59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–454 

OFFICIAL PERSONNEL FILE ENHANCEMENT ACT 

MARCH 16, 2016.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. CHAFFETZ, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany H.R. 4360] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 4360) to amend title 5, United States 

Code, to provide that a Federal employee who leaves Government 

service while under personnel investigation shall have a notation 

of any adverse findings under such investigation placed in such 

employee’s official personnel file, and for other purposes, having 

considered the same, report favorably thereon with amendments 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 2 

Section-by-Section .................................................................................................... 4 

Explanation of Amendments ................................................................................... 5 

Committee Consideration ........................................................................................ 5 

Roll Call Votes ......................................................................................................... 5 

Application of Law to the Legislative Branch ....................................................... 5 

Statement of Oversight Findings and Recommendations of the Committee ...... 6 

Statement of General Performance Goals and Objectives .................................... 6 

Duplication of Federal Programs ............................................................................ 6 

Disclosure of Directed Rule Makings ..................................................................... 6 

Federal Advisory Committee Act ............................................................................ 6 

Unfunded Mandate Statement ............................................................................... 6 

Earmark Identification ............................................................................................ 6 

Committee Estimate ................................................................................................ 6 

Budget Authority and Congressional Budget Office Cost Estimate .................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 7 

The amendments (stated in terms of the page and line numbers 

of the introduced bill) are as follows: 


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Page 2, line 4, strike ‘‘31’’ and insert ‘‘33’’. 

Page 2, line 9, strike ‘‘individual’’ and insert ‘‘employee’’. 

Page 2, strike lines 15 through 20 and insert the following: ‘‘with 

respect to such employee pursuant to such investigation, make a 

permanent notation in the employee’s official personnel record file. 

The head shall make such notation not later than 40 days after the 

date of the resolution of such investigation.’’. 

Page 2, strike lines 21 through 23 and insert the following (and 

redesignate the subsequent subsection accordingly): 

‘‘(b) Prior to making a permanent notation in an employee’s official personnel record file under subsection (a), the 

head of the agency shall— 

‘‘(1) notify the employee in writing within 5 days of the 

resolution of the investigation and provide such employee 

a copy of the adverse finding and any supporting documentation; 

‘‘(2) provide the employee with a reasonable time, but 

not less than 30 days, to respond in writing and to furnish 

affidavits and other documentary evidence to show why 

the adverse finding was unfounded (a summary of which 

shall be included in any notation made to the employee’s 

personnel file under subsection (d)); and 

‘‘(3) provide a written decision and the specific reasons 

therefore to the employee at the earliest practicable date. 

‘‘(c) An employee is entitled to appeal the decision of the 

head of the agency to make a permanent notation under 

subsection (a) to the Merit Systems Protection Board 

under section 7701. 

‘‘(d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the 

agency head shall make a notation in the employee’s official personnel record file indicating that an appeal disputing the notation is pending not later than 2 weeks after 

the date on which such appeal was filed. 

‘‘(2) If the head of the agency is the prevailing party on 

appeal, not later than 2 weeks after the date that the 

Board issues the appeal decision, the head of the agency 

shall remove the notation made under paragraph (1) from 

the employee’s official personnel record file. 

‘‘(3) If the employee is the prevailing party on appeal, 

not later than 2 weeks after the date that the Board issues 

the appeal decision, the head of the agency shall remove 

the notation made under paragraph (1) and the notation of 

an adverse finding made under subsection (a) from the employee’s official personnel record file.’’. 

Page 2, line 26, insert ‘‘and’’ at the end. 

Page 3, line 4, strike ‘‘; and’’ and insert a period. 

Page 3, strike lines 5 through 8. 

Page 3, line 20, strike ‘‘31’’ and insert ‘‘33’’. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

H.R. 4360, the Official Personnel File Enhancement Act, requires 

federal agencies to make a notation in a separated employee’s offiVerDate Sep 11 2014 23:10 Mar 18, 2016 Jkt 059006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR454.XXX HR454

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1 U.S. Dep’t of Commerce Office of Inspector General, Investigative Report, U.S. Patent and 

Trademark Office, Time and Attendance Abuse by Patent Examiner A (Aug. 2015) (15–0076). 2 Id, at 2. 3 Id. 4 Id, at 3. 5 Id. 

