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S. 290 (114th): Increasing the Department of Veterans Affairs Accountability to Veterans Act of 2016

The text of the bill below is as of Dec 11, 2016 (Passed the Senate).


114th CONGRESS

2d Session

S. 290

IN THE SENATE OF THE UNITED STATES

AN ACT

To amend title 38, United States Code, to improve the accountability of employees of the Department of Veterans Affairs, and for other purposes.

1.

Short title

This Act may be cited as the Increasing the Department of Veterans Affairs Accountability to Veterans Act of 2016.

2.

Reduction of benefits for senior executives and certain health care employees of Department of Veterans Affairs convicted of a felony

(a)

In general

Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section:

715.

Senior executives and section 7401(1) employees: reduction of benefits of individuals convicted of a felony

(a)

Reduction of annuity for removed individual

The covered service of an individual removed from a covered position at the Department by the Secretary for performance or misconduct shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if the individual is convicted of a felony (and the conviction is final) that was related, as determined by the Director of the Office of Personnel Management, to the individual’s conduct or performance while employed in such covered position.

(b)

Reduction of annuity for retired individual

(1)

The Secretary may order that the covered service of an individual who is subject to a removal or transfer from a covered position at the Department by the Secretary for performance or misconduct but who leaves employment at the Department prior to the issuance of a final decision with respect to such removal or transfer shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if the individual is convicted of a felony (and the conviction is final) that was related, as determined by the Director of the Office of Personnel Management, to the individual’s performance while employed in such covered position.

(2)

The Secretary shall make such an order not later than 7 days after the date on which such individual is convicted of such felony.

(3)

Not later than 30 days after the Secretary issues any order with respect to an individual under paragraph (1), the Director of the Office of Personnel Management shall recalculate the annuity of the individual.

(c)

Lump-sum annuity credit

Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.

(d)

Review of reduction of annuity

Any individual whose annuity is reduced under subsection (a) or (b) may appeal the reduction to the Director of the Office of Personnel Management.

(e)

Definitions

In this section:

(1)

The term covered position is—

(A)

a senior executive position; or

(B)

a position listed in section 7401(1) of this title that is not a senior executive position.

(2)

The term covered service means, with respect to an individual subject to a removal or transfer from a covered position at the Department for performance or misconduct, the period of service beginning on the date that the Secretary determines that such individual engaged in activity that gave rise to such action and ending on the date that such individual is removed from the civil service or leaves employment at the Department prior to the issuance of a final decision with respect to such action, as the case may be.

(3)

The term lump-sum credit has the meaning given such term in section 8331 or 8401 of title 5, as the case may be.

(4)

The term senior executive position has the meaning given such term in section 713(g) of this title.

(5)

The term service has the meaning given such term in section 8331 or 8401 of title 5, as the case may be.

.

(b)

Application

Section 715 of such title, as added by subsection (a), shall apply to any action of removal or transfer from a covered position (as defined in subsection (e) of such section) at the Department of Veterans Affairs commencing on or after the date of the enactment of this Act.

(c)

Clerical amendment

The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

715. Senior executives and section 7401(1) employees: reduction of benefits of individuals convicted of a felony.

.

3.

Limitation on administrative leave for employees of Department of Veterans Affairs

(a)

In general

Chapter 7 of title 38, United States Code, is further amended by adding at the end the following new section:

717.

Administrative leave limitation and report

(a)

Limitation applicable to employees within the Department

(1)

The Secretary may not place any covered individual on administrative leave for more than a total of 14 business days during any 365-day period.

(2)
(A)

The Secretary may waive the limitation under paragraph (1) and extend the period of administrative leave of a covered individual if the Secretary submits to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a detailed explanation of the reasons the covered individual was placed on administrative leave and the reasons for the extension of such leave.

(B)

Such explanation shall include the position of the covered individual and the location where the covered individual is employed.

(3)

In this subsection, the term covered individual means an employee of the Department, including an employee in a senior executive position (as defined in section 713(g) of this title)—

(A)

who is subject to an investigation for purposes of determining whether such individual should be subject to any disciplinary action under this title or title 5; or

(B)

against whom any disciplinary action is proposed or initiated under this title or title 5.

