U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 115TH CONGRESS

2d Session 

REPORT

2018

115–387 

Calendar No. 673 

POLITICAL APPOINTEE BURROWING 

PREVENTION ACT 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

H.R. 1132 

TO AMEND TITLE 5, UNITED STATES CODE, TO PROVIDE 

FOR A 2-YEAR PROHIBITION ON EMPLOYMENT IN A CAREER 

CIVIL SERVICE POSITION FOR ANY FORMER POLITICAL 

APPOINTEE, AND FOR OTHER PURPOSES 

NOVEMBER 26, 2018.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

COURTNEY J. ALLEN, Deputy Chief Counsel for Governmental Affairs 

MARGARET E. DAUM, Minority Staff Director 

CHARLES A. MOSKOWITZ, Minority Senior Legislative Counsel 

THOMAS J.R. RICHARDS, Minority Professional Staff Member 

LAURA W. KILBRIDE, Chief Clerk 

Calendar No. 673 

115TH CONGRESS REPORT " ! SENATE 2d Session 115–387 

POLITICAL APPOINTEE BURROWING PREVENTION ACT 

NOVEMBER 26, 2018.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany H.R. 1132] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (H.R. 1132) to amend title 5, United 

States Code, to provide for a 2-year prohibition on employment in 

a career civil service position for any former political appointee, 

and for other purposes, having considered the same, reports favorably thereon with an amendment (in the nature of a substitute) 

and an amendment to the title and recommends that the bill, as 

amended, do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

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

III. Legislative History ......................................................................................... 3 

IV. Section-by-Section Analysis .......................................................................... 4 

V. Evaluation of Regulatory Impact .................................................................. 5 

VI. Congressional Budget Office Cost Estimate ................................................ 5 

VII. Changes in Existing Law Made by the Act, as Reported ........................... 6 

I. PURPOSE AND SUMMARY

The purpose of H.R. 1132 is to ensure the hiring process for the 

Federal workforce is free from political influence. This Act requires 

the Office of Personnel Management (OPM) to review requests for 

a current or former political appointee to convert to a career appointment in the civil service and determine whether or not the 

conversion to a career position is free from political influence. This 

2 

1S. Comm. on Homeland Sec. & Governmental Affairs, U.S. Gov’t Policy and Supporting Positions, S. Prt. 114–26, iii (Dec. 1, 2016). 2See 5 U.S.C. 3301–30e. See also 5 C.F.R. 2.1. 3 5 U.S.C. 3321. See also 5 C.F.R. 2.4. 4S. Comm. on Homeland Sec. & Governmental Affairs, supra note 1 at 216. 5Gov’t Accountability Off., GAO–10–688, Personnel Practices: Conversions of Employees from 

Political to Career Positions May 2005–May 2009 1 (June 28, 2010). 6 Id. at 11. 7 Id. 

8Gov’t Accountability Off., GAO–16–859, Office of Personnel Management: Actions Are Needed to Help Ensure the Completeness of Political Conversion Data and Adherence to Policy 1 

(Sept. 30, 2016). 9 5 C.F.R. 5.2. 

10Memorandum from John Berry, Director, Off. of Personnel Mgmt., to Heads of Executive 

Departments and Agencies, Political Appointees and Career Civil Service Positions (Nov. 5, 

2009). 11 Id. 

Act would also make any political appointee who converts to a career position subject to a two-year probationary period. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

Presidential administrations have the authority to hire individuals outside of the competitive service for political positions that 

‘‘may involve advocacy of Administration policies and programs and 

the incumbents usually have a close and confidential working relationship with the agency head or other key officials.’’ 1 This hiring 

authority allows an administration to hire individuals without following the required procedures for announcing position openings, 

receiving applications for the position, and assessing and selecting 

applicants.2 Such political positions are also not required to complete a one-year probationary period before the appointment is 

complete, unlike a career appointment in the competitive service.3

In December 2016, there were 8,358 noncompetitive, political appointments in the Federal Government.4 Political appointments 

generally expire at the end of an Administration.5 However, some 

political appointees seek a career appointment in the competitive 

service, also known as political conversions.6

The Government Accountability Office (GAO) stated, ‘‘the ability 

to convert political employees to career positions is an appropriate 

and valuable means of achieving a highly skilled workforce.’’ 7 GAO 

also noted: 

