Committee passes due process safeguard to administrative leave bill

The House Oversight and Government Reform Committee passed a bill on March 1 that aims to keep agencies from putting employees accused of misconduct on administrative leave indefinitely.

The Administrative Leave Reform Act, sponsored by committee chairman Jason Chaffetz (R-Utah), would prohibit agencies from placing federal employees accused of misconduct or poor performance on administrative leave for any longer than 14 days.

The bill was passed with an amendment proposed by Rep. Stephen Lynch (D-Mass.), which would allow agencies to extend administrative leave in 30-day increments if the misconduct investigation lasts longer than two weeks.

Chaffetz reiterated his position that the vast majority of federal employees do not exploit the administrative leave process, but cited a few “bad apples” from Government Accountability Office reports.

“Administrative leave is an appropriate tool, fair to a point. And it’s not fair to the employee nor is it fair to the government or coworkers to allow these people in perpetuity to continue to be out there without a resolution of whatever their case is,” Chaffetz said.

GAO in October 2014 found that more than 4,000 federal employees were on administrative leave for longer than three months. The report also found that 250 employees were on paid leave for longer than a year, at the cost of $31 million to the government.

Chaffetz also brought up the case of an Environmental Protection Agency employee with a $120,000 salary who was placed on administrative leave for over a year over allegations that he was watching pornography at work.

“This was not just an accidental, ‘Oops, I saw this.’ This was a very egregious case of repetitive, unacceptable behavior,” Chaffetz said.

The employee was ultimately fired from the agency.

Rep. Elijah Cummings (D-Md.), the committee’s ranking member, said the Lynch amendment allayed concerns he expressed in January, when the bill was first marked up.

“You have addressed our concerns that the underlying bill could encourage agencies to suspend an employee without pay and without due process. This amendment would preserve the ability of an agency to place employees on administrative leave in those exceptional circumstances when they may pose a threat to safety, agency mission or government property,” Cummings said.

Without his amendment, Lynch said he feared the bill “would have the unintended consequences of forcing employees whose cases are not resolved within 14 days into an indefinite unpaid leave status.”

The amendment requires that following the 14-day leave period, agencies would be required to return employees to paid duty status in cases where he or she does not pose a threat to safety of the workplace. The provision also allows agencies to consider telework or alternative work assignments.

The amended bill also requires agencies to notify Congress each time they extend leave for an employee under investigation.

“When we undertake the responsibility of reforming federal personnel disciplinary removal procedures, we also implement corresponding due process safeguard that will serve to protect not only those employees who may be guilty of misconduct, but rather all employees in the federal workforce,” Lynch said.

Rep. Gerry Connolly (D-Va.) said amendment strikes a delicate balance, and demonstrates a bipartisan willingness to investigate the issue.

“Some of these cases go on for years unadjudicated, and that’s not fair to the individual, and that’s not fair to the taxpayer or fellow employees when a cloud is allowed to hang over somebody’s head indefinitely. If we can improve the accountability while protecting rights — and I think the Lynch revision does that — I think that’s an improvement.”

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