107TH CONGRESS REPT. 107–379 " ! HOUSE OF REPRESENTATIVES 2d Session Part 2

DIGITAL TECH CORPS ACT OF 2002

APRIL 9, 2002.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 3925]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3925) to establish an exchange program between the Federal

Government and the private sector in order to promote the development of expertise in information technology management, and for

other purposes, having considered the same, reports favorably

thereon with amendments and recommends that the bill as amended do pass.

CONTENTS

Page

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 3

Committee Consideration ........................................................................................ 3

Vote of the Committee ............................................................................................. 3

Committee Oversight Findings ............................................................................... 3

Performance Goals and Objectives ......................................................................... 4

New Budget Authority and Tax Expenditures ...................................................... 4

Congressional Budget Office Cost Estimate .......................................................... 4

Constitutional Authority Statement ...................................................................... 5

Section-by-Section Analysis and Discussion .......................................................... 6

Changes in Existing Law Made by the Bill, as Reported ..................................... 9

Markup Transcript .................................................................................................. 11

Dissenting Views ..................................................................................................... 37

2

The amendments (stated in terms of the page and line numbers to the committee print document containing the text of the

amendment as reported by the Committee on Government Reform)

are as follows:

Page 8, lines 12-13, strike ‘‘, notwithstanding section 209 of

title 18,’’.

Page 14, strike lines 4 through 6 and insert the following:

‘‘(v) assigned from a private sector organization to an agency under chapter 37 of title 5.’’.

Page 14, line 10, strike the comma after ‘‘is’’.

Page 14, line 10, strike ‘‘within the past three years,’’.

Page 17, after line 7, insert the following:

(b) AMENDMENT TO TITLE 18, UNITED STATES CODE.— Section 209 of title 18, United States Code, is amended by

adding at the end the following: ‘‘(g)(1) This section does not prohibit an employee of a

private sector organization, while assigned to an agency

under chapter 37 of title 5, from continuing to receive pay

and benefits from such organization in accordance with

such chapter. ‘‘(2) For purposes of this subsection, the term ‘agency’

means an agency (as defined by section 3701 of title 5) and

the Office of the Chief Technology Officer of the District of

Columbia.’’.

Page 17, line 8, strike ‘‘(b)’’ and insert ‘‘(c)’’.

PURPOSE AND SUMMARY

H.R. 3925, the ‘‘Digital Tech Corps Act of 2002,’’ establishes an

employee exchange program for information technology management personnel between the Federal Government and the private

sector. H.R. 3925 provides Federal employees throughout the Federal Government with additional on-the-job training and education.

Additionally, the bill will enhance the ability of Federal agencies to

attract and retain quality information technology experts.

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 3925 was introduced by Representatives Burton and Davis

on March 12, 2002. The Committee on Government Reform reported the bill, as amended, favorably on March 14, 2002. The legislation was then referred to the Committees on the Judiciary and

Ways and Means for a 1-day referral on March 18, 2002 and that

referral was extended to April 9, 2002.

H.R. 3925, the ‘‘Digital Tech Corps Act of 2002’’, is in response

to a growing concern that the Federal Government is unable to attract and retain quality information technology experts. This problem is magnified with the increased use of technology throughout

the Federal Government.

The Government Accounting Office (GAO) has found that the

Federal Government is facing a substantial human capital shortage

and the shortage will intensify because 34 percent of the Federal

workforce will be eligible to retire in the next 5 years. This shortVerDate 11-MAY-2000 23:12 Apr 09, 2002 Jkt 099006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR379P2.XXX pfrm09 PsN: HR379P2
3

1 H.R. Rep. No. 107–379, pt. 1, at 6. 2 H.R. Rep. No. 107–379, pt. 1, at 7. 3 H.R. Rep. No. 107–379, pt. 1, at 7.

fall is even worse for the information technology fields. When a

GAO official testified before the Government Reform Committee

last summer on the earlier version of the bill, GAO explained that

‘‘estimated that fifty percent of the government’s technology workforce will be eligible to retire by 2006.’’ 1

Information technology is one of the top priorities for the Nation

in all respects including national security, law enforcement and

economic growth. As the Congress continues to provide more technology resources to the Executive branch, it must also address the

human resource issues. This bill is designed to assist the government to attract mid-level information technology (IT) managers and

retain its current workforce. The goal of the legislation is to create

an exchange program to ‘‘help Federal agencies retain quality IT

managers by offering them exposure to new management concepts

and leading-edge organizations. This exchange program should

make Federal service more attractive, and at the same time, improve the skills of Federal IT managers.’’ 2

The Committee on Government Reform explained that: ‘‘The Digital Tech Corps enables an exchange program that can begin as

soon as an agency negotiates an exchange agreement with a private sector entity. Private sector IT volunteers for the Tech Corps

will come into government at the GS–11 through 15 levels for a period of 6 months to 2 years, but they will continue to receive pay

and benefits from their private sector employer. Federal agency IT

volunteers will have the opportunity to go to work for leading-edge

private sector companies for a similar period and will retain their

government pay and benefits. This type of public-private exchange

program will allow for greater knowledge transfer and cross-pollination of ideas, cultures, and processes between the public and private sectors.’’ 3

HEARINGS

The Committee on the Judiciary did not hold hearings on H.R.

3925, the ‘‘Digital Tech Corps Act of 2002.’’

COMMITTEE CONSIDERATION

On March 20, 2002, the Committee met in open session and ordered favorably reported the bill H.R. 3925, as amended, by a voice

vote, a quorum being present.

VOTE OF THE COMMITTEE

No recorded votes were taken on the bill H.R. 3925 during Committee consideration.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of RepVerDate 11-MAY-2000 23:12 Apr 09, 2002 Jkt 099006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\HR379P2.XXX pfrm09 PsN: HR379P2
4

resentatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

The bill is intended to improve the ability of Federal agencies to

attract and retain information technology personnel by providing

them an opportunity to work at leading-edge private sector companies and gain greater knowledge and an exchange of ideas with the

private sector while they retain their Federal pay and benefits. At

the same time, the bill will offer private sector employees, in return, an opportunity to exchange ideas and cultures in the Federal

work force will continuing to receive their private sector pay and

benefits.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill, H.R. 3925, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, March 29, 2002.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3925, the Digital Tech

Corps Act of 2002.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Matthew Pickford (for

Federal costs), who can be reached at 226–2860, and Susan Sieg

Tompkins (for the State and local impact), who can be reached at

225–3220.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

H.R. 3925—Digital Tech Corps Act of 2002.

CBO estimates that enacting H.R. 3925 would cost less than

$500,000, subject to the appropriation of the necessary funds.

These amounts include administrative and reporting costs for the

Office of Personnel Management (OPM) and the General Accounting Office (GAO). Enacting the bill could also increase the collections of civil and criminal fines, but CBO estimates that any inVerDate 11-MAY-2000 23:12 Apr 09, 2002 Jkt 099006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR379P2.XXX pfrm09 PsN: HR379P2
5

crease would not be significant. Because the bill could affect direct

spending and receipts (civil and criminal fines), pay-as-you-go procedures would apply.

The bill 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 District

of Columbia could benefit from provisions of the bill that would authorize employees in the Office of the Chief Technology Officer to

be assigned to a private-sector organization or an employee of such

organization to be assigned to the Office.

H.R. 3925 would establish an exchange program between the

Federal Government and the private sector to promote information

technology management. The bill would allow the exchange of employees for up to 2 years between the public and private sectors to

share information management talent and expertise. Private-sector

employers could be reimbursed for all or part of the cost of their

employees’ assignment with the Federal Government. Alternatively, H.R. 3925 would allow for Federal agencies to accept voluntary employment services from the private sector.