6 U.S. Dep’t of the Interior Office of Inspector General, Report of Investigation, at 1 (Nov. 26, 

2013) (PI–PI–13–0457–I). 

cial personnel file if that employee resigns in the midst of an investigation that ultimately makes an adverse finding against that employee. 

No later than 40 days after the resolution of a personnel investigation regarding a former employee resulting in an adverse finding, an agency head must make a notation in the former employee’s 

personnel file. Prior to making such notation, and within 5 days 

after the resolution of the investigation, the agency head must give 

the former employee written notice of the finding and an opportunity to respond. The former employee may appeal the agency 

head’s written decision to the Merit Systems Protection Board 

(MSPB). If the former employee prevails at the MSPB, the notation 

is removed. If the former employee loses the appeal, the notation 

remains and becomes a permanent part of the former employee’s 

personnel file. 

BACKGROUND AND NEED FOR LEGISLATION

Currently, a federal employee who is under investigation for misconduct or performance issues may resign from employment in the 

midst of an investigation and may largely escape formal discipline 

or accountability (including any notation of such issues in his or 

her official personnel file), should the investigation result in an adverse finding against the separated employee. Individuals who resign in such circumstances could then seek employment with another federal agency, which would not necessarily have knowledge 

of the adverse finding. 

For example, an August 2015 Investigative Report by the Office 

of the Inspector General (OIG) for the Department of Commerce 

concerning the United States Patent and Trademark Office 

(USPTO) detailed how employees are able to take advantage of the 

current disciplinary process.1 In this case, the OIG determined that 

a USPTO patent examiner (Examiner A) had committed at least 

730 hours of time and attendance abuse in fiscal year 2014, about 

43 percent of the hours the individual certified that year.2 This resulted in roughly $25,500 in payments for unworked time.3 As part 

of its investigation, the OIG scheduled an interview with this patent examiner.4 However, Examiner A resigned ‘‘immediately prior 

to a scheduled interview,’’ and the Inspector General report explains that, ‘‘[i]n an IM to a co-worker on the day of his resignation, Examiner A stated that the Patent Office Professional Association (POPA), the union representing patent examiners, advised 

him that he could keep his official personnel file free of any derogatory information if he resigned before the OIG interview.’’ 5

In another instance, an employee was found to have lied about 

his education credentials, falsifying university transcripts as well 

as official records that he submitted to the Department of the Interior.6 After receiving a complaint that the employee may have falsified his educational history, the OIG began investigating the alleVerDate Sep 11 2014 01:16 Mar 19, 2016 Jkt 059006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR454.XXX HR454

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7 Id, at 2. 8 Id. 

9Letter from John H. Thompson, Director, U.S. Census Bureau, to Jason Chaffetz, Chairman, 

H. Comm. on Oversight & Gov’t Reform (July 14, 2015). 

gation.7 The individual subsequently admitted to falsifying the information and resigned before the conclusion of the investigation.8

After his resignation, the individual applied to and was hired by 

the Census Bureau.9

While circumstances such as these are rare, it is important to 

close loopholes that allow individuals to take advantage of the federal government’s highly structured investigatory and disciplinary 

process to escape responsibility for their actions. To correct this 

problem, H.R. 4360 requires that a notation be made in an employee’s official personnel file if the employee resigns while under investigation and the investigation subsequently results in an adverse finding against the employee. This will help ensure that 

other agencies will be aware of the finding should the employee 

apply for federal employment at a later time. Importantly, H.R. 

4360 provides separated employees the opportunity to respond to 

an investigation’s findings before the agency head makes a final determination on the adverse finding. Further, the bill also affords 

appeal rights to a separated employee to guard against any unfair 

or inaccurate notation in the former employee’s personnel file. 

LEGISLATIVE HISTORY

H.R. 4360, the Official Personnel File Enhancement Act, was introduced by Rep. Jason Chaffetz (R–UT) on January 11, 2016, and 

referred to the Committee on Oversight and Government Reform. 

On January 12, 2016, the Committee on Oversight and Government Reform ordered H.R. 4360 favorably reported, as amended by 

an amendment offered by Congressman Gerald Connolly (D–VA). 

