I 114th CONGRESS 2d Session H. R. 4358 IN THE HOUSE OF REPRESENTATIVES January 8, 2016 Mr. Walberg introduced the following bill; which was referred to the Committee on Oversight and Government Reform A BILL To amend title 5, United States Code, to enhance accountability within the Senior Executive Service, and for other purposes.

1. Short title This Act may be cited as the Senior Executive Service Accountability Act . 2. Biennial justification of Senior Executive Service positions Section 3133(a)(2) of title 5, United States Code, is amended by inserting after positions the following: , with a justification for each position (by title and organizational location) and the specific result expected from each position, including the impact of such result on the agency mission, . 3. Extension of probationary period for career appointees (a) In general Section 3393(d) of title 5, United States Code, is amended by striking 1-year and inserting 2-year . (b) Conforming amendment Section 3592(a)(1) of such title is amended by striking 1-year and inserting 2-year . 4. Modification of pay retention for career appointees removed for under performance Section 3594(c)(1)(B) of title 5, United States Code, is amended to read as follows: (B) (i) any career appointee placed under subsection (a) or (b)(2) of this section shall be entitled to receive basic pay at the highest of— (I) the rate of basic pay in effect for the position in which placed; (II) the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service immediately before being appointed to the Senior Executive Service; or (III) the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this section; and (ii) any career appointee placed under subsection (b)(1) of this section shall be entitled to receive basic pay at the rate of basic pay in effect for the position in which placed; and . 5. Advanced establishment of performance requirements under Senior Executive Service performance appraisal systems Section 4312(b)(1) of title 5, United States Code, is amended— (1) by striking on or and inserting not later than 30 calendar days ; and (2) by inserting in writing after communicated . 6. Amendments with respect to adverse actions against career appointees (a) Suspension for 14 days or less for senior executive service employee Paragraph (1) of Section 7501 of title 5, United States Code, is amended to read as follows: (1) employee means— (A) an individual in the competitive service who is not serving a probationary period or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; or (B) a career appointee in the Senior Executive Service who— (i) has completed the probationary period prescribed under section 3393(d); or (ii) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service; and . (b) Modification of cause and procedure for suspension and termination (1) In general Section 7543 of title 5, United States Code, is amended— (A) in subsection (a), by striking misconduct, and inserting such cause as would promote the efficiency of the service, misconduct, ; and (B) in subsection (b)(1), by striking 30 and inserting 15 . (2) Conforming amendments Subchapter V of chapter 35 of title 5, United States Code, is amended— (A) in section 3593— (i) in subsection (a)(2), by striking misconduct, and inserting such cause as would promote the efficiency of the service, misconduct, ; and (ii) in subsection (b), by striking misconduct, and inserting such cause as would promote the efficiency of the service, misconduct, ; and (B) in section 3594(a), by striking misconduct, and inserting such cause as would promote the efficiency of the service, misconduct, . 7. Mandatory leave for career appointees subject to removal (a) In general Subchapter II of chapter 63 of title 5, United States Code, is amended by adding at the end the following: 6330. Mandatory leave for Senior Executive Service career appointees subject to removal (a) In this section— (1) the term employee means an employee (as that term is defined in section 7541(1)) who has received written notice of removal from the civil service under subchapter V of chapter 75; and (2) the term mandatory leave means, with respect to an employee, an absence with pay but without duty during which such employee— (A) shall be charged accrued annual leave for the period of such absence; and (B) may not accrue any annual leave under section 6303 for the period of such absence. (b) Under regulations prescribed by the Office of Personnel Management, an agency may place an employee on mandatory leave for misconduct, neglect of duty, malfeasance, or such cause as would promote the efficiency of the service. (c) If an agency determines that an employee should be placed on mandatory leave under subsection (b), such leave shall begin no earlier than the date on which the employee received written notice of a removal under subchapter V of chapter 75. (d) If a final order or decision is issued in favor of such employee with respect to removal under subchapter V of chapter 75 by the agency, the Merit Systems Protection Board, or the United States Court of Appeals for the Federal Circuit, any annual leave that is charged to an employee by operation of this section shall be restored to the applicable leave account of such employee. . (b) Clerical amendment The table of sections of chapter 63 of title 5, United States Code, is amended by adding after the item relating to section 6328 the following new item: 6330. Mandatory leave for Senior Executive Service career appointees subject to removal. . (c) Regulations Not later than 6 months after the date of enactment of this Act, the Director of the Office of Personnel Management shall prescribe regulations with respect to the leave provided by the amendment in subsection (a). 8. Expedited removal of career appointees for performance or misconduct (a) In general Chapter 75 of title 5, United States Code, is amended by adding at the end the following: VI Senior Executive Service: Expedited Removal 7551. Definitions In this subchapter— (1) the term employee has the meaning given such term in section 7541(1), but does not include any career appointee in the Senior Executive Service within the Department of Veterans Affairs; and (2) the term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. 7552. Actions covered This subchapter applies to a removal from the civil service or a transfer from the Senior Executive Service, but does not apply to an action initiated under section 1215, to a removal under section 3592 or 3595, to a suspension under section 7503, to a suspension or removal under section 7532, to a suspension or removal under section 7542, or to a suspension or removal under section 713 of title 38. 