A recent report by the GAO indicates that the demand for qualified information technology workers will exceed the supply, hence

it is unlikely that private-sector employers will be willing to part

with many such employees for extended periods. Any exchange of

employees that involves reimbursement to the private sector would

be subject to the availability of appropriated funds for salary, training, and educational expenses.

Violations of the provisions of H.R. 3925 could be subject to civil

and criminal fines, so the Federal Government might collect additional fines if the bill is enacted. Collections of civil fines are recorded as receipts and deposited into the general fund of the Treasury. Criminal fines are recorded in the budget as governmental receipts (revenues), which are deposited in the Crime Victims Fund

and spent in subsequent years. CBO expects that any additional receipts or direct spending would be less than $500,000 each year.

On March 18, 2002, CBO prepared a cost estimate for H.R. 3925

as ordered reported by the House Committee on Government Reform on March 14, 2002. The two estimates differ because the Judiciary Committee’s version of H.R. 3925 would place additional reporting requirements on OPM and GAO, and because it would impose new civil and criminal penalities.

The CBO staff contacts for this estimate are Matthew Pickford

(for Federal costs), who can be reached at 226–2860, and Susan

Sieg Tompkins (for the State and local impact), who can be reached

at 225–3220. The estimate was approved by Peter H. Fontaine,

Deputy Assistant Director for Budget Analysis Division.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in Article I, section 8, of the Constitution.

6

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

SECTION 1. SHORT TITLE; TABLE OF CONTENTS

This section provides that the short title of the bill is the ‘‘Digital

Tech Corps Act of 2002.’’

SECTION 2. FINDINGS

This section of the bill provides the following congressional

findings—

(1) unless action is taken soon, there will be a crisis in the

government’s ability to deliver essential services to the

American people;

(2) by 2006, over 50 percent of the Federal Government’s information technology workforce will be eligible to retire, creating a huge demand in the Federal Government for highskill workers;

(3) despite a 44 percent decrease in the demand for information technology workers in the private sector, the Information Technology Association of America reported in 2001

that employers will need to fill over 900,000 new information technology jobs and will be unable to find qualified

workers for 425,000 of those jobs;

(4) to highlight the urgency of this situation, in January 2001,

the General Accounting Office added the Federal Government’s human capital management to its list of high-risk

problems for which an effective solution must be found;

(5) despite efforts to increase flexibility in Federal agencies’

employment practices, compensation issues continue to severely restrain recruitment for Federal agencies; and

(6) an effective, efficient, and economical response to this crisis

would be to create a vibrant, on-going exchange effort designed to share talent, expertise, and advances in management between leading-edge businesses and Federal agencies engaged in best practices.

SECTION 3. INFORMATION TECHNOLOGY EXCHANGE PROGRAM.

This section of the bill provides that in general Subpart B of part

III of title 5, of the United States Code is amended by adding

Chapter 37—Information Technology Exchange Program at the

end.

‘‘Chapter 37—Information Technology Exchange Program’’

Section 3701. Definitions.

This new section of title 5 defines ‘‘agency’’ and ‘‘detail.’’

Section 3702. General Provisions.

This new section of title 5 authorizes the head of any agency to

arrange for the assignment of an employee of the agency to a private sector organization or an employee of a private sector organization to the agency.

Additionally, this section requires that each agency exercising

this authority provide for a written agreement between the agency

7

and the employee concerned regarding the terms and conditions of

the employee’s assignment. These assignments may be terminated

for any reason at any time. The assignments may be for 6 months

to 1 year. The duration may be extended in 3-month increments for

an additional year. The Chief Information Officers Council may assist in the administration of this chapter.

Additionally, this section includes a sunset provision that requires this Act to sunset after 5 years.

Section 3703. Assignment of employees to private sector organizations.

This new section of title 5 governs the assignments of Federal

employees to private sector organizations. Under this section a

Federal employee detailed to a private sector organization retains

his government pay, credits for step increases, retention, worker’s

compensation, sick and leave accrual, insurance and retirement

benefits. Additionally, subparagraph (d) of this section provides

that Federal employees detailed under this program will continue

to be covered by the Federal Tort Claims Act and any other applicable tort liability statutes.

Section 3704. Assignment of employees from private sector organizations.

This new section of title 5 governs the assignment of private sector employees to Federal Government agencies. This section requires that private sector employees adhere to Federal employee

ethics, revolving door prohibitions (prohibits lobbying for a period

of time after leaving government employment), and accountability

provisions during and after their assignments in the Digital Tech

Corps. Much of these requirements are within title 18 of the

United States Code. The Committee believes any exceptions to

these requirements must be included under title 18 and amended

the bill accordingly.

Specifically, a private sector employee under § 3704 is deemed a

Federal Government employee for purposes of:

(1) The Hatch Act (Chapter 73). This puts a Tech Corps private sector volunteer that is detailed to a Federal agency

under the provisions of the Hatch Act.

(2) 18 U.S.C. §§ 201, 203, 205, 207, 208, 209, 603, 603, 607,

643, 654, 1905, and 1913. These criminal law provisions

apply to Digital Tech Corps participants and include: (1)

acting as a lobbyist (for 1 year after the exchange); (2) accepting bribes for official work; (3) aiding in the obtaining

of contracts (1 year after); (4) suing the government (other

than in the proper discharge of official duties); (5) revolving

door activities; (6) financial conflicts of interest; (7) making

political contributions; (8) intimidation to secure political

contributions; (9) receipt of political contributions; (10) embezzlement; (11) disclosure of confidential information/

trade secrets (for 3 years after detail); and (12) lobbying

with appropriated moneys.

(3) 31 U.S.C. §§ 1343, 1344, and 1349(b): These provisions set

out that Tech Corps detailees are forbidden to have government funded transportation furnished for their use.

8

4 H.R. Rep. No. 107–379, pt. 1, at 11.

(4) Ethics in Government Act of 1978.

(5) Section 1043 of the Internal Revenue Code of 1986: This

provision affects sale of property to resolve financial conflicts of interest and specifies how the IRS treats these

sales.

(6) 41 U.S.C. 423 (Section 27 of the Office of Federal Procurement Policy Act). This provision prohibits Tech Corps

detailees from disclosing procurement information, during

and for 3 years after the detail. 4

Sec. 3705. Application to Office of Chief Technology Officer of the

District of Columbia.

This new section of title 5 provides that the Digital Tech Corps

program would apply to IT workers and agencies in the District of

Columbia Government.

Sec. 3706. Reporting Requirements.

This section requires the GAO and the Office of Personnel Management (OPM) to report to the House and Senate Committees on

Government Reform.

Sec. 3707. Regulations.

This section requires that the Office of Personnel Management

(OPM) set forth regulations regarding this act.

Sec. 4. Ethics Provisions.

Subparagraph (a) of this section of the bill would amend title 18

U.S.C. § 207(c)(2)(A) to cover the private sector employee assigned

to a Federal agency. Section 207 restricts a Federal employee from

lobbying the Federal Government for specific duration after the termination of that employee’s Federal job. This section would extend

the prohibition to the private sector employees who are detailed to

a Federal agency under the Digital Tech Corps Program.

Subparagraph (b) of this section of the bill would amend title 18

U.S.C. § 1905 to cover the private sector employee assigned to a

Federal agency. Section 1905 prohibits Federal employees from disclosing confidential information. This section would extend that

prohibition to the private sector employees who are detailed to a

Federal agency under the Digital Tech Corps Program and extend

that prohibition for 3 years after the detail has ended.