(b)

Report on administrative leave

(1)

Not later than 30 days after the end of each fiscal year, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report listing the position of each employee of the Department (if any) who has been placed on administrative leave for a period longer than 14 business days during such fiscal year.

(2)

Each report submitted under paragraph (1) shall include, with respect to each employee listed in such report, the following:

(A)

The position occupied by the employee.

(B)

The number of business days of such leave.

(C)

The reason that such employee was placed on such leave.

(3)

In submitting each report under paragraph (1), the Secretary shall take such measures to protect the privacy of the employees listed in the report as the Secretary considers appropriate.

(c)

Administrative leave defined

In this section, the term administrative leave

(1)

means an administratively authorized absence from duty without loss of pay or charge to leave for which the employee is placed due to an investigation on or for whom any disciplinary action is proposed or initiated; and

(2)

includes any type of paid non-duty status without a charge to leave.

.

(b)

Application

(1)

Administrative leave limitation

Subsection (a) of section 717 of title 38, United States Code (as added by subsection (a)), shall apply to any period of administrative leave (as defined in such section) commencing on or after the date of the enactment of this Act.

(2)

Report

The report under section 717(b) of such title (as added by subsection (a)) shall apply beginning in the first quarter that ends after the date that is 180 days after the date of the enactment of this Act.

(c)

Clerical amendment

The table of sections at the beginning of chapter 7 of such title is further amended by adding at the end the following new item:

717. Administrative leave limitation and report.

.

4.

Accountability of leaders for managing the Department of Veterans Affairs

(a)

In general

Chapter 7 of title 38, United States Code, is amended by inserting after section 709 the following new section:

710.

Annual performance plan for political appointees

(a)

In general

The Secretary shall conduct an annual performance plan for each political appointee of the Department that is similar to the annual performance plan conducted for an employee of the Department who is appointed as a career appointee (as that term is defined in section 3132(a)(4) of title 5) within the Senior Executive Service at the Department.

(b)

Elements of plan

Each annual performance plan conducted under subsection (a) with respect to a political appointee of the Department shall include, to the extent applicable, an assessment of whether the appointee is meeting the following goals:

(1)

Recruiting, selecting, and retaining well-qualified individuals for employment at the Department.

(2)

Engaging and motivating employees.

(3)

Training and developing employees and preparing those employees for future leadership roles within the Department.

(4)

Holding each employee of the Department that is a manager accountable for addressing issues relating to performance, in particular issues relating to the performance of employees that report to the manager.

.

(b)

Clerical amendment

The table of sections at the beginning of chapter 7 of such title is further amended by inserting after the item relating to section 709 the following new item:

710. Annual performance plan for political appointees.

.

5.

Accountability of supervisors at Department of Veterans Affairs for hiring well-qualified people

(a)

Assessment during probationary period

(1)

Determination required

With respect to any employee of the Department of Veterans Affairs who is required to serve a probationary period in a position in the Department, the Secretary of Veterans Affairs shall require the supervisor of such employee to determine, during the 30-day period ending on the date on which the probationary period ends, whether the employee—

(A)

has demonstrated successful performance; and

(B)

should continue past the probationary period.

(2)

Limitation on employment after probationary period

(A)

In general

Except as provided in subparagraph (B), no employee of the Department serving a probationary period as described in paragraph (1) may complete that probationary period unless and until the supervisor of the employee, or another supervisor capable of making the requisite determination, has made an affirmative determination under such paragraph.

(B)

Probationary period deemed completed

(i)

No determination

If no determination under paragraph (1) is made with respect to an employee before the end of the 60-day period following the end of the 30-day period specified in such paragraph, the employee shall be deemed to have completed the probationary period of the employee effective as of the end of that 60-day period.

(ii)

Retroactive effect of determination

If an affirmative determination under paragraph (1) is made with respect to an employee after the end of the 30-day period specified in such paragraph, the employee shall be deemed to have completed the probationary period of the employee effective as of the end of that 30-day period.

