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[Senate Report 115-387]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 673
115th Congress      }                         {                Report
                                 SENATE
 2d Session         }                         {                115-387
_______________________________________________________________________

                                     

              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
                   
                   
                   
                   
                   

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               November 26, 2018.--Ordered to be printed
                                    ______

                      U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                      WASHINGTON : 2018

              
         	COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                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 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\
---------------------------------------------------------------------------
    \1\S. Comm. on Homeland Sec. & Governmental Affairs, U.S. Gov't 
Policy and Supporting Positions, S. Prt. 114-26, iii (Dec. 1, 2016).
    \2\See 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\S. Comm. on Homeland Sec. & Governmental Affairs, supra note 1 
at 216.
    \5\Gov'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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \7\Id.

        [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\
---------------------------------------------------------------------------
    \8\Gov'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).

    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 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\
---------------------------------------------------------------------------
    \9\5 C.F.R. 5.2.
    \10\Memorandum 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.
    \12\The 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\Gov't Accountability Off., supra note 8 at 9.
    \15\Letter 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.
---------------------------------------------------------------------------
    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.
    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.''

                   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.

       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 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;
          (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.

                                  [all]
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