Subparagraph (c) of this section would amend title 18 U.S.C. 207

by adding a new section. That section would prohibit a former private detailee, for 1 year after the end of the detail, from knowingly

representing or aiding, counseling, or assisting in representing any

other person in connection with any contract with the agency to

which the private employee was detailed.

Subparagraph (d) of this section would amend section 27 of the

Office of Federal Procurement Policy Act (41 U.S.C. 423) by adding

a new sentence that would restrict an employee of a private sector

organization assigned to an agency from knowingly disclosing contractor bid or proposal information or source selection information

during the 3-year period after the end of the detail.

9

The Committee believes that it is important to apply these prohibitions and restrictions consistently throughout the Federal Government to ensure the integrity of the Federal workforce as well as

this exchange program.

Sec. 5. Report on Existing Exchange Programs.

This section of the bill would require that OPM prepare and submit within a year of enactment to the Senate and House Government Reform Committees a report identifying all existing exchange

programs.

Sec. 6. Technical and Conforming Amendments.

This section of the bill would provide technical and conforming

amendments.

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 by the Committee on Government Reform, are shown

in Report 107–379 part 1, filed on March 18, 2002.

The Committee on the Judiciary adopted amendments (shown

at the beginning of this report) to the bill as reported by the Committee on Government Reform. Changes in provisions of existing

law that would result from those amendments and differ from the

changes that would result from the bill as reported by the Committee on Government Reform are shown as follows (existing law

proposed to be omitted is enclosed in black brackets, new matter

is printed in italics, and existing law in which no change is proposed is shown in roman):

TITLE 5, UNITED STATES CODE

* * * * * * *

PART III—EMPLOYEES

* * * * * * *

CHAPTER 37—INFORMATION TECHNOLOGY EXCHANGE

PROGRAM

* * * * * * *

§ 3704. Assignment of employees from private sector organizations

(a) IN GENERAL.—An employee of a private sector organization

assigned to an agency under this chapter is deemed, during the period of the assignment, to be on detail to such agency.

(b) TERMS AND CONDITIONS.—An employee of a private sector

organization assigned to an agency under this chapter—

10

(1) may continue to receive pay and benefits from the private sector organization from which he is assigned;

* * * * * * *

TITLE 18, UNITED STATES CODE

PART I—CRIMES

* * * * * * *

CHAPTER 11—BRIBERY, GRAFT, AND CONFLICTS OF

INTEREST

* * * * * * *

§ 207. Restrictions on former officers, employees, and elected

officials of the executive and legislative branches

(a) * * *

* * * * * * *

(c) ONE-YEAR RESTRICTIONS ON CERTAIN SENIOR PERSONNEL

OF THE EXECUTIVE BRANCH AND INDEPENDENT AGENCIES.— (1) * * *

(2) PERSONS TO WHOM RESTRICTIONS APPLY.—(A) Paragraph (1) shall apply to a person (other than a person subject

to the restrictions of subsection (d))— (i) * * *

(iii) appointed by the President to a position under

section 105(a)(2)(B) of title 3 or by the Vice President to

a position under section 106(a)(1)(B) of title 3, øor¿

(iv) employed in a position which is held by an active

duty commissioned officer of the uniformed services who is

serving in a grade or rank for which the pay grade (as

specified in section 201 of title 37) is pay grade O–7 or

aboveø.¿; or

* * * * * * *

(v) assigned from a private sector organization to an

agency under chapter 37 of title 5.

* * * * * * *

§ 209. Salary of Government officials and employees payable

only by United States

(a) * * *

* * * * * * *

(g)(1) This section does not prohibit an employee of a private

sector organization, while assigned to an agency under chapter 37

of title 5, from continuing to receive pay and benefits from such organization in accordance with such chapter.

(2) For purposes of this subsection, the term ‘‘agency’’ means an

agency (as defined by section 3701 of title 5) and the Office of the

Chief Technology Officer of the District of Columbia.

* * * * * * *

11

CHAPTER 93—PUBLIC OFFICERS AND EMPLOYEES

* * * * * * *

§ 1905. Disclosure of confidential information generally

Whoever, being an officer or employee of the United States or

of any department or agency thereof, any person acting on behalf

of the Office of Federal Housing Enterprise Oversight, or agent of

the Department of Justice as defined in the Antitrust Civil Process

Act (15 U.S.C. 1311–1314), or being an employee of a private sector

organization who is or was assigned to an agency under chapter 37

of title 5, publishes, divulges, discloses, or makes known in any

manner or to any extent not authorized by law any information

coming to him in the course of his employment or official duties or

by reason of any examination or investigation made by, or return,

report or record made to or filed with, such department or agency

or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or

apparatus, or to the identity, confidential statistical data, amount

or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any

income return or copy thereof or any book containing any abstract

or particulars thereof to be seen or examined by any person except

as provided by law; shall be fined under this title, or imprisoned

not more than one year, or both; and shall be removed from office

or employment.

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING

WEDNESDAY, MARCH 20, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:50 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.

Chairman SENSENBRENNER. The Committee will be in order.

First up is a proposed change in the name of the Subcommittee

on Crime to the Subcommittee on Crime, Terrorism, and Homeland

Security.

This is in keeping with the true style of other Committees in the

Capitol who fancy names in expanded jurisdiction.

And without objection, the name change is approved, and all

Members may insert statements in the record.

Now, second on the agenda is H.R. 3925, which establishes an

exchange program between the Federal Government and the private sector to promote the development of expertise in information

technology management and for other purposes.

[The bill, H.R. 3925, follows:]

12

Union Calendar No. 

107TH CONGRESS 

2D SESSION H. R. 3925

[Report No. 107– ] 

To establish an exchange program between the Federal Government and 

the private sector in order to promote the development of expertise 

in information technology management, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 12, 2002

Mr. TOM DAVIS of Virginia (for himself and Mr. BURTON of Indiana) introduced the following bill; which was referred to the Committee on Government Reform 

MARCH , 2002

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on March 12, 2002] 

A BILL

To establish an exchange program between the Federal Government and the private sector in order to promote the 

development of expertise in information technology management, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

13

2

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Digital Tech Corps Act 

3 of 2002’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that—

6 (1) unless action is taken soon, there will be a 

7 crisis in the government’s ability to deliver essential 

8 services to the American people; 

9 (2) by 2006, over 50 percent of the Federal Gov10 ernment’s information technology workforce will be el11 igible to retire, creating a huge demand in the Fed12 eral Government for high-skill workers; 

13 (3) despite a 44 percent decrease in the demand 

14 for information technology workers in the private sec15 tor, the Information Technology Association of Amer16 ica reported in 2001 that employers will need to fill 

17 over 900,000 new information technology jobs and 

18 will be unable to find qualified workers for 425,000 

19 of those jobs; 

20 (4) to highlight the urgency of this situation, in 

21 January 2001, the General Accounting Office added 

22 the Federal Government’s human capital management 

23 to its list of high-risk problems for which an effective 

24 solution must be found; 

25 (5) despite efforts to increase flexibility in Fed26 eral agencies’ employment practices, compensation 

14

3

1 issues continue to severely restrain recruitment for 

2 Federal agencies; and 

3 (6) an effective, efficient, and economical re4 sponse to this crisis would be to create a vibrant, on5 going exchange effort designed to share talent, exper6 tise, and advances in management between leading7 edge businesses and Federal agencies engaged in best 

8 practices. 

