IIB
113th CONGRESS
1st Session
H. R. 2879
IN THE SENATE OF THE UNITED STATES
September 9, 2013
Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs
AN ACT
To provide limitations on bonuses for Federal employees during sequestration, to provide for investigative leave requirements for members of the Senior Executive Service, to establish certain procedures for conducting in-person or telephonic interactions by Executive branch employees with individuals, and for other purposes.
Short title; table of contents
Short title
This Act may be cited
as the Stop Government Abuse
Act
.
Table of contents
The table of contents is as follows:
Sec. 1. Short title; table of contents.
Title I—Common Sense in Compensation
Sec. 101. Definitions.
Sec. 102. Limitations.
Sec. 103. Regulations.
Title II—Government Employee Accountability
Sec. 201. Suspension for 14 days or less for Senior Executive Service employees.
Sec. 202. Investigative leave and termination authority for Senior Executive Service employees.
Sec. 203. Suspension of Senior Executive Service employees.
Sec. 204. Misappropriation of funds amendments.
Title III—Citizen Empowerment
Sec. 301. Amendments.
Common Sense in Compensation
Definitions
For purposes of this title—
the term employee means an employee (as defined by section 2105(a) of title 5, United States Code) holding a position in or under an Executive agency;
the term Executive agency has the meaning given such term by section 105 of title 5, United States Code;
the term discretionary monetary payment means—
any award or other monetary payment under chapter 45, or section 5753 or 5754, of title 5, United States Code; and
any step-increase under section 5336 of title 5, United States Code;
the term covered compensation, as used with respect to an employee in connection with any period, means the sum of—
the basic pay, and
any discretionary monetary payments (excluding basic pay),
the term basic pay means basic pay for service as an employee; and
the term sequestration period means a period beginning on the first day of a fiscal year in which a sequestration order with respect to discretionary spending or direct spending is issued under section 251A or section 254 of the Balanced Budget and Emergency Deficit Control Act of 1985 and ending on the last day of the fiscal year to which the sequestration order applies.
Limitations
In general
Notwithstanding any other provision of law—
no discretionary monetary payment may be made to an employee during any sequestration period to the extent that such payment would cause in a fiscal year the total covered compensation of such employee for such fiscal year to exceed 105 percent of the total amount of basic pay payable to such individual (before the application of any step-increase in such fiscal year under section 5336 of title 5, United States Code) for such fiscal year; and
except as provided in subsection (b), during any sequestration period, an agency may not pay a performance award under section 5384 of title 5, United States Code, to the extent that such payment would cause the number of employees in the agency receiving such award during such period to exceed 33 percent of the total number of employees in the agency eligible to receive such award during such period.
Waivers
For the purposes of any sequestration period—
the head of any agency may, subject to approval by the Director of the Office of Personnel Management, waive the requirements of subsection (a)(2); and
the head of any agency may waive the requirements of subsection (a)(1) with respect to any employee if the requirements of such subsection would violate the terms of a collective bargaining agreement covering such employee, except that this paragraph shall not apply to any employee covered by a collective bargaining agreement that is renewed on or after the date of enactment of this title.
Notification
In the case of an agency for which the Director of the Office of Personnel Management grants a waiver under subsection (b)(1), the agency shall notify the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate of the percentage of career appointees receiving performance awards under section 5384 of title 5, United States Code, and the dollar amount of each performance award.
Application
This section shall apply to any discretionary monetary payment or performance award under section 5384 of title 5, United States Code, made on or after the date of enactment of this title.
Regulations
The Office of Personnel Management may prescribe regulations to carry out this title.
Government Employee Accountability
Suspension for 14 days or less for Senior Executive Service employees
Paragraph (1) of section 7501 of title 5, United States Code, is amended to read as follows:
employee means—
an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; or
a career appointee in the Senior Executive Service who—
has completed the probationary period prescribed under section 3393(d); or
was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service;
.
Investigative leave and termination authority for Senior Executive Service employees
In general
Chapter 75 of title 5, United States Code, is amended by adding at the end the following:
Investigative leave for Senior Executive Service employees
Definitions
For the purposes of this subchapter—
employee has the meaning given such term in section 7541; and
investigative leave means a temporary absence without duty for disciplinary reasons, of a period not greater than 90 days.
Actions covered
This subchapter applies to investigative leave.
Cause and procedure
Under regulations prescribed by the Office of Personnel Management, an agency may place an employee on investigative leave, without loss of pay and without charge to annual or sick leave, only for misconduct, neglect of duty, malfeasance, or misappropriation of funds.
If an agency determines, as prescribed in regulation by the Office of Personnel Management, that such employee’s conduct is flagrant and that such employee intentionally engaged in such conduct, the agency may place such employee on investigative leave under this subchapter without pay.
At the end of each 45-day period during a period of investigative leave implemented under this section, the relevant agency shall review the investigation into the employee with respect to the misconduct, neglect of duty, malfeasance, or misappropriation of funds.
Not later than 5 business days after the end of each such 45-day period, the agency shall submit a report describing such review 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.
At the end of a period of investigative leave implemented under this section, the agency shall—
remove an employee placed on investigative leave under this section;
suspend such employee without pay; or
reinstate or restore such employee to duty.
The agency may extend the period of investigative leave with respect to an action under this subchapter for an additional period not to exceed 90 days.
