House considers expanding VA-like SES firing authorities governmentwide

Members of the Senior Executive Service accused of misconduct and poor performance could face some of the same firing procedures that senior officials in the Veterans Affairs Department now come under. The provisions are part of a new bill the House Oversight and Government Reform Committee is considering.

The committee is marking up the Senior Executive Service Accountability Act, the Official Personnel File Enhancement Act and one amendment to the U.S. Code, which would change paid leave, probationary periods and removal practices for career appointees and SES members.

The SES Accountability Act, which Tim Walberg (R-Mich.) introduced Jan. 12, stems from a similar bill he introduced in 2014. It extends the probationary period from one to two years for career employees, changes pay retention rates for employees accused of misconduct and poor performance, and gives agency leaders the authority to put employees subject to removal on mandatory leave.

But it also sets procedures for agency leaders to fire poor performing executives and appointees faster — using similar requirements that Congress mandated for the  VA under the Veterans Access, Choice and Accountability Act.

Walberg acknowledged most federal employees are hardworking public servants, but his bill is in reaction to the “bad actors” and numerous scandals among senior executives who abuse their positions, he said.

Congressman Tim Walberg (R-Mich.)
Rep. Tim Walberg (R-Mich.)

In urging the committee to consider his bill, Walberg reminded members of the similarities between the SES Accountability Act and the VA Choice Act, which most voted for.

But some members said the VA — and the legislation they passed to address pervasive accountability issues at the department — isn’t a model for how all agencies should operate.

“We never intended, in support of that, for that to become the new standard for all federal agencies,” said Gerry Connolly (D-Va.). “Quite the opposite. We made an exception quite clearly. We pointed out that the VA was broken, that there was a backlog, that lives were at risk.”

Connolly said these requirements could also deter potential candidates from applying to the SES or a government job in general. He said he fears agencies would lose out on talented, qualified applicants to the private sector.

The Senior Executives Association has similar concerns.

“We need to address the growing imbalance between the risks and rewards of becoming a senior executive and other factors that are really holding back the potential … candidates from entering the SES,” said Jason Briefel, SEA’s legislative director. “We do think there’s a lot of work that’s necessary, but we don’t think these punitive firing-centric provisions are really going to help us get there.”

Walberg’s legislation covers everything from shorter administrative leave to mandatory, five-year reassignments to other positions at a different geographic location within an agency — proposals where most of the committee’s Democrats and some federal employee groups indicated their opposition.

But for the SEA, it’s the expedited firing authorities that raise the most concerns for SES members and their due process rights.

“We see some of those provisions as guilty until proven innocent, which fundamentally turns the notion of justice in the American legal system on its head,” Briefel said.

The firing authorities the VA has for SESers  already are under review at the United States Court of Appeals for the Federal Circuit, the SEA wrote in a letter to the committee.

Specifically, the bill lets agency leaders entirely remove an employee for bad performance or misconduct or transfer the employee from an SES to General Schedule position, with five days notice.

If an employee appeals the case, the Merit Systems Protection Board has 21 days to make a decision. Otherwise, the decision is final.

“These bills would punish the whole workforce for the potential actions of a few and would undermine basic principles of due process that have been in place for decades,” J. David Cox, national president of the American Federation of Government Employees, said in a press release.

Debra D’Agostino, a federal employment attorney at the Federal Practice Group who often represents senior executives in their appeals cases, said the bill puts the onus on the employee, rather than the agency.

It’s the agency, she said, that spends too much time on the employee’s investigation, often months or years, before proposing a disciplinary action.

“In any of these games, all of the deadlines are pointed to the employee, and all the accountability for missing a deadline is pointed at the employee,” she said. “Where there are deadlines on the government and the government misses them, there’s no accountability for that. There’s nothing an employee can do to say ‘hey, government, you missed your deadline, don’t I win?’ That just doesn’t exist.”

Longer probationary periods?

Despite much debate, the committee also is considering an amendment to title 5 of the U.S. Code, which would extend the probationary period from one to two years for members of the competitive service and SES.

The amendment’s proponents argue that longer probationary periods will help employees with more technical jobs complete training they need.

“There are some very complex jobs out there,” Committee Chairman Jason Chaffetz (R-Utah) said. “FAA, for instance, we’ve been chatting with them. It takes a year and a half or so until they’re properly trained up. There are IRS officials that deal with very complex tax cases.”

Several groups that represent federal employees under the Government Managers Coalition (GMC), as well as the National Active and Retired Federal Employees Association, said they generally favor the idea.

“The existing probationary period often places an unfair burden on both the employee and the manager,” the GMC wrote in a letter to the committee. “In many cases, managers are placed in the position of having to decide whether to retain employees when they may not have had sufficient time, or even any time, to evaluate them. If a marginal employee is not removed during the one-year probationary period, the burden of proof required to take a removal action becomes much greater.”

But the coalition also urged more flexibility.

Briefel said the committee should consider letting agencies evaluate employees who have proven themselves after the first year.

Some committee members, however, questioned a blanket requirement on all agencies.

“The committee has not yet examined whether there is a problem,” said Elijah Cummings (D-Md.), the committee’s ranking member. “We have not seen any evidence that federal agencies need a blanket one year extension on probationary period for every federal job in the competitive and senior executive service.”

Cummings urged the committee to first study the agencies, such as the Defense Department, that already have longer probationary periods to determine whether the idea is working. But the committee rejected his amendment.

The committee also added an amendment to Chaffetz’s Official Personnel File Enhancement Act. The chairman’s legislation would require agency leaders to include any findings of a government investigation in an employee’s personnel file. It specifically applies to employees accused of bad performance or misconduct who leave government before the agency can finish the investigation.

“There are people who do silly, stupid stuff, they get caught and it should be notated as such,” Chaffetz said. “If you simply switch jobs from one part of the federal government to another part of the federal government, that record should follow you. That’s how we know the type of person and the type of employee you might be.”

The amendment, which Connolly introduced, ensures that an employee can submit an appeal after an investigation ends.

“I fear the bill provides no opportunity … for rebuttal or appeal for the separated employee,” Connolly said.

Agencies already note when an employee leaves in the middle of an investigation, Briefel said.

D’Agostino said there already are checks and balances in places for employees who leave under a cloud of investigation and look for another job. Agencies still can give whatever reference they like, she said.

“If somebody quits when their security clearance is up for debate and then they get a new job, you know what happens,” D’Agostino said. “They pick up right where they left off. You can’t escape it.”

Chaffetz also withdrew the Administrative Leave Reform Act, which would have limited the number of days an employee accused of misconduct or poor performance could stay on leave.

Though Cummings acknowledged abuse with administrative leave procedures now, he said the proposed legislation raised more questions than answers.

“The bill does not provide direction to an agency after those 14 days have expired,” he said. “Does the employee go back to work? Is the employee put on leave without pay? This legislation does not answer those questions.”

Chaffetz agreed there were problems with the bill in its current form and said he would work with committee members to draft a new version.