The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT” mentioning the U.S. Dept. of Justice was published in the House of Representatives section on pages H7591-H7594 on Sept. 16, 2014.
The publication is reproduced in full below:
SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT
Mr. MEADOWS. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5169) to amend title 5, United States Code, to enhance accountability within the Senior Executive Service, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5169
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Senior Executive Service Accountability Act''.
SEC. 2. BIENNIAL JUSTIFICATION OF POSITIONS.
Section 3133(a)(2) of title 5, United States Code, is amended by inserting after ``positions'' the following: ``, with a justification for each position (by title and organizational location) and the specific result expected from each position, including the impact of such result on the agency mission,''.
SEC. 3. EXTENSION OF PROBATIONARY PERIOD.
(a) In General.--Section 3393(d) of title 5, United States Code, is amended by striking ``1-year'' and inserting ``2-year''.
(b) Conforming Amendment.--Section 3592(a)(1) of such title is amended by striking ``1-year'' and inserting ``2-year''.
SEC. 4. MODIFICATION OF PAY RETENTION FOR SENIOR EXECUTIVE
SERVICE MEMBERS REMOVED FOR UNDER PERFORMANCE.
Section 3594(c)(1)(B) of title 5, United States Code, is amended to read as follows:
``(B)(i) any career appointee placed under subsection (a) or (b)(2) of this section shall be entitled to receive basic pay at the highest of--
``(I) the rate of basic pay in effect for the position in which placed;
``(II) the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service immediately before being appointed to the Senior Executive Service; or
``(III) the rate of basic pay in effect for the career appointee immediately before being placed under subsection
(a) or (b) of this section; and
``(ii) any career appointee placed under subsection (b)(1) of this section shall be entitled to receive basic pay at the rate of basic pay in effect for the position in which placed; and''.
SEC. 5. REQUIREMENT THAT PERFORMANCE REQUIREMENTS BE
ESTABLISHED IN ADVANCE.
Section 4312(b)(1) of title 5, United States Code, is amended--
(1) by striking ``on or'' and inserting ``not later than 30 calendar days''; and
(2) by inserting ``in writing'' after ``communicated''.
SEC. 6. AMENDMENTS TO ADVERSE ACTION PROVISIONS WITH RESPECT
TO CAREER APPOINTEES IN THE SENIOR EXECUTIVE
SERVICE.
(a) Suspension for 14 Days or Less for Senior Executive Service Employee.--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 period 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''.
(b) Modification of Cause and Procedure for Suspension and Termination.--
(1) In general.--Section 7543 of title 5, United States Code, is amended--
(A) in subsection (a), by striking ``misconduct,'' and inserting ``such cause as would promote the efficiency of the service, misconduct,'';
(B) in subsection (b)(4), by adding at the end before the period the following: ``, but no later than 30 days after the date that the employee's answer was received under paragraph
(2)'';
(C) by redesignating subsections (c), (d), and (e) as subsections (d), (e), and (f), respectively;
(D) by inserting after subsection (b) the following:
``(c) An agency head may extend the deadline for an employee to answer under subsection (b)(2) or the deadline for the agency to issue a written decision under subsection
(b)(4) for no more than 30 days each. Any extension by the agency head under this subsection must be in writing and document the reasons for granting the extension.''; and
(E) by adding at the end the following:
``(g)(1) With respect to an employee subject to removal under this subchapter, if a final order or decision is issued in favor of the agency by the agency, the Merit Systems Protection Board, or the applicable reviewing court under section 7703, the employee--
``(A) shall pay to the agency an amount equal to any pay received by the employee during the period beginning on the date that the employee received notice under subsection
(b)(1) and ending on the date of such final order or decision; and
``(B) have removed from such employee's credit any annual leave accrued during such period.
``(2) Paragraph (1) shall apply only to an employee who, during the period described in paragraph (1)(A), is placed on administrative leave or any other type of leave whereby the employee is in a status without duties but with pay.''.
