight and Government
Reform in the House of Representatives, the agency's
authorizing committees of jurisdiction of the House of
Representatives and the Senate, and the Committee on Homeland
Security and Governmental Affairs of the Senate a report, not
later than 5 business days after granting the additional
period, containing--
``(A) the name, title, position, office or agency
subcomponent, job series, pay grade, and salary of the
employee on administrative leave;
``(B) a description of the work duties of the
employee;
``(C) the reason the employee is on administrative
leave;
``(D) an explanation as to why the employee is a
threat to safety, the agency mission, or Government
property;
``(E) an explanation as to why the employee is not
able to telework or be reassigned to another position
within the agency;
``(F) in the case of a pending related investigation
of the employee--
``(i) the status of such investigation; and
``(ii) the certification described in
subsection (c)(1); and
``(G) in the case of a completed related
investigation of the employee--
``(i) the results of such investigation; and
``(ii) the reason that the employee remains
on administrative leave.
``(c) Extension Pending Related Investigation.--
``(1) In general.--If an employee is under a related
investigation by an investigative entity at the time an
additional period described under subsection (b)(2) is granted
and, in the opinion of the investigative entity, additional
time is needed to complete the investigation, such entity shall
certify to the applicable agency that such additional time is
needed and include in the certification an estimate of the
length of such additional time.
``(2) Limitation.--The head of an agency may not grant an
additional period of administrative leave described under
subsection (b)(2) to an employee on or after the date that is
30 days after the completion of a related investigation by an
investigative entity.
``(d) Definitions.--In this section, the following definitions apply:
``(1) Investigative entity.--The term `investigative entity'
means an internal investigative unit of the agency granting
administrative leave, the Office of Inspector General, the
Office of the Attorney General, or the Office of Special
Counsel.
``(2) Related investigation.--The term `related
investigation' means an investigation that pertains to the
underlying reasons an employee was placed on administrative
leave.''.
(b) Effective Date.--The amendment made by subsection (a) shall begin
to apply 90 days after the date of enactment of this Act.
(c) Rules of Construction.--Nothing in the amendment made by
subsection (a) shall be construed to--
(1) supersede the provisions of chapter 75 of title 5, United
States Code; or
(2) limit the number of days that an employee may be placed
on administrative leave, or any other paid non-duty status
without charge to leave, for reasons unrelated to misconduct or
performance.
(d) Clerical Amendment.--The table of sections for subchapter II of
chapter 63 of title 5, United States Code, is amended by adding after
the item relating to section 6329 the following new item:
``6330. Limitation on administrative leave.''.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 4359, the Administrative Leave Reform Act brings
accountability to the administrative leave process within
Executive branch agencies. Currently, there is little
uniformity across the federal government in how administrative
leave is used. This legislation creates a standard process for
the use of administrative leave in cases of misconduct and poor
performance, which will help curb the overuse of administrative
leave within the federal government.
In general, the legislation creates a 14-day cap on
administrative leave when employees are being placed on
administrative leave for reasons related to misconduct or poor
performance, except under certain circumstances.
In these exceptional circumstances, the legislation permits
agencies to make 30-day extensions of administrative leave
beyond the 14-day limit. For each extension that an agency
makes beyond the initial 30-day extension, the agency must
provide a report to the appropriate congressional committees
containing details about the individual, including name, title,
position, salary, and duties, an explanation for why the
individual is on administrative leave, why the individual could
not telework or be reassigned, and the status of any pending
investigation. Further, the entity conducting the investigation
must certify within the report that the investigation is
ongoing and requires additional time. Additionally, no
individual will be eligible for additional extensions of
administrative leave more than 30 days after the completion of
the last investigation into the individual.