[T]hese conversions must conform to the merit system 

principles requiring that employees be selected solely on 

the basis of merit. Sometimes, circumstances surrounding 

conversions can raise questions as to whether the individuals selected experienced favoritism or enjoyed an unfair 

advantage in the merit system selection process, even the 

appearance of which could adversely compromise the integrity of the system.8

OPM is responsible for ensuring that political conversions adhere 

to the merit system principles.9 Before 2010, OPM required agencies to first seek OPM approval before hiring a political appointee 

to a career position in the competitive service during a presidential 

election year.10 OPM expanded this approval requirement to apply 

for political conversions at any time and at career competitive service and career excepted service positions.11 The Edward ‘‘Ted’’ 

Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015 requires OPM to report annually to Congress on 

3 

12The Edward ‘‘Ted’’ Kaufman and Michael Leavitt Presidential Transitions Improvements 

Act of 2015, Pub. L. No. 114–36, 4, 130 Stat. 301, 305–307 (Mar. 18, 2016). 13 Id. 14Gov’t Accountability Off., supra note 8 at 9. 15Letter from Dr. Jeff Pon, Director, Off. of Personnel Mgmt., to Senator Ron Johnson, Chairman, S. Comm. on Homeland Sec. and Governmental Affairs (Apr. 4, 2018). 16 Id. 

political conversion requests.12 During the last year of a President’s 

term, OPM must submit these reports to Congress on a quarterly 

basis.13

There is no statutory or regulatory requirement for agencies to 

obtain OPM approval before selecting a political appointee to a career position. In 2016, GAO found that 17 political appointees in 

8 different agencies were converted to a career position without 

OPM approval.14 From December 2016 through December 2017, 

OPM received 27 political conversion requests, 6 of which were sent 

after the agency hired the political appointee to the career position.15 Of the 27 requests, OPM denied 8—or approximately 25 percent—of the requests, finding it was unable to ‘‘conclude the appointment was free of political influence and complied with merit 

system principles and applicable civil service laws and regulations.’’ 16

H.R. 1132, as amended by the Committee, would ensure that political conversions adhere to the merit system principles and are 

free from political influence by requiring agencies to submit political conversion requests to OPM for approval before selecting a political appointee for a career position in the Federal service. This 

Act would require reporting to Congress on each political conversion request, and would also require a two-year probationary period 

for any political appointee who converts to a career appointment if 

such appointment would be the political appointee’s first career position in the Federal civil service. 

III. LEGISLATIVE HISTORY

H.R. 1132 was introduced on February 16, 2017, by Representatives Ken Buck (R–CO–4), Ted Lieu (D–CA–33) and Jared Polis 

(D–CO–2). Representative Pete Session (R–TX–32) was added as a 

co-sponsor to the Act on February 28, 2017. The Act as amended 

was passed by the House of Representatives on March 6, 2018, by 

voice vote. The Act was received in the Senate and referred to the 

Committee on Homeland Security and Governmental Affairs on 

March 7, 2018. 

The Committee considered H.R. 1132 at a business meeting on 

September 26, 2018. Chairman Ron Johnson offered an amendment 

that clarifies the determinations that the OPM Director must make 

under this Act, eliminates the two-year ban on career appointments 

for political appointees, and instead subjects employees who receive 

a political conversion to a two-year probationary period. Chairman 

Johnson also offered an amendment to change the title of the Act. 

The amendments were adopted favorably by voice vote. The amendments and the legislation, as amended, were passed by voice vote 

en bloc with Senators Johnson, Portman, Lankford, Enzi, Hoeven, 

McCaskill, Carper, Heitkamp, Peters, Hassan, Harris, and Jones 

present. 

4 

Consistent with Committee Rule 11, the Committee reports the 

Act with a technical amendment by mutual agreement of the 

Chairman and Ranking Member. 

IV. SECTION-BY-SECTION ANALYSIS OF THE ACT, AS REPORTED

Section 1. Short title 

This section establishes the short title of the Act as the ‘‘Political 

Appointee Burrowing Prevention Act.’’ 

Section 2. Limitation on employment of political appointees in career civil service positions 

Subsection (a) establishes a review and approval process and additional requirements for political conversions. A current or former 

political appointee will be prohibited from converting to a career 

position in the Federal service without prior written approval from 

OPM. To receive approval, an agency head must submit a request 

for the political conversion to OPM that includes a certification 

that the career position would not carry out the same or similar responsibilities as that of a political position, that the political appointee was selected for the career position based on merit after a 

fair and open job competition, and that the hiring process and selection was free from political considerations or influence. OPM will 

review each political conversion request and make a favorable or 

unfavorable determination for the request. If OPM makes an unfavorable determination, the conversion request must be denied. 