An employee against whom an action covered by this subchapter is proposed is entitled to, before being placed on investigative leave under this section—
at least 30 days’ advance written notice, stating specific reasons for the proposed action, unless—
there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed; or
the agency determines, as prescribed in regulation by the Office of Personnel Management, that the employee’s conduct with respect to which an action covered by this subchapter is proposed is flagrant and that such employee intentionally engaged in such conduct;
a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
be represented by an attorney or other representative; and
a written decision and specific reasons therefor at the earliest practicable date.
An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (c)(2).
An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701.
Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.
Removal of Senior Executive Service employees
Definition
For purposes of this subchapter, the term employee has the meaning given such term in section 7541.
Removal of Senior Executive Service employees
Notwithstanding any other provision of law and consistent with the requirements of subsection (b), the head of an agency may remove an employee for serious neglect of duty, misappropriation of funds, or malfeasance if the head of the agency—
determines that the employee knowingly acted in a manner that endangers the interest of the agency mission;
considers the removal to be necessary or advisable in the interests of the United States; and
determines that the procedures prescribed in other provisions of law that authorize the removal of such employee cannot be invoked in a manner that the head of an agency considers consistent with the efficiency of the Government.
An employee may not be removed under this section—
on any basis that would be prohibited under—
any provision of law referred to in section 2302(b)(1); or
paragraphs (8) or (9) of section 2302(b); or
on any basis, described in paragraph (1), as to which any administrative or judicial proceeding—
has been commenced by or on behalf of such employee; and
is pending.
An employee removed under this section shall be notified of the reasons for such removal. Within 30 days after the notification, the employee is entitled to submit to the official designated by the head of the agency statements or affidavits to show why the employee should be restored to duty. If such statements and affidavits are submitted, the head of the agency shall provide a written response, and may restore the employee’s employment if the head of the agency chooses.
Whenever the head of the agency removes an employee under the authority of this section, the head of the agency shall notify Congress of such termination, and the specific reasons for the action.
An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.
Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.
A removal under this section does not affect the right of the employee affected to seek or accept employment with any other department or agency of the United States if that employee is declared eligible for such employment by the Director of the Office of Personnel Management.
The authority of the head of the agency under this section may not be delegated.
.
Clerical amendment
The table of sections at the beginning of chapter 75 of title 5, United States Code, is amended by adding after the item relating to section 7543 the following:
Subchapter VI—Investigative leave for Senior Executive Service employees
7551. Definitions.
7552. Actions covered.
7553. Cause and procedure.
Subchapter VII—Removal of Senior Executive Service employees
7561. Definition.
7562. Removal of Senior Executive Service employees.
.
Suspension of Senior Executive Service employees
Section 7543 of title 5, United States Code, is amended—
in subsection (a), by inserting
misappropriation of funds,
after malfeasance,
;
and
in subsection (b), by amending paragraph (1) to read as follows:
at least 30 days’ advance written notice, stating specific reasons for the proposed action, unless—
there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed; or
the agency determines, as prescribed in regulation by the Office of Personnel Management, that the employee’s conduct with respect to which an action covered by this subchapter is proposed is flagrant and that such employee intentionally engaged in such conduct;
.
Misappropriation of funds amendments
Reinstatement in the Senior Executive Service
Section 3593 of title 5, United States Code, is amended—
in subsection (a)(2), by inserting
misappropriation of funds,
after malfeasance,
;
and
in subsection (b),
by striking or malfeasance
and inserting malfeasance, or
misappropriation of funds
.
Placement in other personnel systems
Section 3594(a) of title 5, United
States Code, is amended by striking or malfeasance
and inserting
malfeasance, or misappropriation of funds
.
Citizen Empowerment
Amendments
In general
Part III of title 5, United States Code, is amended by inserting after chapter 79 the following:
Services to members of the public
Sec.
7921. Procedure for in-person and telephonic interactions conducted by Executive Branch employees.
Procedure for in-person and telephonic interactions conducted by Executive Branch employees
Purpose
The purpose of this section is to ensure that individuals have the right to record in-person and telephonic interactions with Executive agency employees and to ensure that individuals who are the target of enforcement actions conducted by Executive agency employees are notified of such right.
Definitions
For purposes of this section—
the term telephonic means by telephone or other similar electronic device; and
the term employee means an employee of an Executive agency.
Consent of Executive agency employees
Participation by an employee, acting in an official capacity, in an in-person or telephonic interaction shall constitute consent by the employee to a recording of that interaction by any participant in the interaction.
Notice of rights when Federal employees engaged in certain actions
A notice of an individual’s right to record conversations with employees shall be included in any written material provided by an Executive agency to the individual concerning an audit, investigation, inspection, or enforcement action that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual.
Official representative
Any person who is permitted to represent before an Executive agency an individual under this section shall receive the same notice as required under subsection (d) with respect to such individual.
No cause of action
This section does not create any express or implied private right of action.
Disciplinary action
An employee who violates this section shall be subject to appropriate disciplinary action in accordance with otherwise applicable provisions of law.
Public information concerning right To record
Posting on agency Web sites
Within 180 days after the date of the enactment of this section, each Executive agency shall post prominently on its Web site information explaining the right of individuals to record interactions with employees.
OMB guidance
Within 90 days after the date of the enactment of this section, the Office of Management and Budget shall issue guidance to Executive agencies concerning implementation of paragraph (1).
.
Clerical Amendment
The analysis for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 79 the following:
.
Passed the House of Representatives August 1, 2013.
Karen L. Haas,
Clerk