(2) Conforming amendments.--Subchapter V of chapter 35 of title 5, United States Code, is amended--
(A) in section 3593--
(i) in subsection (a)(2), by striking ``misconduct,'' and inserting ``such cause as would promote the efficiency of the service, misconduct,''; and
(ii) in subsection (b), by striking ``misconduct,'' and inserting ``such cause as would promote the efficiency of the service, misconduct,''; and
(B) in section 3594(a), by striking ``misconduct,'' and inserting ``such cause as would promote the efficiency of the service, misconduct,''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from North Carolina (Mr. Meadows) and the gentleman from Maryland (Mr. Cummings) each will control 20 minutes.
The Chair recognizes the gentleman from North Carolina.
General Leave
Mr. MEADOWS. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from North Carolina?
There was no objection.
Mr. MEADOWS. Mr. Speaker, I yield myself such time as I may consume.
Congress looks to the Senior Executive Service, or ``SES'' as we refer to it, to provide leadership so that the government may successfully deliver services to the American people.
A 1978 law creating the SES intended it to be an elite corps of leaders serving just below the high-level Presidential appointees. The roughly 8,000 SES members are spread across government agencies and are intended to be that link between the political appointees and agencies' career workforce.
In a budget-constrained environment, senior executives must be good stewards of the taxpayer dollars so citizens receive the best value for their money. Unfortunately, the Oversight Committee's investigations have, time and time again, identified SES members embroiled in agency scandals. This has created a need to restore the public confidence by increasing accountability and performance within the government's executive corps.
In February of 2012, the committee began investigating allegations that the Internal Revenue Service inappropriately scrutinized certain applicants who were seeking tax-exempt status. Documents and information showed that SES member Lois Lerner, the Director of the IRS' exempt organization unit, was extensively involved in the targeting of conservative groups' tax-exempt organizations while working to maintain a veneer of objective enforcement.
In April of 2012, the committee began investigating SES member Jeff Neely for the excessive, wasteful and, in some cases, impermissible waste of taxpayer dollars associated with the GSA conferences, at a luxury resort in Las Vegas.
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Mr. Neely directed those planning the conference to make it over the top; thus it came as no surprise when photos surfaced of Mr. Neely relaxing in a Las Vegas hot tub on the taxpayers' dime.
Senior Executive Servicemembers also chose to conceal problems within the VA health care system. With more than 20 veterans' deaths linked to substandard care, the work of the VA inspector general and the Veterans' Affairs Committee, under Chairman Miller, paints a very disturbing picture.
In response to all of this, H.R. 5169 gives agencies the tools to better manage their senior executives. The bill eliminates a provision in the current law that allows an executive removed for performance and placed in a new Federal job to retain their executive salary. I might add that that averages $161,000.
The bill makes senior executives subject to suspensions without pay for less than 2 weeks instead of a simple reprimand or admonishment in the same manner as frontline employees would receive. The bill makes senior executives accountable for conduct contrary to the efficiency of the Federal service.
The bill extends the probationary period for senior executives from 1 year to 2 years, and, if used properly, that probationary period gives agencies an effective tool to ensure that executives are productive. If executives are not performing in an acceptable level, they will be terminated.
The bill ensures that senior executives receive their performance plans--the foundation of accountability for poor and high performance--
at least 30 days in writing before the appraisal cycle begins.
Mr. Speaker, following the committee's consideration, we have worked on a bipartisan basis to address the concerns of the minority.
First, the bill before the House today reflects the adoption of the amendment offered and withdrawn at the markup of the bill by the Delegate from the District of Columbia and maintains a requirement for agencies to provide 30 days' advanced notice to senior executives facing termination.
Second, the bill requires agencies to make a decision on termination and other disciplinary actions within 30 days of receiving the employee's response to that proposed action.
Finally, the bill ensures that senior executives fired for misconduct return any salary and leave accrued while on nonduty status. This means that the executive retains his or her avenues to appeal but, in the end, if terminated, is required to make the taxpayer whole.
Combined, these changes bring needed accountability to the Federal Government's executive leadership core.
I urge the Members of the House to support this measure, joining me in providing agencies additional tools to address instances where senior government officials are engaging in behavior contrary to the principles of public service.
I reserve the balance of my time, Mr. Speaker.
Mr. CUMMINGS. I yield myself such time as I may consume.
