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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 9, 2016 (Reported by Senate Committee).


II

Calendar No. 725

114th CONGRESS

2d Session

S. 290

IN THE SENATE OF THE UNITED STATES

January 28, 2015

(for himself, Ms. Ayotte, Mr. Rubio, Mr. McCain, Mrs. Ernst, Mr. Blumenthal, Mr. Kirk, Mr. Bennet, and Mr. Daines) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs

December 9, 2016

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

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 2015.

2.

Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain crimes

(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: reduction of benefits of individuals convicted of certain crimes

(a)

Reduction of annuity for removed employee

The covered service of an individual removed from a senior executive position under section 713 of this title 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 that influenced the individual’s performance while employed in the senior executive position.

(b)

Reduction of annuity for retired employee

(1)

The Secretary may order that the covered service of an individual who is subject to a removal or transfer action under section 713 of this title but who leaves employment at the Department prior to the issuance of a final decision with respect to such action 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 that influenced the individual’s performance while employed in the senior executive 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)

Definitions

In this section:

(1)

The term covered service means, with respect to an individual subject to a removal or transfer action under section 713 of this title, the period of service beginning on the date that the Secretary determines under such section 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.

(2)

The term lump-sum credit has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.

(3)

The term senior executive position has the meaning given such term in section 713(g)(3) of this title.

(4)

The term service has the meaning given such term in section 8331(12) or section 8401(26) 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 under section 713 of such title 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: reduction of benefits of individuals convicted of certain crimes.

.

3.

Reform of performance appraisal system for Senior Executive Service employees of the Department of Veterans Affairs

(a)

Performance appraisal system

(1)

In general

Chapter 7 of title 38, United States Code, as amended by section 2, is further amended by adding at the end the following new section:

717.

Senior executives: performance appraisal

(a)

Performance appraisal system

(1)

The performance appraisal system for individuals employed in senior executive positions in the Department required by section 4312 of title 5 shall provide, in addition to the requirements of such section, for five annual summary ratings of levels of performance as follows:

(A)

One outstanding level.

(B)

One exceeds fully successful level.

(C)

One fully successful level.

(D)

One minimally satisfactory level.

(E)

One unsatisfactory level.

(2)

The following limitations apply to the rating of the performance of such individuals:

(A)

For any year, not more than 10 percent of such individuals who receive a performance rating during that year may receive the outstanding level under paragraph (1)(A).

(B)

For any year, not more than 20 percent of such individuals who receive a performance rating during that year may receive the exceeds fully successful level under paragraph (1)(B).

(3)

In evaluating the performance of an individual under the performance appraisal system, the Secretary shall take into consideration any complaint or report (including any pending or published report) submitted by the Inspector General of the Department, the Comptroller General of the United States, the Equal Employment Opportunity Commission, or any other appropriate person or entity, related to any facility or program managed by the individual.

(b)

Change of position

(1)

Not less frequently than once every five years, the Secretary shall reassign each individual employed in a senior executive position to a position at a different location that does not include the supervision of the same personnel or programs.

(2)

The Secretary may waive the requirement under paragraph (1) for any such 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 notice of the waiver and an explanation of the reasons for the waiver.

(c)

Report

(1)

Not later than March 1 of each 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 on the performance appraisal system of the Department under subsection (a).

(2)

Each report submitted under paragraph (1) shall include, for the year preceding the year during which the report is submitted, all documentation concerning each of the following for each individual employed in a senior executive position in the Department:

(A)

The initial performance appraisal.

(B)

The higher level review, if requested.

(C)

The recommendations of the performance review board.

(D)

The final summary review.

(E)

The review of the Inspector General of the Department of the information described in subparagraphs (A) through (D).

(d)

Definition of senior executive position

In this section, the term senior executive position has the meaning given that term in section 713(g) of this title.

.

(2)

Clerical amendment

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

717. Senior executives: performance appraisal.

.

(3)

Conforming amendment

Section 4312(b) of title 5, United States Code, is amended—

(A)

in paragraph (2), by striking and at the end;

(B)

in paragraph (3), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(4)

that, in the case of the Department of Veterans Affairs, the performance appraisal system meets the requirements of section 716 of title 38.

.

(b)

Review of SES management training

(1)

Review

(A)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall enter into a contract with a nongovernmental entity to review the management training program for individuals employed in senior executive positions (as such term is defined in section 713(g) of title 38, United States Code) of the Department of Veterans Affairs that is being provided as of the date of the enactment of this Act.

(B)

Comparison

The review required by subparagraph (A) shall include a comparison of the training provided by the Department of Veterans Affairs to the management training provided for senior executives of other Federal departments and agencies and to the management training provided to senior executives in the private sector.

(C)

Report to Secretary

The contract required by subparagraph (A) shall provide that the nongovernmental entity must complete and submit to the Secretary a report containing the findings and conclusions of the review by not later than 180 days after the date on which the Secretary and the nongovernmental entity enter into the contract.

(2)

Report to Congress

Not later than 60 days after the date on which the Secretary receives the report under paragraph (1)(C), the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives the report together with a plan for carrying out the recommendations contained in the report.

4.

Limitation on administrative leave for members of the Senior Executive Service within the Department of Veterans Affairs

(a)

In general

Chapter 7 of title 38, United States Code, as amended by section 3, is further amended by adding after section 717 the following new section:

719.

Administrative leave limitation and report

(a)

Limitation applicable to members of Senior Executive Service within Department of Veterans Affairs

(1)

The Secretary may not place any covered individual on administrative leave, or any other type of paid non-duty status, for more than a total of 14 days during any 365-day period.

