II Calendar No. 272 114th CONGRESS 1st Session S. 1082 IN THE SENATE OF THE UNITED STATES April 23, 2015 Mr. Rubio (for himself, Mr. Vitter , Mr. Barrasso , Mr. Toomey , Mr. Cassidy , Mr. Flake , Mr. Cornyn , Mr. Hatch , Mr. Johnson , Mr. McCain , Mr. Burr , Mr. Kirk , Mr. Moran , Mr. Tillis , and Ms. Ayotte ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs October 19, 2015 Reported by Mr. Isakson , with amendments Omit the part struck through and insert the part printed in italic A BILL To amend title 38, United States Code, to provide for the removal or demotion of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes.

1. Short title This Act may be cited as the Department of Veterans Affairs Accountability Act of 2015 . 2. Removal or demotion of employees based on performance or misconduct (a) In general Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section: 714. Employees: removal or demotion based on performance or misconduct (a) In general The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. If the Secretary so removes or demotes such an individual, the Secretary may— (1) remove the individual from the civil service (as defined in section 2101 of title 5); or (2) demote the individual by means of— (A) a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or (B) a reduction in annual rate of pay that the Secretary determines is appropriate. (a) In general (1) The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. (2) A determination under paragraph (1) that the performance or misconduct of an individual warrants removal or demotion may consist of a determination of any of the following: (A) The individual neglected a duty of the position in which the individual was employed. (B) The individual engaged in malfeasance. (C) The individual failed to accept a directed reassignment or to accompany a position in a transfer of function. (D) The individual violated a policy of the Department. (E) The individual violated a provision of law. (F) The individual engaged in insubordination. (G) The individual over prescribed medication. (H) The individual contributed to the purposeful omission of the name of one or more veterans waiting for health care from an electronic wait list for a medical facility of the Department. (I) The individual was the supervisor of an employee of the Department, or was a supervisor of the supervisor, at any level, who contributed to a purposeful omission as described in subparagraph (H) and knew, or reasonably should have known, that the employee contributed to such purposeful omission. (J) Such other performance or misconduct as the Secretary determines warrants the removal or demotion of the individual under paragraph (1). (3) If the Secretary removes or demotes an individual as described in paragraph (1), the Secretary may— (A) remove the individual from the civil service (as defined in section 2101 of title 5); or (B) demote the individual by means of— (i) a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or (ii) a reduction in annual rate of pay that the Secretary determines is appropriate. (b) Pay of certain demoted individuals (1) Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(2)(A) (a)(3)(B)(i) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. (2) An individual so demoted 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 individual so demoted does not report for duty, such individual shall not receive pay or other benefits pursuant to subsection (e)(5). (c) Notice to Congress Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives notice in writing of such removal or demotion and the reason for such removal or demotion. (d) Procedure (1) The procedures under section 7513(b) of title 5 and chapter 43 of such title shall not apply to a removal or demotion under this section. (2) (A) Subject to subparagraph (B) and subsection (e), any removal or demotion under subsection (a) may be appealed to the Merit Systems Protection Board under section 7701 of title 5. (B) An appeal under subparagraph (A) of a removal or demotion may only be made if such appeal is made not later than seven days after the date of such removal or demotion. (e) Expedited review by administrative law judge (1) Upon receipt of an appeal under subsection (d)(2)(A), the Merit Systems Protection Board shall refer such appeal to an administrative law judge pursuant to section 7701(b)(1) of title 5. The administrative law judge shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 45 days after the date of the appeal. (2) Notwithstanding any other provision of law, including section 7703 of title 5, the decision of an administrative judge under paragraph (1) shall be final and shall not be subject to any further appeal. (3) In any case in which the administrative judge cannot issue a decision in accordance with the 45-day requirement under paragraph (1), the removal or demotion is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or demotion is final, submit to Congress and the Committees on Veterans' Affairs of the Senate and House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement. (4) The Merit Systems Protection Board or administrative judge may not stay any removal or demotion under this section. (5) During the period beginning on the date on which an individual appeals a removal from the civil service under subsection (d) and ending on the date that the administrative judge issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits. (6) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board, and to any administrative law judge to whom an appeal under this section is referred, such information and assistance as