7553. Cause and procedure (a) (1) Under regulations prescribed by the Office of Personnel Management, the head of an agency may remove an employee of the agency from the Senior Executive Service if the head determines that the performance or misconduct of the individual warrants such removal. If the head so removes such an individual, the head may— (A) remove the individual from the civil service; or (B) in the case of an employee described in paragraph (2), transfer the employee from the Senior Executive Service to a General Schedule position at any grade of the General Schedule for which the employee is qualified and that the head determines is appropriate. (2) An employee described in this paragraph is an individual who— (A) previously occupied a permanent position within the competitive service; (B) previously occupied a permanent position within the excepted service; or (C) prior to employment as a career appointee at the agency, did not occupy any position within the Federal Government. (3) An employee against whom an action is proposed under paragraph (1) is entitled to 5 days’ advance written notice. (b) (1) Notwithstanding any other provision of law, including section 3594, any employee transferred to a General Schedule position under subsection (a)(1)(B) shall, beginning on the date of such transfer, receive the annual rate of pay applicable to such position. (2) An employee so transferred may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an employee so transferred does not report for duty, such employee shall not receive pay or other benefits pursuant to section 7554(e). (c) Not later than 30 days after removing or transferring an employee under subsection (a), the applicable head of the agency shall submit to Congress notice in writing of such removal or transfer and the reason for such removal or transfer. (d) Section 3592(b)(1) does not apply to an action to remove or transfer an employee under this section. (e) Subject to the requirements of section 7554, an employee may appeal a removal or transfer under subsection (a) to the Merit Systems Protection Board under section 7701, but only if such appeal is made not later than seven days after the date of such removal or transfer. 7554. Expedited review of appeal (a) Upon receipt of an appeal under section 7553(d), the Merit Systems Protection Board shall refer such appeal to an administrative judge pursuant to section 7701(b)(1). The administrative judge shall— (1) expedite any such appeal under such section; and (2) in any such case, issue a decision not later than 21 days after the date of the appeal. (b) Notwithstanding any other provision of law, including section 7703, the decision of an administrative judge under subsection (a) shall be final and shall not be subject to any further appeal. (c) In any case in which the administrative judge cannot issue a decision in accordance with the 21-day requirement under subsection (a)(2), the removal or transfer is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or transfer is final, submit to Congress a report that explains the reasons why a decision was not issued in accordance with such requirement. (d) The Merit Systems Protection Board or administrative judge may not stay any removal or transfer under this section. (e) During the period beginning on the date on which an employee appeals a removal from the civil service under section 7553(d) and ending on the date that the administrative judge issues a final decision on such appeal, such employee may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits. . (b) Application (1) In general Subchapter VI of chapter 75 of title 5, United States Code, as added by subsection (a), shall not apply to any personnel action against a career appointee (as that term is defined in section 3132(a)(4) of title 5, United States Code) that was commenced before the date of enactment of this Act. (2) Relation to other authorities The authority provided by such subchapter is in addition to the authority provided under section 3592 or subchapter V of chapter 75 of title 5, United States Code. (c) Technical amendments (1) Title 5 Title 5, United States Code, is amended— (A) in section 3592(b)(2)— (i) by striking or at the end of subparagraph (A); (ii) by striking the period at the end of subparagraph (B) and inserting ; or ; and (iii) by adding at the end the following: (C) any removal under subchapter VI of this title or section 713 of title 38. ; (B) in section 3393(g), by striking or 7543 of this title and inserting , 7543, or 7553 of this title or section 713 of title 38 ; and (C) in section 7542, by striking or to a removal under section 3592 or 3595 of this title and inserting to a removal under section 3592 or 3595 of this title, to a suspension under section 7503, to a removal or transfer under section 7553, or a removal or transfer under section 713 of title 38 . (2) Title 38 Section 713(f)(1) of title 38, United States Code, is amended by striking or subchapter V and inserting , chapter 43, or subchapters V and VI . (d) Clerical amendment The table of sections at the beginning of chapter 75 of title 5, United States Code, is amended by adding after the item relating to section 7543 the following: Subchapter VI—Senior Executive Service: Expedited Removal 7551. Definitions. 7552. Actions covered. 7553. Cause and procedure. 7554. Expedited review of appeal. . 9. Mandatory reassignment of career appointees (a) In general Section 3395(a) of title 5, United States Code, is amended by adding at the end the following: (3) (A) Consistent with the requirements of paragraphs (1) and (2), at least once every five years beginning on the date that a career appointee is initially appointed to the Senior Executive Service, each career appointee at an agency shall be reassigned to another Senior Executive Service position at the agency at a different geographic location that does not include the supervision of the same agency personnel or programs. (B) The head of an agency may waive the requirement under subparagraph (A) for any career appointee if the head submits notice of the waiver and an explanation of the reasons for the waiver 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. . (b) Conforming amendment Section 3395(a)(1)(A) of title 5, United States Code, is amended by striking paragraph (2) and inserting paragraphs (2) and (3) . (c) Effective date The amendments made by this section shall take effect 90 days after the date of enactment of this Act.