Cobert clears first step in path toward Senate confirmation

Office of Personnel Management Acting Director Beth Cobert cleared the first hurdle Wednesday in her nomination to be the agency’s permanent director.

The Senate Homeland Security and Governmental Affairs Committee voted 15-0 to move the nomination forward, which the full Senate will now consider.

But the committee’s chairman, Sen. Ron Johnson (R-Wis.), sees some problems — despite his vote approving Cobert’s nomination.

Johnson said he’s concerned by OPM’s response to two separate requests for information.

“Both Congressman Chaffetz’s [and] Senator Vitter’s request for this information, I believe is a legitimate oversight need, and Ms. Cobert is going to have to cooperate with that if this nomination is going to move forward,” Johnson said during the committee’s Feb. 10 business meeting. “I hope she does. Because of that commitment, I’m willing to move this nomination forward in this committee.”

Cobert agreed to work with the Senate and other congressional committees “to accommodate their oversight needs,” Johnson said in reading her response to the committee’s questions for the record.

House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) issued a subpoena for more documents related to the OPM cyber breaches. The committee has asked for documents on the agency’s cybersecurity efforts five separate times since July.

Johnson said Chaffetz’s response was particularly troubling, calling the subpoena a “last resort” during Cobert’s Feb. 4 nomination hearing.

And Sen. David Vitter (R-La.) threatened to stall Cobert’s nomination over a special exemption given to members of Congress and their staff in an OPM rule amending the Affordable Care Act. He said he hasn’t received the documents he asked for more than two years ago.

Though Vitter is not a member of the Senate committee, his questions were included on the record for Cobert’s nomination hearing.

A Vitter spokesman said his office has not gotten a response from OPM or Cobert, other than her answers to Vitter’s questions for the record.

Vitter is questioning a final rule OPM issued in October 2013, well before Cobert assumed her role as the agency’s acting director last July.

The rule amends a section of the Affordable Care Act and lets members of Congress and their staff buy health insurance on the Small Business Health Options Plan (SHOP) exchange.

According to Vitter, OPM used the claim that the House of Representatives and Senate employed 45 people, meaning both could qualify for small business coverage under the ACA.

But Congress has at least 16,000 employees.

Vitter said Congress is simultaneously claiming itself as a small business to the D.C. Health Link — and a large employer to the IRS.

Congressional employees are now beginning to receive their 1095-C forms  for this tax filing season. The form verifies for the IRS that an employer is offering insurance to their employees.

The spokesman said those 1095 forms contain this phrase: “You are receiving this Form 1095-C because your employer is an Applicable Large Employer, subject to the employer shared responsibility provision in the Affordable Care Act.”

Vitter’s office is asking that the IRS clarify Congress’ status as either a small or large employer in a letter to Commissioner John Koskinen.

Though members encouraged her to be more communicative with Congress, the committee had mostly praise for Cobert.

“I’m delighted that we’re going to move her nomination forward,” Committee Ranking Member Tom Carper (D-Del.) said before Wednesday’s vote. “I hope everyone supports it. We’re lucky she’s willing to take on this job.”

Duplication, administrative leave bills

The committee also passed the Duplication Elimination Act, which defines a process for the President and agencies to better address annual recommendations from the Government Accountability Office.

The bill requires the President to specifically indicate which GAO recommendations agencies should adopt. Congress would then debate the recommendations and help agencies set a faster path toward implementing them.

“Hopefully, every time this report is issued … we actually take up these recommendations and either adopt them or not adopt them or improve them,” said Sen. Kelly Ayotte (R-N.H.), one of the bill’s sponsors.

Typically, agencies adopt 27 percent of GAO recommendations a year, Ayotte said.

A slew of other bills also cleared the committee:

• Combat Terrorist Use of Social Media Act of 2016
• Secret Service Improvements Act of 2015
• Federal Property Management Reform Act of 2016
• An amendment to the Homeland Security Act of 2002 to build partnerships to stop extremist violence
• Construction Consensus Procurement Improvement Act of 2015
• Presidential Allowance Modernization Act of 2015
• Enhancing whistleblower protections for contractor and grantee employees
• Administrative Leave Act of 2016
• Countering Online Recruitment of Violent Extremists Act of 2015
• Making Electronic Government Accountable By Yielding Tangible Efficiencies Act of 2015
• Department of Homeland Security Insider Threat and Mitigation Act of 2016

Perhaps most notably, the Administrative Leave Act would create new categories of administrative leave for employees accused of misconduct or poor performance.

The Homeland Security Insider Threat and Mitigation Act, which first originated in the House, would require DHS to develop a strategy for an insider threat program.

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