may be necessary to ensure an appeal under this subsection is expedited. (f) Whistleblower protection (1) In the case of an individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5. (2) The Office of Special Counsel shall establish— (A) a mechanism to expedite cases for corrective action under paragraph (1); and (B) a standard for the approval under paragraph (1) of removal or demotion under subsection (a), which may include a determination as to whether the removal or demotion is a prohibited personnel action. (3) (A) Notwithstanding any other provision of law, the Special Counsel may terminate an investigation of a prohibited personnel practice alleged by an individual in connection with a removal or demotion of the individual under subsection (a) only after the Special Counsel provides to the individual a written statement of the reasons for the termination of the investigation. (B) The written statement provided to the individual under subparagraph (A) may not be admissible as evidence in any judicial or administrative proceeding without the consent of such individual. (f) Limitation on removal or demotion In the case of an individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5. (g) Relation to other provisions of law (1) The authority provided by this section is in addition to the authority provided by subchapter V of chapter 75 of title 5 and chapter 43 of such title. (2) Subchapter V of chapter 74 of this title shall not apply to any action under this section. (h) Definitions In this section: (1) The term individual means an individual occupying a position at the Department of Veterans Affairs but does not include— (A) an individual, as that term is defined in section 713(g)(1); or (B) a political appointee. (2) The term grade has the meaning given such term in section 7511(a) of title 5. (3) 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. (4) The term political appointee means an individual who is— (A) employed in a position described under sections 5312 through 5316 of title 5, (relating to the Executive Schedule); (B) is a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or (C) is employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations. . (b) Clerical and conforming amendments (1) Clerical The table of sections at the beginning of such chapter is amended by adding at the end the following new item: 714. Employees: removal or demotion based on performance or misconduct. . (2) Conforming Section 4303(f) of title 5, United States Code, is amended— (A) by striking or at the end of paragraph (2); (B) by striking the period at the end of paragraph (3) and inserting , or ; and (C) by adding at the end the following: (4) any removal or demotion under section 714 of title 38. . 3. Required probationary period for new employees of Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, as amended by section 2, is further amended by adding at the end the following new section: 715. Probationary period for employees (a) In general Notwithstanding sections 3321 and 3393(d) of title 5, the appointment of a covered employee shall become final only after such employee has served a probationary period of 540 days. The Secretary may extend a probationary period under this subsection at the discretion of the Secretary. (b) Covered employee In this section, the term covered employee — (1) means any individual— (A) appointed to a permanent position within the competitive service at the Department; or (B) appointed as a career appointee (as that term is defined in section 3132(a)(4) of title 5) within the Senior Executive Service at the Department; and (2) does not include any individual with a probationary period prescribed by section 7403 of this title. (c) Permanent hires Upon the expiration of a covered employee’s probationary period under subsection (a), the supervisor of the employee shall determine whether the appointment becomes final based on regulations prescribed for such purpose by the Secretary. . (b) Application The amendment made by subsection (a) shall apply to any covered employee (as that term is defined in section 715 of title 38, United States Code, as added by such subsection) appointed after the date of enactment of this section. (c) Clerical and conforming amendments (1) Clerical The table of sections at the beginning of such chapter, as amended by section 2, is further amended by adding at the end the following new item: 715. Probationary period for employees. . (2) Conforming Title 5, United States Code, is amended— (A) in section 3321(c), by— (i) striking Service or and inserting Service, ; and (ii) inserting at the end before the period the following: , or any individual covered by section 715 of title 38 ; and (B) in section 3393(d), by adding at the end after the period the following: The preceding sentence shall not apply to any individual covered by section 715 of title 38. . 4. Comptroller General study of Department time and space used for labor organization activity (a) Study required Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a study on the amount of time spent by Department of Veterans Affairs employees carrying out organizing activities relating to labor organizations and the amount of space in Department facilities used for such activities. The study shall include a cost-benefit analysis of the use of such time and space for such activities. (b) Report to Congress Not later than 90 days after the completion of the study required under subsection (a), the Comptroller General shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the results of the study.

October 19, 2015 Reported with amendments