SECTION-BY-SECTION

Section 1. Short title 

Designates the short title of the bill as the ‘‘Official Personnel 

File Enhancement Act’’. 

Section 2. Record of Investigation of Personnel Action in Separated 

Employee’s Personnel File 

Amends title 5, United States Code, to require the head of an 

agency to make a permanent notation in an individual’s personnel 

file if that individual, as a member of the competitive or excepted 

service, resigns from government employment while the subject of 

a personnel investigation, and an adverse finding against the individual is ultimately made as a result of the investigation. The notation must be made within 14 days of the finding. 

A personnel investigation includes an Inspector General investigation, an adverse personnel action, and any other type of investigation relating to poor performance or misconduct. 

This amendment will apply to all members of the competitive 

service and excepted service who leave the service after the date 

of enactment of this Act. 


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Section 3. Review of Official Personnel File of Former Federal Employees before Rehiring 

Further amends title 5 to require agencies to review and consider 

the information within the official personnel record file of any 

former federal government employee who is a candidate for a position with that agency within the competitive or excepted service. 

Defines ‘‘former Government employee’’ as an individual whose 

most recent government position was within the competitive or excepted service, prior to becoming a candidate. 

This amendment will apply to any former government employee 

appointed or reinstated on or after the date that is 180 days after 

enactment of this Act. 

EXPLANATION OF AMENDMENTS

During Full Committee consideration of the bill, Congressman 

Gerald Connolly (D–VA) offered an amendment to give a separated 

employee an opportunity to respond to adverse findings as a result 

of an investigation. 

Under the amendment, the agency head is provided 40 days to 

make a determination to include a notation within the separated 

employee’s personnel file. During this time, the agency head must 

provide the former employee written notice of the finding and 30 

days to respond. If the agency upholds an adverse finding, the separated employee may appeal the decision to the MSPB and a notation is made of the finding in the employee’s official personnel file. 

Should the individual choose to appeal to MSPB, a notation of the 

appeal will be made in his/her file. If the individual wins the appeal, the notation regarding the adverse finding and subsequent 

appeal will be removed from the file. If the individual loses the appeal, only the notation regarding the appeal will be removed from 

the file. 

The amendment offered by Rep. Connolly was adopted by voice 

vote. 

COMMITTEE CONSIDERATION

On January 12, 2016, the Committee met in open session and ordered reported favorably the bill, H.R. 4360, as amended, by voice 

vote, a quorum being present. 

ROLL CALL VOTES

No roll call votes were requested or conducted during Full Committee consideration of H.R. 4360. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill amends title 5, United 

States Code, to provide that a Federal employee who leaves Government service while under personnel investigation shall have a 

notation of any adverse findings under such investigation placed in 

such employee’s official personnel file. As such, it does not relate 

to employment or access to public services and accommodations. 


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STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goal or objective of the bill is to provide that a Federal employee who leaves 

Government service while under personnel investigation shall have 

a notation of any adverse findings under such investigation placed 

in such employee’s official personnel file. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of this bill establishes or reauthorizes a program of 

the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting this bill does not direct 

the completion of any specific rule makings within the meaning of 

5 U.S.C. 551. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

This bill does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out this bill. 

However, clause 3(d)(2)(B) of that rule provides that this requirement does not apply when the Committee has included in its report 


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a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has received the following cost estimate for 

this bill from the Director of Congressional Budget Office: 

H.R. 4360—Official Personnel File Enhancement Act 

H.R. 4360 would require federal agencies to include any findings 

of a government investigation of misconduct in an employee’s personnel file. The legislation specifically applies to employees who 

leave government service before such an investigation is completed. 

Under current law, such investigations end once an employee 

leaves federal service. Based on information from the Merit System 

Protection Board and human resource professionals, CBO expects 

that completing all misconduct investigations and updating personnel files as required under H.R. 4360 would lead to a small increase in administrative costs at federal agencies. Based on information from federal agencies, CBO expects that most costs to conduct investigations of employee misconduct are usually incurred before such employees leave federal service. Based on prior experience and information from federal agencies, CBO also expects that 

very few former employees would appeal the findings of their completed investigations under H.R. 4360. Thus, CBO estimates that 

any additional administrative costs to the federal government to 

implement H.R. 4360 would not be significant. 

