II 115th CONGRESS 2d Session S. 2581 IN THE SENATE OF THE UNITED STATES March 21, 2018 Mrs. Ernst introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL 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.

1. Short title This Act may be cited as the Political Appointee Burrowing Prevention Act . 2. Limitation on employment of political appointees in career civil service positions (a) In general Subchapter I of chapter 31 of title 5, United States Code, is amended by adding at the end the following: 3115. Employment of political appointees (a) Appointment approval required (1) In general The head of an agency may not appoint any individual described in paragraph (5) to a career position within the agency without receiving prior written approval from the Associate Director for Merit Systems Accountability and Compliance, consistent with the requirements of this subsection. (2) Request The head of an agency shall submit a request to the Associate Director to approve the appointment of any individual described in paragraph (5) to a career position. Any such request shall include certification by the head of the agency to the Associate Director that the appointment is necessary for the agency to meet its mission. (3) Review and determination The Associate Director shall review any request received pursuant to paragraph (2) and deny any such request unless the Associate Director determines that the appointment process with respect to the request was fair, open, and free from political influence. If the Associate Director makes that determination, the Associate Director may approve the request. (4) Notification to Congress With respect to any request approved under paragraph (3), the Associate Director shall, not less than five days before the date the Associate Director provides approval to the head of the requesting agency, provide 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 agency certification under paragraph (2) and the agency head’s rationale for that certification. (5) Covered individuals An individual described in this paragraph is— (A) a political appointee; (B) a former political appointee who held any political position during the five-year period before the date of the request described in paragraph (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 five-year period described in subparagraph (B). (b) Restriction on appointment (1) In general Notwithstanding any other law, rule, or regulation, during the 2-year period following the date a political appointee leaves or departs from a political position, such appointee may not be appointed to any career position in the civil service. (2) Exception Paragraph (1) shall not apply to a political appointee who has not personally and substantially participated in any particular matter while employed in a political position. (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 the Associate Director for Merit Systems Accountability and Compliance at the Office of Personnel Management; (3) the term political appointee means an individual serving in an appointment of any duration to a political position; (4) 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); and (D) a general position in the Senior Executive Service during such time as it is filled by— (i) a noncareer appointee, as defined in paragraph (7) of section 3132(a); or (ii) a limited term appointee or limited emergency appointee, as defined in paragraphs (5) and (6) of section 3132(a), who is serving under a political appointment; (5) the term career position means— (A) a position in the competitive service filled by 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 when filled by a career appointee, as defined in section 3132(a)(4); (6) 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; and (7) 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. . (b) Clerical amendment The table of sections of chapter 31 of title 5, United States Code, is amended by adding after the item relating to section 3114 the following: 3115. Employment of political appointees. . (c) Application (1) Appointment requests Section 3115(a) of title 5, United States Code, as added by subsection (a), shall apply to any appointment or request for appointment described in such section submitted to the Associate Director for Merit Systems Accountability and Compliance after the date of enactment of this Act. (2) Limitation on appointments Section 3115(b) of title 5, United States Code, as added by subsection (a), shall apply to any individual who leaves or departs from a political position (as that term is defined in section 3115(d) of such title, as added by such subsection) after the date of enactment of this Act. (d) Regulations required The Director of the Office of Personnel Management shall issue regulations necessary to carry out this Act. Such regulations shall include guidance on the definition of the term personally and substantially participated in any particular matter in section 3115(b)(2) of title 5, United States Code, as added by subsection (a), consistent with section 2641.201 of title 5, Code of Federal Regulations.