BACKGROUND AND NEED FOR LEGISLATION
The Office of Personnel Management (OPM) defines
administrative leave, or an excused absence, as ``an
administratively authorized absence from duty without loss of
pay or charge to leave.''\1\ OPM further notes that
``[a]lthough administrative leave is not expressly referenced
in title 5, the authority to grant an excused absence derives
from the inherent authority for heads of agencies to prescribe
regulations for the government of their organizations.''\2\
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\1\Office of Personnel Mgmt., Pay & Leave, available at https://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/administrative-leave/ (last visited March 9, 2016).
\2\Id. OPM references 5 U.S.C. 301-302 in particular.
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While OPM offers some guidance and examples for the use of
administrative leave, there is no defining statute or
regulation clearly delineating the proper use of administrative
leave. This has resulted in varying policies across agencies.
The Government Accountability Office (GAO) highlighted the
inconsistent use of administrative leave across the federal
government in a 2014 report. GAO found, ``agency policies and
guidance contained several common activities for granting paid
administrative leave . . . However, variations exist, depending
on agency mission and how leave is categorized in agency
policy.''\3\
---------------------------------------------------------------------------
\3\Gov't Accountability Office, Federal Paid Administrative Leave
(October 2014) (GAO-15-79).
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OPM's recent guidance makes clear that administrative leave
is not intended to be a permanent solution in cases of
performance and misconduct issues. Rather, administrative leave
should be a temporary measure for agencies to utilize in
limited, brief circumstances. When administrative leave is used
in relation to poor performance or misconduct prior to an
adverse action, OPM advises that: ``[w]here absences are for
longer than brief periods, administrative leave is generally
inappropriate.''\4\ OPM's guidance also notes that when placing
employees on administrative leave for misconduct or performance
issues prior to taking adverse action, ``[a]n agency should
monitor the situation and move towards longer-term actions when
it is possible, appropriate, and prudent to do so.''\5\
---------------------------------------------------------------------------
\4\Office of Personnel Mgmt., Pay & Leave, available at https://
www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-
sheets/administrative-leave/ (last visited March 9, 2016).
\5\Id.
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Despite these intentions, GAO found that some agencies have
placed employees on administrative leave for more than a year.
In its 2014 report, GAO found that 263 employees within the
federal government were on administrative leave between one and
three years during the 2011-2013 period. The report also
indicates that 538 people were on administrative leave for nine
months or more. GAO's report provides further details of agency
use of administrative leave.\6\ GAO also found that the most
common reason that agencies used large amounts of
administrative leave was for personnel matters, such as
investigations of alleged misconduct or criminal actions.
---------------------------------------------------------------------------
\6\Gov't Accountability Office, Federal Paid Administrative Leave
(October 2014) (GAO-15-79).
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The Committee on Oversight and Government Reform has
investigated instances where agencies have placed employees on
administrative leave for extended periods of time. For example,
the Environmental Protection Agency placed two employees on
administrative leave for 1.5 years and 10 months, respectively,
pending the completion of Inspector General and Department of
Justice investigations, which found that the ``employees spent
approximately 1 to 6 hours a day viewing and downloading
pornography.''\7\
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\7\Environmental Protection Agency Office of the Inspector General,
FYI 2015 EPA Management Challenges (May 28, 2014) (15-N-0164).
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In addition, the National Archives Inspector General was
placed on administrative leave for over two years while
allegations that he made sexually suggestive and racially
offensive comments and altered audits were being
investigated.\8\
---------------------------------------------------------------------------
\8\Lisa Rein, Embattled National Archives IG to Retire after Probe
Finds Misconduct, WASH. POST, Aug. 4, 2014, https://
www.washingtonpost.com/news/federal-eye/wp/2014/08/04/embattled-
national-archives-ig-to-retire-after-probe-finds-misconduct/.
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While administrative leave offers agencies flexibility to
address instances where there is a need for a short-term
absence or to wait for the completion of an investigation by
the Inspector General, it was never meant to be used as an
option when agencies do not know how or are reluctant to take
adverse action against employees.
