New bills to target SES accountability, paid leave

The House Oversight and Government Reform Committee will introduce a series of bills that target performance standards, administrative leave and other removal practices within the Senior Executive Service.

Members will take up three separate bills at a Jan. 12 business meeting, according to a committee memo that Federal News Radio obtained.

The Senior Executive Service Accountability Act, which Rep. Tim Walberg (R-Mich.) will likely introduce, would extend the probationary period for career employees from one to two years.

Walberg’s bill would also change pay retention for career appointees who are fired for poor performance, meaning those employees would get paid under the basic pay rates they received before entering the SES.

Additionally, the bill would:

• Suspend career appointees accused of misconduct for 14 days or less.
• Give agency leaders the authority to put employees subject to removal on mandatory leave.
• Sets procedures to fire poor-performing senior executives and appointees accused of misconduct faster.
• Sets mandatory reassignments for career appointees.

Specifically, the legislation lets agency leaders entirely remove an employee for bad performance or misconduct or transfer the employee out of the SES to a General Schedule position, with five days notice from the agency.

“An employee so transferred may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an employee so transferred does not report for duty, such employee shall not receive pay or other benefits.”

Agency leaders must send a report to Congress within 30 days specifying what happened and why the employee was fired or transferred.

The Merit Systems Protection Board would have 21 days to decide on an employee’s appeal case.

“In any case in which the administrative judge cannot issue a decision in accordance with the 21-day requirement … the removal or transfer is final,” the bill said.

In that case, MSPB would send a report to Congress explaining why it couldn’t make a decision within the 21-day time frame.

Between furlough appeals and several high-profile filings of SES members at the Veterans Affairs Department, MSPB judges handled a record-breaking number of cases in 2014.

While an employee waits for a decision from MSPB, the employee cannot receive “any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments or benefits,” the bill said.

Finally, the bill requires that SES employees move to other positions within their agencies at least once every five years, starting on the date that the employees joins the career service.

“Each career appointee at an agency shall be reassigned to another Senior Executive Service position at the agency at a different geographic location that does not include the supervision of the same agency personnel or programs,” the bill said.

Agency leaders can waive the requirement but must submit an explanation to the House Oversight and Government Reform Committee and Senate Homeland Security and Governmental Affairs Committee.

The committee will also consider an amendment to title 5 of the U.S. Code that would officially change those probationary periods for members of the competitive service and SES.

“This bill requires a two-year probationary period before an appointment in the competitive civil service or an initial appointment as a supervisor or manager becomes final,” the memo said. “For positions that require formal training or a license, the two-year probationary period begins on the date such formal training is completed or the date such license is granted.”

Committee Chairman Jason Chaffetz (R-Utah) will likely introduce the Official Personnel File Enhancement Act. This bill would require agency leaders to include any findings of a government investigation in an employee’s personnel file.

This rule specifically applies to employees accused of misconduct or bad performance who leave government before the agency can finish the investigation, a trend that has become more common in recent years.

Susan Taylor, a former Veterans Affairs Department executive at the center of the reverse auction procurement scandal, retired in October 2014, three weeks after a VA inspector general investigation found that she had allegedly committed procurement fraud.

Agencies have 14 days after the investigation ends to include those findings in an employee’s personnel file, the bill said.

The committee will also take up the Administrative Leave Reform Act, another of Chaffetz’s bills, which would put a 14-day limit on the time that a federal employee accused of misconduct or poor performance can spend on administrative leave.

A request for comment from Chaffetz’s office was not immediately returned.

This isn’t the first time that Congress, specifically the House Oversight and Government Reform Committee, has taken aim at the SES.

Walberg and Rep. Darrell Issa (R-Calif.) introduced the Senior Executive Service Accountability Act in 2014 with similar provisions.

At the time, the bill’s opponents argued that the provision that would have cut employees’ advance notice of their punishments from 30 to 15 days wouldn’t give them enough time to prepare a defense.

A series of bills targeting accountability issues at the VA has circulated Congress for the past few years, but few have made it far.

The House passed the VA Accountability Act of 2016 in July, which would give the VA the power to remove or demote a department employee based on misconduct or their performance. A similar effort was started in the Senate but was referred to committee.

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