Mr. Speaker, I want to thank Oversight Committee Chairman Issa and the sponsor of H.R. 5169, the gentleman from Michigan, Tim Walberg, for working with my Democratic colleagues Representatives Lynch and Norton to address some of our concerns.
Although much progress has been made in improving this legislation, I believe that there remains sufficient constitutional issues to cause concern, and, therefore, I must reluctantly oppose H.R. 5169, the Senior Executive Service Accountability Act.
I understand that this legislation was meant to address recent allegations of misconduct and management failures by senior executives at various agencies. While the allegations are quite troubling, I don't believe they justify governmentwide changes to the Senior Executive Service that will bring senior executives much closer to becoming ``at-
will'' employees.
I am concerned that the provisions in this bill that would extend the probationary period for senior executives from 1 to 2 years and authorize suspensions for less than 14 days would give agency heads and political appointees the opportunity to terminate or suspend career senior executives for politically motivated reasons, and it is a very real possibility that this would go unchecked simply because there is no third-party review of an agency's actions under these circumstances.
I fear that this could result in the politicization of the Federal Government's career senior executive core which would undermine the very protections against political patronage and corruption instituted under the Pendleton Civil Service Reform Act of 1883.
I am also deeply troubled by the clawback provision in this legislation which would require an SES member who has been removed from Federal service to pay back the salary and accrued leave he or she received during the period pending removal.
I think it is highly likely that the courts and the Merit Systems Protection Board would construe this clawback provision in the same way they construe involuntary or enforced leave.
The Federal Circuit Court of Appeals and the MSPB have held that the imposition of involuntary or enforced leave constitutes a constructive suspension, requiring an agency to provide procedural due process to the employee before placing him or her on such leave status. These procedural rights must include notice, an opportunity to respond, an agency decision, and appeal rights.
Although this clawback requirement is limited to those senior executives who were placed on some form of leave with pay but without duties, they would never have been given the chance to challenge the agency's decision; moreover, the practical and real effect of the clawback provision is that the senior executive is removed from Federal service upon notice of removal which is, in essence, ``at-will'' employment.
For these reasons, I urge my colleagues to join me in opposing H.R. 5169; and, with that, I reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I yield as much time as he may consume to the gentleman from the State of Michigan (Mr. Walberg), my distinguished colleague who is the author of this piece of legislation.
Mr. WALBERG. I thank the gentleman from North Carolina for yielding to me and also thank him for his comments on this legislation. He laid it out extremely well.
Mr. Speaker, Congress expects the Senior Executive Service to provide leadership so the Federal Government may successfully fulfill their obligations to the American people. That is what it is all about. We serve at their will and for their purpose and so does the Senior Executive Service.
We also look to senior leaders to be good stewards of taxpayer dollars so citizens can have confidence that their hard-earned tax dollars are being utilized sensibly.
Unfortunately and especially in light of the numerous scandals at the IRS and Veterans Administration perpetuated by senior executive branch officials who let things happen and get out of control, we need to take legislative action to restore public confidence and increase accountability and performance within the Senior Executive Service.
The bill I have introduced, the Senior Executive Service Accountability Act, gives agencies commonsense tools to hold senior leaders more accountable for their taxpayer-funded work. Let me make this clear: the bill will make it easier to remove officials who have been found to have engaged in misconduct.
Specifically, it eliminates the current loophole that allows an executive who has been removed for poor performance and placed in a new Federal job from retaining their executive salary. It promotes fairness to make SES employees subject to the same employment standards as the employees they supervise.
It provides greater transparency on the number of senior leaders at each agency and their exact job requirements. It limits the amount of time an agency has to finalize its decision on whether to terminate an employee who has engaged in misconduct, thereby preventing bad actors from receiving their paychecks for months after they were found to have committed acts of misconduct.
Having said that, Mr. Speaker, I ask for the support of my colleagues on H.R. 5169.
Mr. CUMMINGS. Mr. Speaker, I will continue to reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Jordan).
Mr. JORDAN. I thank the gentleman for yielding, and I thank the gentleman from Michigan for his bill.