9 SEC. 3. INFORMATION TECHNOLOGY EXCHANGE PROGRAM. 

10 (a) IN GENERAL.—Subpart B of part III of title 5, 

11 United States Code, is amended by adding at the end the 

12 following: 

13 ‘‘CHAPTER 37—INFORMATION 

14 TECHNOLOGY EXCHANGE PROGRAM

‘‘Sec. 

‘‘3701. Definitions. 

‘‘3702. General provisions. 

‘‘3703. Assignment of employees to private sector organizations. 

‘‘3704. Assignment of employees from private sector organizations. 

‘‘3705. Application to Office of the Chief Technology Officer of the District of Columbia. 

‘‘3706. Reporting requirement. 

‘‘3707. Regulations.

15 ‘‘§ 3701. Definitions 

16 ‘‘For purposes of this chapter—

17 ‘‘(1) the term ‘agency’ means an Executive agen18 cy, but does not include the General Accounting Of19 fice; and 

20 ‘‘(2) the term ‘detail’ means—

15

4

1 ‘‘(A) the assignment or loan of an employee 

2 of an agency to a private sector organization 

3 without a change of position from the agency 

4 that employs the individual, or 

5 ‘‘(B) the assignment or loan of an employee 

6 of a private sector organization to an agency 

7 without a change of position from the private 

8 sector organization that employs the individual, 

9 whichever is appropriate in the context in which such 

10 term is used. 

11 ‘‘§ 3702. General provisions 

12 ‘‘(a) ASSIGNMENT AUTHORITY.—On request from or 

13 with the agreement of a private sector organization, and 

14 with the consent of the employee concerned, the head of an 

15 agency may arrange for the assignment of an employee of 

16 the agency to a private sector organization or an employee 

17 of a private sector organization to the agency. An eligible 

18 employee is an individual who—

19 ‘‘(1) works in the field of information technology 

20 management; 

21 ‘‘(2) is considered an exceptional performer by 

22 the individual’s current employer; and 

23 ‘‘(3) is expected to assume increased information 

24 technology management responsibilities in the future. 

16

5

1 An employee of an agency shall be eligible to participate 

2 in this program only if the employee is employed at the 

3 GS–11 level or above (or equivalent) and is serving under 

4 a career or career-conditional appointment or an appoint5 ment of equivalent tenure in the excepted service. 

6 ‘‘(b) AGREEMENTS.—Each agency that exercises its 

7 authority under this chapter shall provide for a written 

8 agreement between the agency and the employee concerned 

9 regarding the terms and conditions of the employee’s assign10 ment. In the case of an employee of the agency, the agree11 ment shall—

12 ‘‘(1) require the employee to serve in the civil 

13 service, upon completion of the assignment, for a pe14 riod equal to the length of the assignment; and 

15 ‘‘(2) provide that, in the event the employee fails 

16 to carry out the agreement (except for good and suffi17 cient reason, as determined by the head of the agency 

18 from which assigned) the employee shall be liable to 

19 the United States for payment of all expenses of the 

20 assignment. 

21 An amount under paragraph (2) shall be treated as a debt 

22 due the United States. 

23 ‘‘(c) TERMINATION.—Assignments may be terminated 

24 by the agency or private sector organization concerned for 

25 any reason at any time. 

17

6

1 ‘‘(d) DURATION.—Assignments under this chapter 

2 shall be for a period of between 6 months and 1 year, and 

3 may be extended in 3-month increments for a total of not 

4 more than 1 additional year, except that no assignment 

5 under this chapter may commence after the end of the 5-

6 year period beginning on the date of the enactment of this 

7 chapter. 

8 ‘‘(e) ASSISTANCE.—The Chief Information Officers 

9 Council, by agreement with the Office of Personnel Manage10 ment, may assist in the administration of this chapter, in11 cluding by maintaining lists of potential candidates for as12 signment under this chapter, establishing mentoring rela13 tionships for the benefit of individuals who are given as14 signments under this chapter, and publicizing the program. 

15 ‘‘§ 3703. Assignment of employees to private sector or16 ganizations 

17 ‘‘(a) IN GENERAL.—An employee of an agency as18 signed to a private sector organization under this chapter 

19 is deemed, during the period of the assignment, to be on 

20 detail to a regular work assignment in his agency. 

21 ‘‘(b) COORDINATION WITH CHAPTER 81.—Notwith22 standing any other provision of law, an employee of an 

23 agency assigned to a private sector organization under this 

24 chapter is entitled to retain coverage, rights, and benefits 

25 under subchapter I of chapter 81, and employment during 

18

7

1 the assignment is deemed employment by the United States, 

2 except that, if the employee or the employee’s dependents 

3 receive from the private sector organization any payment 

4 under an insurance policy for which the premium is wholly 

5 paid by the private sector organization, or other benefit of 

6 any kind on account of the same injury or death, then, the 

7 amount of such payment or benefit shall be credited against 

8 any compensation otherwise payable under subchapter I of 

9 chapter 81. 

10 ‘‘(c) REIMBURSEMENTS.—The assignment of an em11 ployee to a private sector organization under this chapter 

12 may be made with or without reimbursement by the private 

13 sector organization for the travel and transportation ex14 penses to or from the place of assignment, subject to the 

15 same terms and conditions as apply with respect to an em16 ployee of a Federal agency or a State or local government 

17 under section 3375, and for the pay, or a part thereof, of 

18 the employee during assignment. Any reimbursements shall 

19 be credited to the appropriation of the agency used for pay20 ing the travel and transportation expenses or pay. 

21 ‘‘(d) TORT LIABILITY; SUPERVISION.—The Federal 

22 Tort Claims Act and any other Federal tort liability statute 

23 apply to an employee of an agency assigned to a private 

24 sector organization under this chapter. The supervision of 

25 the duties of an employee of an agency so assigned to a 

19

8

1 private sector organization may be governed by an agree2 ment between the agency and the organization. 

3 ‘‘§ 3704. Assignment of employees from private sector 

4 organizations 

5 ‘‘(a) IN GENERAL.—An employee of a private sector 

6 organization assigned to an agency under this chapter is 

7 deemed, during the period of the assignment, to be on detail 

8 to such agency. 

9 ‘‘(b) TERMS AND CONDITIONS.—An employee of a pri10 vate sector organization assigned to an agency under this 

11 chapter—

12 ‘‘(1) may, notwithstanding section 209 of title 

13 18, continue to receive pay and benefits from the pri14 vate sector organization from which he is assigned; 

15 ‘‘(2) is deemed, notwithstanding subsection (a), 

16 to be an employee of the agency for the purposes of—

17 ‘‘(A) chapter 73; 

18 ‘‘(B) sections 201, 203, 205, 207, 208, 209, 

19 603, 606, 607, 643, 654, 1905, and 1913 of title 

20 18; 

21 ‘‘(C) sections 1343, 1344, and 1349(b) of 

22 title 31; 

23 ‘‘(D) the Federal Tort Claims Act and any 

24 other Federal tort liability statute; 

25 ‘‘(E) the Ethics in Government Act of 1978; 

20

9

1 ‘‘(F) section 1043 of the Internal Revenue 

2 Code of 1986; and 

3 ‘‘(G) section 27 of the Office of Federal Pro4 curement Policy Act; and 

5 ‘‘(3) is subject to such regulations as the Presi6 dent may prescribe. 

7 The supervision of an employee of a private sector organiza8 tion assigned to an agency under this chapter may be gov9 erned by agreement between the agency and the private sec10 tor organization concerned. Such an assignment may be 

11 made with or without reimbursement by the agency for the 

12 pay, or a part thereof, of the employee during the period 

13 of assignment, or for any contribution of the private sector 

14 organization to employee benefit systems. 