Under this subsection, OPM is required to notify Congress of the 

approval of any political conversion request, as well as the rationale of the certification by the agency head. This subsection also requires an individual approved for a political conversion to complete 

a two-year probationary period before the appointment to the career position becomes final. Political appointees who completed a 

probationary period for a career position prior to their political position are exempt from this two-year probationary period, as well 

as any political appointees whose job responsibilities did not involve political activities. 

This subsection also defines, for the purposes of this Act, the 

terms ‘‘agency,’’ ‘‘Associate Director,’’ ‘‘career position,’’ ‘‘covered individual,’’ ‘‘participated,’’ ‘‘particular matter,’’ ‘‘political appointee,’’ 

and ‘‘political position.’’ 

Subsection (b) amends the table of sections for the subchapter to 

add the section created under subsection (a). 

Subsection (c) applies the review and approval procedures and 

probationary period established under subsection (a) to any political conversion or request for conversion that occurs after the date 

of enactment of this Act. Any political appointee who leaves Federal service after the date of enactment of this Act will also be subject to the requirements established in this Act. 

Subsection (d) requires OPM, in consultation with the Office of 

Special Counsel (OSC), to issue regulations to carry out the requirements of this Act. These regulations must also include guidance on the definition for the term ‘‘personally and substantially 

participated in a particular policy-making activity or similar matter.’’ 

5 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this Act and determined that the Act will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the Act contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, October 24, 2018. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1132, the Political Appointee Burrowing Prevention Act. 

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

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

Sincerely, 

KEITH HALL, 

Director. 

Enclosure. 

H.R. 1132—Political Appointee Burrowing Prevention Act 

H.R. 1132 would amend federal law regarding the hiring of 

former political appointees, as that term is defined in the act. In 

general, H.R. 1132 would expand and build upon the Office of Personnel Management’s (OPM’s) current policies and practices regarding the hiring of political appointees, though CBO expects the 

legislation would make some changes to OPM’s processes. Specifically, the act would bar political appointees from holding civil service positions for two years unless certain criteria were met. Using 

information from OPM, CBO estimates that the cost of implementing H.R. 1132 would not be significant because it would not 

significantly change the government’s current employment procedures. 

Enacting H.R. 1132 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

CBO estimates that enacting H.R. 1132 would not increase net 

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

10-year periods beginning in 2029. 

H.R. 1132 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

On November 20, 2017, CBO transmitted a cost estimate for H.R. 

1132 as ordered reported by the House Committee on Oversight 

and Government Reform on November 2, 2017. The two versions of 

H.R. 1132 address former political appointees working for the government, but some provisions differ. CBO’s estimated cost of implementing either version is the same. 

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

estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

6 

VII. CHANGES IN EXISTING LAW MADE BY THE ACT, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the Act, as 

reported, are shown as follows: (existing law proposed to be omitted 

is enclosed in brackets, new matter is printed in italic, and existing 

law in which no change is proposed is shown in roman): 

UNITED STATES CODE 

* * * * * * * 

TITLE 5—GOVERNMENT ORGANIZATION AND 

EMPLOYEES 

* * * * * * * 

PART I—EMPLOYEES 

* * * * * * * 

SUBPART B—EMPLOYMENT AND RETENTION 

* * * * * * * 

CHAPTER 31—AUTHORITY FOR EMPLOYMENT 

* * * * * * * 

Subchapter I—Employment Authorities 

* * * * * * * 

Table of Sections. 

Sec. 3101 General Authority to employ. 

* * * * * * * 

Sec. 3117. Employment of political appointees. 

* * * * * * * 

SEC. 3117. EMPLOYMENT OF POLITICAL APPOINTEES. 

(a) APPOINTMENT APPROVAL REQUIRED.— 

(1) IN GENERAL.—The head of an agency may not appoint a 

covered individual to a career position within the agency without receiving prior written approval from the Associate Director, 

consistent with the requirements of this subsection. 