(2)
(A)

The Secretary may waive the limitation under paragraph (1) and extend the administrative leave or other paid non-duty status of a covered individual placed on such leave or status under paragraph (1) 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 individual was placed on administrative leave or other paid non-duty status and the reasons for the extension of such leave or status.

(B)

Any detailed explanation submitted under subparagraph (A) shall include the name of the covered individual, the location where the individual is employed, and the individual’s job title.

(3)

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

(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 quarter of any calendar 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 name of any employee of the Department (if any) who has been placed on administrative leave, or any other type of paid non-duty status, for a period longer than seven days during such quarter.

(2)

Any report submitted under paragraph (1) shall include, with respect to any employee listed in such report, the position occupied by the employee, the number of days of such leave, and the reason that such employee was placed on such leave.

.

(b)

Application

(1)

Administrative leave limitation

Section 719(a) of title 38, United States Code, as added by subsection (a), shall apply to any action of removal or transfer under section 713 of such title or title 5, United States Code, commencing on or after the date of the enactment of this Act.

(2)

Report

The report under section 719(b) of such title, as added by subsection (a), shall begin to apply 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 such chapter is amended by adding at the end the following new item:

719. Administrative leave limitation and report.

.

1.

Short title

This Act may be cited as the Increasing the Department of Veterans Affairs Accountability to Veterans Act of 2015.

2.

Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain crimes

(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: reduction of benefits of individuals convicted of certain crimes

(a)

Reduction of annuity for removed member

The covered service of an individual removed from a senior executive 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 performance while employed in such senior executive position.

(b)

Reduction of annuity for retired member

(1)

The Secretary may order that the covered service of an individual who is subject to a removal or transfer from a senior executive 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 senior executive 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 service means, with respect to an individual subject to a removal or transfer from a senior executive position at the Department for performance or misconduct, the period of service beginning on the date that the Secretary determines under such section 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.

(2)

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

(3)

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

(4)

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 senior executive position (as defined in section 713(g) of such title) 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: reduction of benefits of individuals convicted of certain crimes.

.

3.

Independent review and assessment of management training and appraisal at Department of Veterans Affairs

(a)

Review and assessment

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall enter into a contract with a nongovernmental entity to review and assess the following:

(A)

The management training program for individuals employed in senior executive positions of the Department of Veterans Affairs that is being provided as of the date of the enactment of this Act.

(B)

The performance appraisal system of the Department in effect on the day before the date of the enactment of this Act for individuals employed in senior executive positions.

(2)

Elements

The review and assessment required by paragraph (1) shall include the following:

(A)

A comparison of the training provided by the Department to the management training provided for senior executives of other Federal departments and agencies and to the management training provided to senior executives in the private sector.

(B)

Recommendations for improving the program described in paragraph (1)(A).

(C)

Recommendations for improving the system described in paragraph (1)(B).

(D)

An assessment of the ability of the Department to attract and develop employees suitable for senior executive service positions of the Department.

(E)

An assessment of the leadership and management actions of the Department resulting from Department of Veterans Affairs Performance and Accountability Reports submitted in the two most recent fiscal years ending before the date of the enactment of this Act.

(F)

A review of the strategy of the Secretary called Lean Management.

(G)

An assessment of the compliance of the Department with provisions of law added or amended by the GPRA Modernization Act of 2010 (Public Law 111–352) and an explanation of the changes made to the Department and the activities carried out by the Secretary in response to the enactment of such Act.

(H)

An assessment of the results of the most recent Annual Employee Survey carried out pursuant to part 250 of title 5, Code of Federal Regulations.

(I)

An assessment of the efforts of the Secretary to conduct data-driven reviews and develop a results-oriented culture pursuant to part 6 of Circular A-11 of the Office of Management and Budget.

(J)

An assessment of the Department of Veterans Affairs Federal Performance Improvement Officer role and oversight function.

(K)

A survey of the morale of employees and their satisfaction with their work and work environment in each Department of Veterans Affairs staff organization, staff office, and administration as described by Directive 0211 of the Department and provided for in version 3.0a of the Functional Organization Manual of the Department.

(3)

Report to Secretary

The contract required by paragraph (1) shall provide that the nongovernmental entity must complete and submit to the Secretary a report containing the findings and conclusions of the review by not later than 180 days after the date on which the Secretary and the nongovernmental entity enter into the contract.

(b)

Report to Congress

Not later than 60 days after the date on which the Secretary receives the report under subsection (a)(3), the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives the report together with a plan for carrying out the recommendations contained in the report.

(c)

Senior executive position defined

In this section, the termsenior executive position has the meaning given that term in section 713(g) of title 38, United States Code.

4.

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.

.

5.

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.

.

6.

Accountability of managers for hiring well-qualified people

(a)

Assessment during probationary period

(1)

Determination require

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 manager 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

No employee of the Department serving a probationary period as described in paragraph (1) may continue in that position after the end of the probationary period unless and until the manager of the employee has made an affirmative determination under such paragraph.

(b)

Supervisors

With respect to any employee of the Department who is serving a probationary period at a supervisory position in 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 manager of an employee serving a probationary period shall hold the manager 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.

7.

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.

8.

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.

9.

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.

.

10.

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.

.

11.

Restoration of prior reporting fee multipliers

During the one-year period beginning on September 26, 2016, the second sentence of subsection (c) of section 3684 of title 38, United States Code, shall be applied—

(1)

by substituting $10 for $12; and

(2)

by substituting $13 for $15.

December 9, 2016

Reported with an amendment