15 ‘‘(c) COORDINATION WITH CHAPTER 81.—An em16 ployee of a private sector organization assigned to an agen17 cy under this chapter who suffers disability or dies as a 

18 result of personal injury sustained while performing duties 

19 during the assignment shall be treated, for the purpose of 

20 subchapter I of chapter 81, as an employee as defined by 

21 section 8101 who had sustained the injury in the perform22 ance of duty, except that, if the employee or the employee’s 

23 dependents receive from the private sector organization any 

24 payment under an insurance policy for which the premium 

25 is wholly paid by the private sector organization, or other 

21

10

1 benefit of any kind on account of the same injury or death, 

2 then, the amount of such payment or benefit shall be cred3 ited against any compensation otherwise payable under 

4 subchapter I of chapter 81.

5 ‘‘§ 3705. Application to Office of the Chief Technology 

6 Officer of the District of Columbia 

7 ‘‘(a) IN GENERAL.—The Chief Technology Officer of 

8 the District of Columbia may arrange for the assignment 

9 of an employee of the Office of the Chief Technology Officer 

10 to a private sector organization, or an employee of a private 

11 sector organization to such Office, in the same manner as 

12 the head of an agency under this chapter. 

13 ‘‘(b) TERMS AND CONDITIONS.—An assignment made 

14 pursuant to subsection (a) shall be subject to the same terms 

15 and conditions as an assignment made by the head of an 

16 agency under this chapter, except that in applying such 

17 terms and conditions to an assignment made pursuant to 

18 subsection (a), any reference in this chapter to a provision 

19 of law or regulation of the United States shall be deemed 

20 to be a reference to the applicable provision of law or regu21 lation of the District of Columbia, including the applicable 

22 provisions of the District of Columbia Government Com23 prehensive Merit Personnel Act of 1978 (sec. 1–601.01 et 

24 seq., D.C. Official Code) and section 601 of the District of 

22

11

1 Columbia Campaign Finance Reform and Conflict of Inter2 est Act (sec. 1–1106.01, D.C. Official Code). 

3 ‘‘(c) DEFINITION.—For purposes of this section, the 

4 term ‘Office of the Chief Technology Officer’ means the office 

5 established in the executive branch of the government of the 

6 District of Columbia under the Office of the Chief Tech7 nology Officer Establishment Act of 1998 (sec. 1–1401 et 

8 seq., D.C. Official Code).

9 ‘‘§ 3706. Reporting requirement 

10 ‘‘(a) IN GENERAL.—The Office of Personnel Manage11 ment shall, not later than April 30 and October 31 of each 

12 year, prepare and submit to the Committee on Government 

13 Reform of the House of Representatives and the Committee 

14 on Governmental Affairs of the Senate a semiannual report 

15 summarizing the operation of this chapter during the im16 mediately preceding 6-month period ending on March 31 

17 and September 30, respectively. 

18 ‘‘(b) CONTENT.—Each report shall include, with re19 spect to the 6-month period to which such report relates—

20 ‘‘(1) the total number of individuals assigned to, 

21 and the total number of individuals assigned from, 

22 each agency during such period; 

23 ‘‘(2) a brief description of each assignment in24 cluded under paragraph (1), including—

23

12

1 ‘‘(A) the name of the assigned individual, as 

2 well as the private sector organization and the 

3 agency (including the specific bureau or other 

4 agency component) to or from which such indi5 vidual was assigned; 

6 ‘‘(B) the respective positions to and from 

7 which the individual was assigned, including the 

8 duties and responsibilities and the pay grade or 

9 level associated with each; and 

10 ‘‘(C) the duration and objectives of the indi11 vidual’s assignment; and 

12 ‘‘(3) such other information as the Office con13 siders appropriate. 

14 ‘‘(c) PUBLICATION.—A copy of each report submitted 

15 under subsection (a)—

16 ‘‘(1) shall be published in the Federal Register; 

17 and 

18 ‘‘(2) shall be made publicly available on the 

19 Internet. 

20 ‘‘(d) AGENCY COOPERATION.—On request of the Office, 

21 agencies shall furnish such information and reports as the 

22 Office may require in order to carry out this section. 

24

13

1 ‘‘§ 3707. Regulations 

2 ‘‘The Director of the Office of Personnel Management 

3 shall prescribe regulations for the administration of this 

4 chapter.’’.

5 (b) REPORT.—Not later than 4 years after the date 

6 of the enactment of this Act, the General Accounting Office 

7 shall prepare and submit to the Committee on Government 

8 Reform of the House of Representatives and the Committee 

9 on Governmental Affairs of the Senate a report on the oper10 ation of chapter 37 of title 5, United States Code (as added 

11 by this section). Such report shall include—

12 (1) an evaluation of the effectiveness of the pro13 gram established by such chapter; and 

14 (2) a recommendation as to whether such pro15 gram should be continued (with or without modifica16 tion) or allowed to lapse. 

17 (c) CLERICAL AMENDMENT.—The analysis for part III 

18 of title 5, United States Code, is amended by inserting after 

19 the item relating to chapter 35 the following:

‘‘37. Information Technology Exchange Program ......................................... 3701’’.

20 SEC. 4. ETHICS PROVISIONS. 

21 (a) ONE-YEAR RESTRICTION ON CERTAIN COMMU22 NICATIONS.—Section 207(c)(2)(A) of title 18, United States 

23 Code, is amended—

24 (1) by striking ‘‘or’’ at the end of clause (iii); 

25

14

1 (2) by striking the period at the end of clause 

2 (iv) and inserting ‘‘; or’’; and 

3 (3) by adding at the end the following: 

4 ‘‘(v) an employee of a private sector organi5 zation assigned to an agency under chapter 37 

6 of title 5.’’. 

7 (b) DISCLOSURE OF CONFIDENTIAL INFORMATION.—

8 Section 1905 of title 18, United States Code, is amended 

9 by inserting ‘‘or being an employee of a private sector orga10 nization who is, or was within the past three years, as11 signed to an agency under chapter 37 of title 5,’’ after ‘‘(15 

12 U.S.C. 1311–1314),’’. 

13 (c) CONTRACT ADVICE.—Section 207 of title 18, 

14 United States Code, is amended by adding at the end the 

15 following: 

16 ‘‘(l) CONTRACT ADVICE BY FORMER DETAILS.—Who17 ever, being an employee of a private sector organization as18 signed to an agency under chapter 37 of title 5, within one 

19 year after the end of that assignment, knowingly represents 

20 or aids, counsels, or assists in representing any other person 

21 (except the United States) in connection with any contract 

22 with that agency shall be punished as provided in section 

23 216 of this title.’’. 

24 (d) RESTRICTION ON DISCLOSURE OF PROCUREMENT

25 INFORMATION.—Section 27 of the Office of Federal ProcureVerDate 11-MAY-2000 23:12 Apr 09, 2002 Jkt 099006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6601 E:\HR\OC\HR379P2.XXX pfrm09 PsN: HR379P2
26

15

1 ment Policy Act (41 U.S.C. 423) is amended in subsection 

2 (a)(1) by adding at the end the following new sentence: ‘‘In 

3 the case of an employee of a private sector organization as4 signed to an agency under chapter 37 of title 5, United 

5 States Code, in addition to the restriction in the preceding 

6 sentence, such employee shall not, other than as provided 

7 by law, knowingly disclose contractor bid or proposal infor8 mation or source selection information during the three9 year period after the end of the assignment of such em10 ployee.’’.