When agencies overuse administrative leave, it costs the
American taxpayers. While in many cases, some use of
administrative leave is necessary and appropriate, some
agencies use administrative leave to avoid dealing with hard
problems, or to allow a problem to be swept under the rug. By
allowing employees to remain on administrative leave
indefinitely, agencies are effectively asking taxpayers to pay
people not to work. The Committee believes that this is
unacceptable.
To address this problem, H.R. 4359 works to curb agency
overuse of administrative leave. Specifically, the bill creates
a clear statutory intent that administrative leave should not
be a permanent duty status. Second, it requires agencies to
almost immediately begin considering how to handle individuals
placed on administrative leave. Third, it increases
accountability within agencies by requiring agency heads to
approve extensions of its use beyond 14 days, and after 44
days, to certify to Congress the specific reason that an
employee must remain on administrative leave. Fourth, it will
prohibit the indefinite use of administrative leave. Under this
bill, agencies can move forward with an indefinite number of
extensions to allow for the completion of investigations into
possible misconduct or performance problems. However, once
those investigations are completed, agencies must take action
to remove the employee from administrative leave in short
order.
Prior to House consideration, the Committee plans to make
further refinements to the legislation based on comments
received from the Council of the Inspectors General on
Integrity and Efficiency.
LEGISLATIVE HISTORY
H.R. 4359, the Administrative Leave Reform Act, was
introduced by Congressman Jason Chaffetz (R-UT) on January 11,
2016, and referred to the Committee on Oversight and Government
Reform.
On March 1, 2016, the Committee on Oversight and Government
Reform ordered H.R. 4359 favorably reported, with an amendment
offered by Congressman Stephen Lynch (D-MA), by voice vote.
Section-by-Section
Section 1. Short title
Designates the short title of the legislation as the
``Administrative Leave Reform Act.''
Section 2. Limitation on administrative leave
Amends title 5 of United States Code to require that an
employee may not be placed on administrative leave, or other
paid non-duty status without charging leave, for more than 14
total days for reasons relating to misconduct or performance.
Provides the employing agency with the ability to extend an
employee's time on administrative leave for misconduct or poor
performance in increments of 30 days.
For each 30-day extension after the first 30-day extension,
the agency must provide: a report to Congress that explains the
reasons this employee remains on administrative leave; the
reasons the employee cannot telework or be reassigned to
another position; the status of any investigation regarding the
employee with an estimate of the time needed to complete the
investigation; and a description of the employee's employment
information and work responsibilities.
If the agency grants an extension of administrative leave
(beyond an original 30-day extension) to accommodate the need
for additional time to complete an investigation, then the
investigating entity must certify that additional time is
needed to complete the investigation.
The agency head may not grant an additional period of
administrative leave to an employee on or after the date that
is 30 days after a completed investigation.
Establishes that the bill will take effect 90 days after
the date of enactment.
This bill shall not be construed to supersede the
provisions of chapter 75 of title 5, United States Code, or
limit the number of days an employee may be placed on
administrative leave, or other paid non-duty status without
charge to leave, for reasons unrelated to misconduct or
performance.
Explanation of Amendments
During Full Committee consideration of the bill,
Congressman Stephen Lynch (D-MA) offered an amendment in the
nature of a substitute to the bill, which is reflected in the
above section-by-section. The Lynch amendment was adopted by
voice vote.
Committee Consideration
On March 1, 2016, the Committee met in open session and
ordered reported favorably the bill, H.R. 4359, as amended, by
voice vote, a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 4359.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends title 5, United States Code, to provide that
Federal employees may not be placed on administrative leave for
more than 14 days during any year for misconduct or poor
performance. As such, it does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of the bill is to amend title 5, United
States Code, to provide that Federal employees may not be
placed on administrative leave for more than 14 days during any
year for misconduct or poor performance.
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. However, the Director of the Office of
Management and Budget is directed to issue guidelines.
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
Mandates 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:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 24, 2016.
Hon. Jason Chaffetz,
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. 4359, the
Administrative Leave Reform Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dan Ready.
Sincerely,
Keith Hall.