Mr. Speaker, this bill is about accountability, accountability for Senior Executive Service people, people like Lois Lerner.
The ranking member of the committee who I have a great deal of respect for stated in his opening comments that he is nervous about this legislation because it might ``politicize senior government officials.'' Well, that is what we have now.
I mean, what could be more political than a high-ranking official at the Internal Revenue Service targeting people who disagreed with her political views? This is all about holding people accountable who do the very things the ranking member talked about.
We need this legislation because, Lord knows, the Justice Department is not doing their job. They are not holding anyone accountable. I mean, think about this fact pattern: you have got the FBI leaking to The Wall Street Journal in January of this year that no one is going to be prosecuted in the IRS scandal.
You have got the President's now famous remark on Super Bowl Sunday, on national television, where he says:
There is no corruption here, not even a smidgen.
Talk about prejudging the outcome of a case when you have the highest-ranking official in the executive branch, and, of course, we have now--we have known about for several months--the lead attorney at the Justice Department on this case, Barbara Bosserman, who gave $6,750 to the President's reelection campaign and the Democratic National Committee; so, of course, we need something like this because the Justice Department isn't going to hold anyone to account.
Now, there is one bright spot, Mr. Speaker. This House in a bipartisan fashion told the Attorney General that we need a special prosecutor. Every single Republican voted for that measure. More importantly, 26 Democrats said, This is so egregious; this is so wrong. We not only need Mr. Walberg's legislation, but we need a special prosecutor in the Justice Department to hold people to account.
When I talk with folks back home--every single day I am out and about, they walk up to me. ``Someone needs to be held to account for systematically targeting our most fundamental right, our First Amendment right to speak out in a political fashion against our government. That was targeted, and people need to be held to account for it.''
That is why I applaud the gentleman from North Carolina for his work on the committee and the gentleman from Michigan for sponsoring this great piece of legislation.
Mr. CUMMINGS. I will continue to reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Goodlatte), the chairman of the Judiciary Committee.
Mr. GOODLATTE. Mr. Speaker, I thank the gentleman from North Carolina for his leadership on this issue and managing this bill, and I thank the gentleman from Michigan for his leadership and introduction of this legislation.
Mr. Speaker, the bills on the floor this evening represent our ongoing effort to get to the bottom of the IRS' targeting effort of innocent American citizens on the basis of their political beliefs and to ensure that such malfeasance never happens again.
As I have stated repeatedly over the past year, it is imperative that we find out who ordered the targeting, when the targeting was ordered, and why.
I commend my colleagues on the Oversight and Government Reform and Ways and Means Committees for their tireless pursuit of justice for the American people.
The Judiciary Committee has been an active partner in this effort. On May 15, 2013, Attorney General Eric Holder promised me and Judiciary Committee members that he would conduct a fair, impartial investigation of the IRS targeting matter.
The Attorney General made his famous pledge that:
This will not be about parties . . . this will not be about ideological persuasions . . . and anyone who has broken the law will be held accountable.
Unfortunately, that appears to be where the administration's commitment to pursuing this investigation ended. On May 7, 2014, following a year of no apparent progress in the investigation, the House passed H. Res. 565, calling on the Attorney General to appoint a special counsel to investigate the IRS targeting of conservative groups.
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That resolution, which laid out in detail the case for a special counsel, passed by a bipartisan vote of 250-168. Significantly, 26 Democrats joined in calling on the Attorney General of the United States to appoint an independent special counsel.
Since H. Res. 565 passed the House, other events have bolstered the already solid case for the appointment of a special counsel to investigate this matter. Incredibly, on June 13, the IRS announced that it had ``lost'' an untold number of emails belonging to Lois Lerner which were sought by congressional investigators. The ``lost'' emails covered the period between January 1, 2009, and April 2011, a period when the IRS' targeting of conservative groups was occurring regularly. How convenient.
Not 2 weeks ago, the IRS announced that it had also lost emails from five other employees involved in congressional investigations, including two agents in the supposedly ``rogue'' Cincinnati office. Again, how convenient.
On July 30, the Judiciary Committee held a hearing on the need for a special counsel to probe the IRS matter.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. MEADOWS. I yield the gentleman 1 additional minute.