11 SEC. 5. REPORT ON EXISTING EXCHANGE PROGRAMS. 

12 (a) EXCHANGE PROGRAM DEFINED.—For purposes of 

13 this section, the term ‘‘exchange program’’ means an execu14 tive exchange program, the program under subchapter VI 

15 of chapter 33 of title 5, United States Code, and any other 

16 program which allows for—

17 (1) the assignment of employees of the Federal 

18 Government to non-Federal employers; 

19 (2) the assignment of employees of non-Federal 

20 employers to the Federal Government; or 

21 (3) both. 

22 (b) REPORTING REQUIREMENT.—Not later than 1 year 

23 after the date of the enactment of this Act, the Office of Per24 sonnel Management shall prepare and submit to the Com25 mittee on Government Reform of the House of RepresentaVerDate 11-MAY-2000 23:12 Apr 09, 2002 Jkt 099006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR379P2.XXX pfrm09 PsN: HR379P2
27

16

1 tives and the Committee on Governmental Affairs of the 

2 Senate a report identifying all existing exchange programs. 

3 (c) SPECIFIC INFORMATION.—The report shall, for 

4 each such program, include—

5 (1) a brief description of the program, including 

6 its size, eligibility requirements, and terms or condi7 tions for participation; 

8 (2) specific citation to the law or other authority 

9 under which the program is established; 

10 (3) the names of persons to contact for more in11 formation, and how they may be reached; and 

12 (4) any other information which the Office con13 siders appropriate.

14 SEC. 6. TECHNICAL AND CONFORMING AMENDMENTS. 

15 (a) AMENDMENTS TO TITLE 5, UNITED STATES

16 CODE.—Title 5, United States Code, is amended—

17 (1) in section 3111, by adding at the end the fol18 lowing: 

19 ‘‘(d) Notwithstanding section 1342 of title 31, the head 

20 of an agency may accept voluntary service for the United 

21 States under chapter 37 of this title and regulations of the 

22 Office of Personnel Management.’’; 

23 (2) in section 4108, by striking subsection (d); 

24 and 

28

17

1 (3) in section 7353(b), by adding at the end the 

2 following: 

3 ‘‘(4) Nothing in this section precludes an employee of 

4 a private sector organization, while assigned to an agency 

5 under chapter 37, from continuing to receive pay and bene6 fits from such organization in accordance with such chap7 ter.’’. 

8 (b) OTHER AMENDMENTS.—Section 125(c)(1) of Pub9 lic Law 100–238 (5 U.S.C. 8432 note) is amended—

10 (1) in subparagraph (B), by striking ‘‘or’’ at the 

11 end; 

12 (2) in subparagraph (C), by striking ‘‘and’’ at 

13 the end and inserting ‘‘or’’; and 

14 (3) by adding at the end the following: 

15 ‘‘(D) an individual assigned from a Federal 

16 agency to a private sector organization under 

17 chapter 37 of title 5, United States Code; and’’.

29

Chairman SENSENBRENNER. Let me say that I would hope that

the Committee will deal with this bill expeditiously. It was scheduled to be on the floor today. I had a heated conversation with the

majority leader, asserting the Committee’s jurisdiction, so we got

it pulled off the floor. And we have a sequential that expires like

tonight.

So in order to make sure that we have jurisdiction and we keep

jurisdiction on other bills of this nature that will come up in the

future, we need to report the bill out today favorably, adversely, or

whatever.

And with that, I yield to the gentleman from Texas, Mr. Smith.

Mr. SMITH. Thank you, Mr. Chairman.

H.R. 3925, the ‘‘Digital Tech Corps Act of 2002’’ was referred to

this Committee because of the criminal provisions related to ethics

requirements for Federal employees. The Committee was given 1

day to report the bill, as you just mentioned. Although this referral

time is short, I hope my colleagues will support the bill.

And I will have one amendment, in a few minutes, to offer to it.

This bill provides a creative solution to a looming problem within

the Federal Government. As Chairman of the Subcommittee on

Crime, I’m particularly interested in high-tech issues related to law

enforcement and homeland security.

Just recently, the Subcommittee reported out the Cyber Security

Enhancement Act of 2002. This bill, as well as several other bills

under the Committee’s jurisdiction, are designed to improve the

Federal Government’s efforts to become more technologically advanced.

The Digital Tech Corps Act of 2002, which we are now considering, will go even further to address this effort. It will allow private sector employees detailed to Federal agencies to be deemed

Federal employees for certain purposes. As such, they must adhere

to the same ethics, revolving-door prohibitions, and accountability

provisions covering Federal employees.

We have provided the resources for law enforcement and other

Government entities to improve their technology. We have also updated the criminal laws to account for new technology. This bill

provides an incentive to promote the development of expertise and

information technology management among the Federal workforce.

The General Accounting Office has found that the Federal Government is facing a substantial shortage of high-tech workers and

that the shortage will worsen because 34 percent of the Federal

workforce will be eligible to retire in the next 5 years.

Expected retirements are even worse for the information technology fields, where the GAO estimates that 50 percent of the Government’s technological workforce are eligible to retire by 2006.

Information technology is essential to our national security, law

enforcement efforts, and the economy. This program will expose

Federal employees to more leading-edge information technology

and should also make Federal service more attractive to the private

sector employees.

I support the bill and hope my colleagues will do the same.

I yield back the balance of my time.

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Scott, do you have an opening statement?

Mr. SCOTT. Which bill is this?

30

Chairman SENSENBRENNER. This is the Digital Information

Corps. Act of 2002.

Okay, all Members will be allowed to put opening statements in

the record.

For what purpose does the gentlewoman from California seek

recognition?

Ms. LOFGREN. Mr. Chairman, I wanted to clarify for the record

an ambiguity that might exist in H.R. 3925.

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. LOFGREN. At page 8, lines 15 through 18, the bill states that

an employee of a private sector organization assigned to an agency

is deemed an employee of the agency for purposes of section 208

of title 18.

Section 208 makes it a crime for a Federal employee to take any

action in their official capacity if they have a personal financial interest in the matter or if an organization in which they are serving

as an employee has a financial interest in the matter.

I have no doubt that the authors of H.R. 3925 intended to make

detailees fully subject to this requirement. However, because the

bill considers detailees employees of the agency, there is some ambiguity over whether they will be permitted to work on matters

that have a financial impact on their private organizations.

I was planning to introduce an amendment to clarify this ambiguity, but legislative counsel has assured my staff that a fair reading of the bill and section 208 already prohibits detailees from

working on such matters. I wanted to be clear, for the record,

though, that while detailees are considered employees of the agency, subject to section 208, they are also employees of their private

organization that are prohibited from working on matters that affect the financial interests of their company.

I think we all agree that section 208 provides strong ethical protections that prevent public acts taken for private gain.

Thank you, Mr. Chairman, for allowing me to clarify that these

provisions fully apply to detailees. And I yield back the balance of

my time.

Chairman SENSENBRENNER. Are there amendments?

The gentleman from Texas, Mr. Smith.

Mr. SMITH. Mr. Chairman, I have an amendment at the desk.

Chairman SENSENBRENNER. The Clerk will report the amendment.

The CLERK. Amendment to H.R. 3925, as reported, offered by Mr.

Smith of Texas.

Mr. SMITH. Mr. Chairman, I ask unanimous consent that the

amendment be considered as read.

Chairman SENSENBRENNER. Without objection, so ordered.

[The amendment follows:]

31

1

H.L.C.

AMENDMENTS TO H.R. 3925, as Reported 

OFFERED BY MR. SMITH OF TEXAS

Page 8, lines 12-13, strike ‘‘, notwithstanding section 209 of title 18,’’.