Enacting H.R. 4360 could affect direct spending by some agencies 

(such as the Tennessee Valley Authority) because they are authorized to use receipts from the sale of goods, fees, and other collections to cover their operating costs; therefore, pay-as-you-go procedures apply. Because most of those agencies can cover additional 

costs by making adjustments to the amounts collected, CBO estimates that any net changes in direct spending by those agencies 

would be negligible. Enacting the bill would not affect revenues. 

CBO estimates that enacting H.R. 4360 would not increase direct 

spending or on-budget deficits in any of the four consecutive 10- 

year periods beginning in 2027. 

H.R. 4360 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

House of Representatives, changes in existing law made by the bill, 


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as reported, are shown as follows (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 

* * * * * * * 

SUBPART B—EMPLOYMENT AND RETENTION 

* * * * * * * 

CHAPTER 33—EXAMINATION, SELECTION, AND 

PLACEMENT 

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND APPOINTMENT 

Sec. 

3301. Civil service; generally. 

* * * * * * * 

3322. Voluntary separation before resolution of personnel investigation. 

* * * * * * * 

3330e. Review of official personnel file of former Federal employees before rehiring. 

* * * * * * * 

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND 

APPOINTMENT 

* * * * * * * 

§ 3322. Voluntary separation before resolution of personnel 

investigation 

(a) With respect to any employee occupying a position in the competitive service or the excepted service who is the subject of a personnel investigation and resigns from Government employment 

prior to the resolution of such investigation, the head of the agency 

from which such employee so resigns shall, if an adverse finding 

was made with respect to such employee pursuant to such investigation, make a permanent notation in the employee’s official personnel 

record file. The head shall make such notation not later than 40 

days after the date of the resolution of such investigation. 

(b) Prior to making a permanent notation in an employee’s official 

personnel record file under subsection (a), the head of the agency 

shall— 

(1) notify the employee in writing within 5 days of the resolution of the investigation and provide such employee a copy of 

the adverse finding and any supporting documentation; 

(2) provide the employee with a reasonable time, but not less 

than 30 days, to respond in writing and to furnish affidavits 

and other documentary evidence to show why the adverse finding was unfounded (a summary of which shall be included in 

any notation made to the employee’s personnel file under subsection (d)); and 


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(3) provide a written decision and the specific reasons therefore to the employee at the earliest practicable date. 

(c) An employee is entitled to appeal the decision of the head of 

the agency to make a permanent notation under subsection (a) to the 

Merit Systems Protection Board under section 7701. 

(d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall 

make a notation in the employee’s official personnel record file indicating that an appeal disputing the notation is pending not later 

than 2 weeks after the date on which such appeal was filed. 

(2) If the head of the agency is the prevailing party on appeal, not 

later than 2 weeks after the date that the Board issues the appeal 

decision, the head of the agency shall remove the notation made 

under paragraph (1) from the employee’s official personnel record 

file. 

(3) If the employee is the prevailing party on appeal, not later 

than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under 

paragraph (1) and the notation of an adverse finding made under 

subsection (a) from the employee’s official personnel record file. 

(e) In this section, the term ‘‘personnel investigation’’ includes— 

(1) an investigation by an Inspector General; and 

(2) an adverse personnel action as a result of performance, 

misconduct, or for such cause as will promote the efficiency of 

the service under chapter 43 or chapter 75. 

* * * * * * * 

§ 3330e. Review of official personnel file of former Federal 

employees before rehiring 

(a) If a former Government employee is a candidate for a position 

within the competitive service or the excepted service, prior to making any determination with respect to the appointment or reinstatement of such employee to such position, the appointing authority 

shall review and consider the information relating to such employee’s former period or periods of service in such employee’s official 

personnel record file. 

(b) In subsection (a), the term ‘‘former Government employee’’ 

means an individual whose most recent position with the Government prior to becoming a candidate as described under subsection 

(a) was within the competitive service or the excepted service. 

(c) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this section. 

* * * * * * * 

Æ 


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