Mr. GOODLATTE. At that hearing, we heard testimony that the Justice Department had demonstrated it ``can no longer fairly and justly oversee'' any further investigations into the ongoing IRS targeting scandal and the ``only opportunity for justice'' lies with an independent special counsel.
Unfortunately, Mr. Speaker, the Obama administration has repeatedly demonstrated its unwillingness to work with congressional investigators to ensure we all know the full story behind the IRS' targeting of conservative groups. Their attempt to pull the wool over the American peoples' eyes speaks volumes.
Mr. Speaker, I urge my colleagues to join me in support of our ongoing efforts to uncover the truth and ensure accountability for the IRS' targeting of conservative groups. I commend my colleagues for bringing these important bills to the floor, and I urge my colleagues to join me in voting for them.
Mr. CUMMINGS. Mr. Speaker, I continue to reserve the balance of my time.
Mr. MEADOWS. Mr. Speaker, I yield as much time as he may consume to the gentleman from Michigan (Mr. Walberg).
Mr. WALBERG. Mr. Speaker, I thank the gentleman from North Carolina for allowing me the opportunity to make a few closing comments on this issue that I wouldn't have introduced if I didn't feel it was important.
Senior executives have the opportunity to lead, to set policy, and to expand capabilities at their agency. This is a tremendous opportunity and privilege, a privilege of service we must not take lightly.
Now, I hasten to quickly state that a majority of Federal workers, including senior executives, are hardworking public servants doing the job that they have been asked to do, and I want to recognize and thank those hardworking men and women. Unfortunately, the recent scandals that we have talked about, like those at the VA and the IRS, have shined a light on those who have abused their position.
Lois Lerner certainly abused her position, and American taxpayers will never understand how Lois Lerner was placed on administrative leave on May 23, 2013, and then retired 4 months later on September 23, 2013, successfully avoiding termination after she acknowledged the IRS wrongfully scrutinized conservative groups for years. Ms. Lerner continued to receive a full salary during this time, roughly $60,000, for which the average American would have to work 15 months to earn.
Then members of our Oversight and Government Reform Committee know the full story, the story of the so-called secret agent man who was allowed for years to not show up to his department work under the ruse of being a CIA agent. There was an unbelievable breakdown in the senior executive oversight, I might state.
Now, the American people need to have confidence that these executives are acting honestly and responsibly, Mr. Speaker. The Senior Executive Accountability Act is an attempt, an important attempt, an important step towards holding bad actors accountable for their actions in restoring the public trust.
Mr. Speaker, I ask my colleagues for their support of H.R. 5169.
Mr. CUMMINGS. Mr. Speaker, may I ask how much time remains?
The SPEAKER pro tempore. The gentleman from Maryland has 16 minutes remaining.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we do oppose this legislation. We understand the intent of the sponsor, and we applaud him for his efforts. I think that we have to be very, very careful with people's constitutional rights I have stated in my opposition.
With that, Mr. Speaker, I urge Members to vote against the legislation, and I yield back the balance of my time.
Mr. MEADOWS. Mr. Speaker, I am willing to close with just a few remarks.
Mr. Speaker, perhaps the IRS and the scandals that have been surrounding that are not a big deal to address this piece of legislation. Perhaps a picture of the gentleman in a Las Vegas hot tub is not a reason to address this piece of legislation, but I can tell you that our veterans are, Mr. Speaker.
Those facts that have been the headlines for far too long really are at the core of what we are as a body, that we must protect the men and women who have fought so valiantly for our country and for the freedoms. If we cannot hold our senior executives accountable for the sake of our veterans, then what good is there of any law?
What we must do, Mr. Speaker, I urge my colleagues to join me in supporting this for the veterans of our country to make sure that there is more accountability on behalf of American taxpayers so that we, once again, can start to trust our government.
With that, I yield back the balance of my time, Mr. Speaker.
The SPEAKER pro tempore. The question is on the motion offered by the gentleman from North Carolina (Mr. Meadows) that the House suspend the rules and pass the bill, H.R. 5169, as amended.
The question was taken; and (two-thirds being in the affirmative) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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