Page 14, strike lines 4 through 6 and insert the following:

1 ‘‘(v) assigned from a private sector organi2 zation to an agency under chapter 37 of title 

3 5.’’.

Page 17, after line 7, insert the following:

4 (b) AMENDMENT TO TITLE 18, UNITED STATES

5 CODE.—Section 209 of title 18, United States Code, is 

6 amended by adding at the end the following: 

7 ‘‘(g)(1) This section does not prohibit an employee 

8 of a private sector organization, while assigned to an agen9 cy under chapter 37 of title 5, from continuing to receive 

10 pay and benefits from such organization in accordance 

11 with such chapter. 

12 ‘‘(2) For purposes of this subsection, the term ‘agen13 cy’ means an agency (as defined by section 3701 of title 

14 5) and the Office of the Chief Technology Officer of the 

15 District of Columbia.’’.

Page 17, line 8, strike ‘‘(b)’’ and insert ‘‘(c)’’.

32

Chairman SENSENBRENNER. And the gentleman is recognized for

5 minutes.

Mr. SMITH. Thank you, Mr. Chairman.

Mr. Chairman, section 3 of H.R. 3925 provides for an information

technology exchange program. Section 3704 of title 5 permits the

assignment of private sector employees to Federal Government

agencies as part of this program.

Title 18 U.S.C., paragraph 209, currently prohibits a Federal employee from receiving salary or any compensation for his or her

services as a Federal employee from any source other than the U.S.

Government.

The bill permits a private sector employer to continue to compensate its employee while that employee is detailed to the Federal

Government. Accordingly, my amendment simply moves the exception from title 5 to title 18 U.S.C. 209 and permits the private sector employer participating in the program to continue to pay the

private sector detailee’s salary and benefits.

This amendment also includes a grammatical correction to section 4 of the bill, at the recommendation of legislative counsel.

And, Mr. Chairman, I urge my colleagues to support the amendment and yield back the balance of my time.

Chairman SENSENBRENNER. The question is on the amendment

by the gentleman from Texas.

Those in favor will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it. The amendment

is agreed to.

Are there further amendments?

If not, the Chair notes the presence of a——

Mr. NADLER. Mr. Chairman, I have an amendment.

Chairman SENSENBRENNER. The clerk will report the amendment.

Mr. NADLER. Mr. Chairman, I am offering Mr. Conyers’ amendment.

Chairman SENSENBRENNER. The clerk will report the Conyers

amendment, which is not the Conyers amendment anymore.

[Laughter.]

The Conyers amendment has arrived. Now the clerk will report

the amendment.

The CLERK. Amendment to H.R. 3925, as reported, offered by Mr.

Conyers of Michigan—Mr. Nadler of Michigan—Mr. Nadler of New

York. [Laughter.]

Page 14, line——

Chairman SENSENBRENNER. Without objection, the amendment is

considered as read.

[The amendment follows:]

33

Chairman SENSENBRENNER. And the gentleman from New York

is recognized for 5 minutes.

Mr. NADLER. Thank you, Mr. Chairman.

I just want to clarify that I am offering Mr. Conyers’ amendment

not his district. [Laughter.]

Mr. Chairman, this bill gives people in the private sector shortterm contracts to supervise information technology programs and

departments in the Government. This raises an issue as to how we

can assure that their loyalty to their private firms and industry

will not come before their commitment to the public duties of the

agency that is serving the taxpayers. These detailees, who have all

kinds of access to private information that exists in the Government databases—confidential information involving individuals,

private companies, even their private industry competitors.

That is why I am offering an amendment that will protect this

information. There is no reason for trade secrets, private information, and unpublished information that is valuable to a company in

a competitive market, to be given away by the Government through

this program.

Post-employment ethics laws are not enough to prevent people

from cashing in on information when they can. This amendment

will ensure that any private sector employee who learns a trade secret in the course of Government detail will be prohibited from disclosing such secrets.

I still have concerns about private sector employees having any

access whatsoever to a competitor’s proprietary information, and

wanted to offer a broader amendment. However, I appreciate the

Chairman working with us on this narrower attempt to fix this aspect of the bill.

There’s no reason to allow such individuals to profit from confidential information and trade secrets 1 or 2 or 3 years after their

employment has terminated. If the information is a trade secret or

a nonpublic disclosure of value, someone seeking to steal that information and gain from it should be prevented from doing so at any

time.

As a result, this amendment removes the provision that would

allow sharing confidential information after 3 years. This is not in

any way a partisan issue, and I hope all or colleagues on both sides

of the aisle will support this common-sense amendment.

34

Thank you, Mr. Chairman. I yield back.

Chairman SENSENBRENNER. The gentleman from Texas, Mr.

Smith.

Mr. SMITH. Mr. Chairman, I don’t know whether to recommend

supporting or opposing this amendment. I do have a couple questions for the gentleman from New York.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SMITH. Thank you.

Mr. Chairman, let me direct my first question to Mr. Nadler, and

it is this, if I could get his attention for a minute?

I was wondering why the gentleman from New York thought it

was necessary to go beyond the 3-year limit we already have in the

bill and make it, in effect, permanent. It seems to me that under

normal procedure and under normal statutes, where usually you

cannot share privileged information for 1 year, we already

have—— Mr. NADLER. I can’t hear you. Usually what?

Mr. SMITH. I’m asking you why it’s necessary to make—— Mr. NADLER. I heard that. I didn’t hear what you said after the

word ‘‘usually.’’ Mr. SMITH. Permanent instead of just allowing the 3-year term

we have in the bill. It seems to me that we might well argue that

the amendment is too broad and unnecessarily long and in its application, where most statutes just prohibit the sharing of information for 1 year, you have a 3-year protection in the bill. And you’re

making it permanent forever.

Mr. NADLER. Will the gentleman yield?

Mr. SMITH. I’d be happy to yield.

Mr. NADLER. Thank you.

The reason for the necessity of a longer period here is that it’s

the use—it’s that the power of Government is used to obtain—could

be used to spread or obtain this information.

In other words, normally, you work for company A, you leave,

you go to company B. There’s a statute.

Mr. SMITH. Right.

Mr. NADLER. But if you work for the Federal Government, you’re

detailed to work company A, you go back to the Federal Government. While you’re at the Federal Government maybe later you go

to company B or maybe while you’re at the Federal Government

you give that information. The fact is the Federal Government is

intruding here, and that should be prohibited without a time limit.

In other words, if it weren’t for the action of Government, you

wouldn’t have that information in the first place.

Mr. SMITH. Right. But as you just pointed out, in normal statutes, you say 1-year prohibition. You’ve got a permanent; we have

a 3-year in the bill. It just seems to me that 3-year would be adequate.

Let me also ask the gentleman to consider section—— Mr. NADLER. Let me just answer that for a second?

Mr. SMITH. Okay.

Mr. NADLER. The principle is that since you learned this information in this company because of the Government action, you should

never be able to disclose it to the detriment of that company. This

isn’t simply a private employment contract.

35

Mr. SMITH. Okay. But the situation that the gentleman just—reclaiming my time, the situation that the gentleman just described,

which might also be called a conflict of interest or taking some action for financial gain, is covered by section 208 within the bill already. So I don’t know why, if that’s your concern, we wouldn’t

have already covered it?

Mr. NADLER. But for the fact—will the gentleman yield?

Mr. SMITH. Yes.

Mr. NADLER. But the for the fact that you worked in the Government agency, you would never have learned the trade secret of the

competitor. It isn’t the situation where you’re going from one company to another.

Because you work in a Government agency, you learn this trade

secret. You should never be able to take advantage of that, because

you learned it because of the Government action, because you’re a

Government employee.