Enclosure.
H.R. 4359--Administrative Leave Reform Act
H.R. 4359 would limit to 14 days the amount of time an
agency could place an employee on administrative leave while
investigating employee misconduct or performance. Extensions to
the 14-day period would be allowable under H.R. 4359, but
agencies granting such extensions would have to submit a report
to certain Congressional committees detailing their rationale.
The limitation on the length of administrative leave would
not change the amount agencies pay to employees under
investigation and CBO does not expect the number of reports to
Congressional committees or their costs to be significant.
Therefore, CBO estimates that enacting H.R. 4359 would have no
significant budgetary effect.
Because enacting H.R. 4359 would not affect direct spending
or revenues, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 4359 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year period beginning in 2027.
H.R. 4359 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 Theresa Gullo, Assistant Director for
Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART E--ATTENDANCE AND LEAVE
* * * * * * *
CHAPTER 63--LEAVE
SUBCHAPTER I--ANNUAL AND SICK LEAVE
Sec.
6301. Definitions.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
6330. Limitation on administrative leave.
* * * * * * *
SUBCHAPTER II--OTHER PAID LEAVE
* * * * * * *
Sec. 6330. Limitation on administrative leave
(a) In General.--During any calendar year, an employee may
not be placed on administrative leave, or any other paid non-
duty status without charge to leave, for more than 14 total
days for reasons relating to misconduct or performance. After
an employee has been placed on administrative leave for 14
days, the employing agency shall return the employee to duty
status, utilizing telework if available, and assign the
employee to duties if such employee is not a threat to safety,
the agency mission, or Government property.
(b) Extended Administrative Leave.--
(1) In general.--If an agency head determines that an
employee is a threat to safety, the agency mission, or
Government property and upon the expiration of the 14-
day period described in subsection (a), an agency head
may place the employee on extended administrative leave
for additional periods of not more than 30 days each.
(2) Report.--For any additional period of 30 days
granted to the employee after the initial 30-day
extension, the agency head shall submit to the
Committee on Oversight and Government Reform in the
House of Representatives, the agency's authorizing
committees of jurisdiction of the House of
Representatives and the Senate, and the Committee on
Homeland Security and Governmental Affairs of the
Senate a report, not later than 5 business days after
granting the additional period, containing--
(A) the name, title, position, office or
agency subcomponent, job series, pay grade, and
salary of the employee on administrative leave;
(B) a description of the work duties of the
employee;
(C) the reason the employee is on
administrative leave;
(D) an explanation as to why the employee is
a threat to safety, the agency mission, or
Government property;
(E) an explanation as to why the employee is
not able to telework or be reassigned to
another position within the agency;
(F) in the case of a pending related
investigation of the employee--
(i) the status of such investigation;
and
(ii) the certification described in
subsection (c)(1); and
(G) in the case of a completed related
investigation of the employee--
(i) the results of such
investigation; and
(ii) the reason that the employee
remains on administrative leave.
(c) Extension Pending Related Investigation.--
(1) In general.--If an employee is under a related
investigation by an investigative entity at the time an
additional period described under subsection (b)(2) is
granted and, in the opinion of the investigative
entity, additional time is needed to complete the
investigation, such entity shall certify to the
applicable agency that such additional time is needed
and include in the certification an estimate of the
length of such additional time.
(2) Limitation.--The head of an agency may not grant
an additional period of administrative leave described
under subsection (b)(2) to an employee on or after the
date that is 30 days after the completion of a related
investigation by an investigative entity.
(d) Definitions.--In this section, the following definitions
apply:
(1) Investigative entity.--The term ``investigative
entity'' means an internal investigative unit of the
agency granting administrative leave, the Office of
Inspector General, the Office of the Attorney General,
or the Office of Special Counsel.
(2) Related investigation.--The term ``related
investigation'' means an investigation that pertains to
the underlying reasons an employee was placed on
administrative leave.
* * * * * * *
[all]