(2) REQUEST.—If the head of an agency wishes to appoint a 

covered individual to a career position, the head of the agency 

shall submit a request to the Associate Director to approve the 

appointment, which shall include a certification by the head of 

the agency to the Associate Director that— 

(A) the career position would not involve confidential, 

policy-determining, policy-making, or policy-advocating responsibilities (unless the career position is in the Senior Executive Service); 

(B) the appointment process was based on merit after a 

fair and open competition; and 

(C) the appointment process did not give any preference 

or special advantage to the covered individual based on a 

7 

prior political appointment, political influence, or political 

affiliation. 

(3) REVIEW AND DETERMINATION.— (A) IN GENERAL.—The Associate Director shall— 

(i) review each request received pursuant to paragraph (2); and 

(ii) make a favorable or unfavorable determination 

whether, with respect to the request, the position classification and qualifications requirements and the appointment process were fair, open, and free from political influence. 

(B) APPROVAL.—If the Associate Director makes a favorable determination under subparagraph (A)(ii), the Associate Director may approve the request. 

(C) DENIAL.—If the Associate Director makes an unfavorable determination under subparagraph (A)(ii), the Associate Director shall deny the request. 

(4) NOTIFICATION TO CONGRESS.—With respect to any request 

approved under paragraph (3), the Associate Director shall, not 

later than 5 days before the date the Associate Director provides 

the approval to the head of the requesting agency, submit to the 

Committee on Oversight and Government Reform of the House 

of Representatives and the Committee on Homeland Security 

and Governmental Affairs of the Senate the certification under 

paragraph (2) relating to the request and the rationale of the 

head of the agency for the certification. 

(b) PROBATIONARY PERIOD.— (1) IN GENERAL.—A covered individual shall complete a 2- 

year period of probation before an appointment to a career position in the competitive service approved under subsection (a) becomes final. 

(2) EXCEPTION.—Paragraph (1) shall not apply to— 

(A) a political appointee who has not personally and substantially participated in any particular policy-making activity or similar matter while employed in a political position; or 

(B) a political appointee who has previously held a career 

position in the competitive service and successfully completed a probationary period for that position under section 

3321. 

(c) APPLICATION.—Nothing in this section shall be construed to restrict the appointment of an individual who is— 

(1) entitled to reinstatement under section 3593(b); or 

(2) eligible for reinstatement under section 3593(a). 

(d) DEFINITIONS.—In this section— 

(1) the term ‘‘agency’’ has the meaning given the term ‘‘Executive agency’’ in section 105; 

(2) the term ‘‘Associate Director’’ means— 

(A) the Associate Director of Merit Systems Accountability 

and Compliance of the Office of Personnel Management; or 

(B) if the Associate Director described in subparagraph 

(A) is not responsible for carrying out the authorities under 

section 1104(b)(2), the Associate Director of the Office of 

Personnel Management responsible for carrying out such 

authorities; 

8 

(3) the term ‘‘career position’’ means— 

(A) a position in the competitive service filled by a career 

or career-conditional appointment; 

(B) a position in the excepted service filled by an appointment of equivalent tenure as a position described in subparagraph (A); 

(C) a career reserved position, as defined in paragraph 

(8) of section 3132(a), in the Senior Executive Service; or 

(D) a general position in the Senior Executive Service 

filled by a career appointee, as defined in section 

3132(a)(4); 

(4) the term ‘‘covered individual’’ means— 

(A) a political appointee; 

(B) a former political appointee who held any political 

position during the 5-year period before the date of the request described in subsection (a)(2); or 

(C) at the discretion of the Director of the Office of Personnel Management, a former political appointee who held 

any political position before the 5-year period described in 

subparagraph (B); 

(5) the term ‘‘participated’’ means an action taken as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other 

such action; 

(6) the term ‘‘particular matter’’ includes any investigation, 

application, request for a ruling or determination, rulemaking, 

contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding; 

(7) the term ‘‘political appointee’’ means an individual serving 

in an appointment of any duration to a political position; and 

(8) the term ‘‘political position’’ means— 

(A) a position with respect to which appointment is 

made— 

(i) by the President; or 

(ii) by the President, by and with the advice and consent of the Senate; 

(B) a position which has been excepted from the competitive service by reason of its confidential, policy-determining, 

policy-making, or policy-advocating character; 

(C) a position described under sections 5312 through 

5316 (relating to the Executive Schedule); or 

(D) a general position in the Senior Executive Service 

filled by— 

(i) a noncareer appointee, as defined in paragraph 

(7) of section 3132(a); or 

(ii) a limited term appointee, as defined in paragraphs (5) and (6) of section 3132(a), who is serving 

under a political appointment. 

Æ