Bill making it easier to fire Senior Executives passes first test

Friday - 7/25/2014, 3:47am EDT

By Ariel Levin-Waldman
Special to Federal News Radio

The House Oversight and Government Reform Committee approved a bill that would make punishing members of the Senior Executive Service easier.

The Senior Executive Service Accountability Act, sponsored by Reps. Darrell Issa (R-Calif.) and Tim Walberg (R-Mich.), would address what many lawmakers see as problems with SES rules, in light of the difficulties in dismissing senior officials involved in scandals at the IRS, the Veterans Affairs Department and other agencies.

The House passed in May the VA Management Accountability Act, which would make it easier for the VA Secretary to fire or demote members of the Senior Executive Service (SES) based on their performance.

Lawmakers introduced this broader bill after instances of non-VA SES members receiving pay, even though they were suspended.

This bill would:

  • Make it easier to fire and suspend SESers;

  • Increase their probation period to two years from one year;

  • Make agencies justify the SES positions every two years;

  • Require agencies to set SES performance metrics in advance of their hiring.

Opponents argued two sections in particular would violate an employee's due process rights. The provisions passed, but Democrat members withdrew amendments after the committee agreed to discuss the provisions with amendment sponsors.

Rep. Eleanor Holmes Norton (D-D.C.) said the provision that would have cut an employee's advance notice of punishment from 30 days to 15 days did not give the accused enough time to prepare a defense.

Rep. Stephen Lynch (D-Mass.) opposed another provision creating mandatory leave. Mandatory leave would have required a terminated SESer to use paid leave days during the period between receiving notice of termination and dismissal. The provision would have imposed a monetary punishment on an employee before an investigation had determined fault. Lynch said that provision was unconstitutional.

Despite the committee stripping out these provisions, the bill still has teeth.

Lawmakers included in the bill a provision that would double the probation period of new SES hires to two years. SES staff demoted to GS-15 also would see their salary reduced to the commensurate level. Currently, SESers who were demoted retain their executive salaries.

Additionally, the bill would let agencies suspend SESers for fewer than 14 days. Previously, SESers could only be terminated or face a 14-day suspension.

Lawmakers also expanded the reasons a SES member could be terminated or suspended. Currently, an employee faces punishment for "misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function," but the Senior Executive Service Accountability Act adds another reason: "Such cause as would promote the efficiency of the service."

"The Oversight and Government Reform Committee has discovered under administrations, both Republicans and Democrats, high ranking government employees engaged in behavior contrary to the principles of public service," Issa said during the committee markup of the bill Thursday. "In the private sector, these behaviors would be grounds for immediate termination, but not in the federal bureaucracy. Under Washington, D.C., rules, we saw these employees keep their salaries and benefits without penalty."

The Senior Executives Association continued its push to kill the bill. The association sent a letter Thursday to Issa and Ranking Member Elijah Cummings (D-Md.) asking them to oppose the legislation.

"H.R. 5169 appears on its face to reform the SES. However, several of the provisions are troubling and appear to be a solution in search of a problem. Rather than adding and changing the current laws, SEA encourages the committee to work with stakeholders to ensure that existing laws are being used and applied appropriately," wrote Carol Bonosaro, the president of the SEA. "This could be accomplished through mandatory supervisor training, onboarding for political appointees, and the creation of a straightforward guide to holding employees accountable."

Ariel Levin-Waldman is an intern with Federal News Radio.

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