(3)

Notification to Congress regarding determinations

Not less frequently than monthly, the Secretary shall notify the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives regarding—

(A)

each instance during such month in which a supervisor did not make a determination required under paragraph (1) during the period required in such paragraph; and

(B)

each such instance included in a previous notification under this paragraph for which the supervisor still has not made such a determination.

(b)

Supervisors

With respect to any employee of the Department who is serving a probationary period in a supervisory position at the Department, successful performance under subsection (a) shall include demonstrating management competencies in addition to the technical skills required for such position.

(c)

Performance plan

Each annual performance plan conducted for a supervisor of an employee serving a probationary period shall hold the supervisor accountable for—

(1)

providing regular feedback to such employee during such period before making a determination under subsection (a) regarding the probationary status of such employee; and

(2)

making a timely determination under subsection (a) regarding the probationary status of such employee.

(d)

Supervisor defined

In this section, the term supervisor has the meaning given such term in section 7103(a) of title 5, United States Code.

6.

Accountability of managers for addressing performance of employees

The Secretary of Veterans Affairs shall ensure that, as a part of the annual performance plan of an employee of the Department of Veterans Affairs who is a manager, the manager is evaluated on the following:

(1)

Taking action to address poor performance and misconduct among the employees that report to the manager.

(2)

Taking steps to improve or sustain high levels of employee engagement.

7.

Expansion of definition of personnel action to include performance evaluations of employees of the Department of Veterans Affairs

Section 2302(a)(2)(A)(viii) of title 5, United States Code, is amended by inserting or under title 38 after chapter 43 of this title.

8.

Written opinion on certain employment restrictions after terminating employment with the Department of Veterans Affairs

(a)

In general

Chapter 7 of title 38, United States Code, is further amended by adding at the end the following new section:

719.

Written opinion on certain employment restrictions after terminating employment with the Department

(a)

In general

Before terminating employment with the Department, any official of the Department who has participated personally and substantially during the one-year period ending on the date of the termination in an acquisition by the Department that exceeds $10,000,000 shall obtain a written opinion from an appropriate ethics counselor at the Department regarding any restrictions on activities that the official may undertake on behalf of a covered contractor during the two-year period beginning on the date on which the official terminates such employment.

(b)

Covered contractor defined

In this section, the term covered contractor means a contractor carrying out a contract entered into with the Department, including pursuant to a subcontract.

.

(b)

Clerical amendment

The table of sections at the beginning of chapter 7 of such title is further amended by inserting after the item relating to section 717 the following new item:

719. Written opinion on certain employment restrictions after leaving the Department.

.

9.

Requirement for contractors of the Department employing certain recently separated Department employees

(a)

In general

Subchapter II of chapter 81 of title 38, United States Code, is amended by adding at the end the following new section:

8129.

Requirement for contractors employing certain recently separated Department employees

(a)

In general

A covered contractor may not knowingly provide compensation to an individual described in subsection (b) during the two-year period beginning on the date on which the individual terminates employment with the Department unless the covered contractor determines that the individual—

(1)

has obtained the written opinion required under section 719(a) of this title; or

(2)

has requested such written opinion not later than 30 days before receiving compensation from the covered contractor.

(b)

Individual described

An individual described in this subsection is any official of the Department who participated personally and substantially during the one-year period ending on the date of the termination individual's employment with the Department in an acquisition by the Department that exceeds $10,000,000.

(c)

Covered contractor defined

In this section, the term covered contractor means a contractor carrying out a contract entered into with the Department, including pursuant to a subcontract.

.

(b)

Application

The requirement under section 8129(a) of title 38, United States Code, as added by subsection (a), shall apply with respect to any entity that enters into a contract with the Department on or after the date of the enactment of this Act.

(c)

Clerical amendment

The table of sections at the beginning of chapter 81 of such title is amended by inserting after the item relating to section 8128 the following new item:

8129. Requirement for contractors employing certain recently separated Department employees.

.

Passed the Senate December 10 (legislative day, December 9), 2016.

Secretary