In other words, the company is compelled to give this information to the Government. In a normal situation, you work for company A; in the course of that, company A willingly lets you learn

information, knowing that at some point you’re going to leave—— Mr. SMITH. Let me reclaim my time. Let me reclaim my time.

Mr. Chairman, I know that the gentleman amendment is wellmotivated, and I’ll take him at his word, and I’ll go on and support

it. But I do think it’s unnecessary, both unnecessarily broad and

unnecessary because of section 208.

But I’d recommend that we go on and approve it.

Mr. NADLER. I appreciate that.

Chairman SENSENBRENNER. The question is on the amendment

by the gentleman from New York, Mr. Nadler, a derivative of the

gentleman from Michigan, Mr. Conyers.

Those in favor will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the amendment is agreed to.

Are there further amendments?

If not, the Chair notes the presence of a reporting quorum.

Those in favor of reporting the bill favorably will say aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the bill as

amended is reported favorably.

Without objection, the bill be reported—without objection, all

Members will have 2 days in which to submit additional supplemental, dissenting, or minority views. And without objection, the

Chair will be authorized to go to conference pursuant to House

rules.

(37)

DISSENTING VIEWS

I dissent from the Committee Report on H.R. 3925. While improvements were made in the bill during the Committee’s markup

of the legislation, troubling aspects of the bill remain that fall outside of the Judiciary Committee’s jurisdiction and were, therefore,

unaddressed at markup. Primary among these concerns is the concern that, while the bill purports to enhance training for high tech

and Government workers, no training component is required by the

bill. Additional concerns are discussed herein.

The ‘‘Digital Tech Corps Act’’ would create an exchange program

for mid-level information technology workers in the Government

and private sector. The central goal of the bill is to create ‘‘crosspollenization’’ between the public and private sector information

technology workforce so that employees of each will receive specialized training unavailable with their current employers. The bill is

also designed to address purported shortage of information technology workers in the Federal Government, where half of that

workforce may retire by 2006.

BACKGROUND

On March 20, 2002, the full Judiciary Committee marked up the

bill and voted to report it favorably out of Committee by voice vote

after adopting two amendments. Rep. Jerrold Nadler (D-NY) offered an amendment on my behalf which would prevent private

workers on loan to the Government from revealing confidential information and trade secrets acquired during their Federal Government assignments. Previously, the bill allowed private sector workers to disclose such information only 3 years after leaving their

Federal assignment. The Committee also adopted an amendment

by Rep. Lamar Smith (R-TX) which protects private sector employee’s private pay and benefits during their Federal Government assignment.

Specifically, the bill allows, but does not require, that upon the

request of a private sector organization, an agency can ‘‘detail’’ one

of its employees to a private sector organization or accept the assignment of a private sector employee to the agency. An employee

who is eligible to participate in this program must work in IT management, be an exceptional employee and someone who is expected

to assume an increased managerial role in the future. For Government employees to participate, they must be career appointees, as

opposed to political appointees, as serve under a GS–11 level or

above.

Any employee of a Federal agency must agree that they will

serve in civil service after being detailed to a private sector organization for at least the length of the detail. Additionally, the bill

specifies that Federal employees will continue to receive Federal

employment benefits to the extent such benefits are not duplicative

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of those provided by the private entity and Federal employees are

covered by the Federal Tort Claims Act while on detail to the private sector.

Any employee of a private sector organization detailed to a Government agency may be paid by the private entity and is covered

by a number of the same laws as Federal employees.

Both Government and private sector employees are limited to 6

month to 1 year assignments, and thereafter may receive additional 3 month extensions up to one additional year.

Private sector employees who participate in this program are

subject to a number of ethics rules. First, such employees may not

lobby the agency to which they were detailed for 1 year after the

detail expires. Second, such employees are barred from disclosing

trade secrets discovered during the course of a detail. Third, such

employees are prohibited for 1 year from assisting an employer in

getting a contract from the agency to which they were detailed.

Fourth, such employees may not disclose bidding information discovered during the course of a detail.

CONCERNS RAISED BY H.R. 3925

I am concerned that the bill fails to require that employees participate in any training program that will assure that the central

goal of the program is met. There is no requirement that the assignment accomplish any defined training objectives. Federal employees will simply be sent upon request from the private sector,

regardless of whether that assignment meets the Government’s

needs. During the markup of this bill in the Government Reform

Committee, Rep. Henry A. Waxman (D–CA) offered an amendment

that would have established a comprehensive training program for

information technology workers, run by the Office of Personnel

Management. This amendment was defeated. If the goal of this

program is to train Government workers, then it should be run by

people with expertise in training who can keep the overall training

needs of the Government’s information technology workforce in

mind. Rep. Waxman’s amendment would have ensured this.

My second concern involves employees access to trade secrets.

While—because of the enactment of the Conyers amendment—the

bill does restrict the disclosure of trade secrets and other proprietary information uncovered by a private sector employee on detail,

I remain concerned about whether private sector employees should

have access to this information at all. It appears manifestly unfair

to give a private sector employee detailed to the Federal Government access to a competitor’s most confidential information, information the competitor gave to the Government upon assurances it

would remain confidential.

A related issue is the degree to which private sector employees

detailed to the Government should be permitted to personally participate in a decision, approval, recommendation or advisory process involving or affecting the financial interests of his or her private company. The Office of Legislative Counsel has suggested that

this is not a valid concern because these detailed employees would

be covered by existing Federal laws which prohibit involvement in

matters in which an employee has a personal financial interest. I

believe, however, that this should be made explicit in the bill.

39

My third concern is that the bill does not require that the number of employees detailed to the private sector be matched by private sector employees detailed to the agency. As such, there are

concerns that Government employees may be used to assist ailing

private sector companies. Furthermore, there are no limits on the

number of Federal employees who can be sent out to work in these

companies at taxpayer expense. The bill would also require taxpayers to pay for both private sector employees who are detailed

to the Government and Government employees who are detailed to

the private sector. The costs of private sector employee’s salary and

benefits while on assignment to the Government could be billed

back to the Federal Government as overhead on certain contracts.

The lack of safeguards in these areas raises several important

questions. At a time when the Federal Government expects to face

a shortage in the Government’s information technology workforce,

this program will allow even more of these Federal workers to

leave their current positions by sending some of them into the private sector and it is, therefore, unclear how that achieves the goal

of meeting Federal information technology needs. Some have suggested that it does not because the actual purpose of the bill is to

create a holding place of temporary jobs for under employed tech

workers whose companies have been hit by the economic downturn.

It also sends Federal employees, paid with Federal taxpayer

money, to private corporations to help those companies advance

their information technology work and profits.

Finally, I am concerned about the cost of this new program. The

Congressional Budget Office has estimated that the costs of this

program will be approximately $500,000. I believe this estimate is

very low because there is no limit on the number of Federal employees who may be on assignment to the private sector at a time,

those employees may need to be replaced by contract employees or

new hires outside of this program, and the Federal Government

may get charged for some of the private employees salaries and

benefits under Government contracts. Nonetheless, this bill does

not provide for any new authorizations, budgeting authority or tax

expenditures.

CONCLUSION

While I am pleased that this bill was improved in the Judiciary

Committee markup, I remain concerned that in a number of critical

ways, most notably a lack of training requirements, the bill is not

narrowly tailored to its stated purpose. Because the bill could further efforts of corporate espionage, expand corporate welfare, excessively burden the Federal budget, and fail to accomplish its core

goal of training Federal and private sector workers, I dissent from

this legislation.

JOHN CONYERS, JR.

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