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H.R. 1132 (115th): Political Appointee Burrowing Prevention Act

The text of the bill below is as of Nov 26, 2018 (Reported by Senate Committee).


II

Calendar No. 673

115th CONGRESS

2d Session

H. R. 1132

[Report No. 115–387]

IN THE SENATE OF THE UNITED STATES

March 7, 2018

Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs

November 26, 2018

Reported by , with an amendment and an amendment to the title

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

AN ACT

To amend title 5, United States Code, to provide for a 2-year prohibition on employment in a career civil service position for any former political appointee, and for other purposes.

1.

Short title

This Act may be cited as the Political Appointee Burrowing Prevention Act.

2.

Limitation on employment of political appointees in career civil service positions

(a)

In general

Subchapter I of chapter 31 of title 5, United States Code, is amended by adding at the end the following:

3115.

Employment of political appointees

(a)

Appointment approval required

(1)

In general

The head of an agency may not appoint any individual described in paragraph (5) to a career position within the agency without receiving prior written approval from the Associate Director of Merit Systems Accountability and Compliance, consistent with the requirements of this subsection.

(2)

Request

The head of an agency shall submit a request to the Associate Director to approve the appointment of any individual described in paragraph (5) to a career position. Any such request shall include certification by the head of the agency to the Associate Director that the appointment is necessary for the agency to meet its mission.

(3)

Review and determination

The Associate Director shall review any request received pursuant to paragraph (2) and deny any such request unless the Associate Director determines that the appointment process with respect to the request was fair, open, and free from political influence. If the Associate Director makes that determination, the Associate Director may approve the request.

(4)

Notification to Congress

With respect to any request approved under paragraph (3), the Associate Director shall, not less than five days before the date the Associate Director provides approval to the head of the requesting agency, provide 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 the agency certification under paragraph (2) and the agency head’s rationale for that certification.

(5)

Covered individuals

An individual described in this paragraph is—

(A)

a political appointee;

(B)

a former political appointee who held any political position during the 5-year period before the date of the request described in paragraph (2); or

(C)

at the discretion of the Director of the Office of Personnel Management, a former political appointee who held any political position before the five-year period described in subparagraph (B).

(b)

Restriction on appointment

(1)

In general

Notwithstanding any other law, rule, or regulation, during the 2-year period following the date a political appointee leaves or departs from a political position, such appointee may not be appointed to any career position in the civil service.

(2)

Exception

Paragraph (1) shall not apply to a political appointee who has not personally and substantially participated in any particular matter while employed in a political position.

(c)

Application

Nothing in this section shall be construed to restrict the appointment of an individual who is—

(1)

entitled to reinstatement under section 3593(b); or

(2)

eligible for reinstatement under section 3593(a).

(d)

Definitions

In this section—

(1)

the term agency has the meaning given the term Executive agency in section 105;

(2)

the term Associate Director means the Associate Director of Merit Systems Accountability and Compliance at the Office of Personnel Management;

(3)

the term political appointee means an individual serving in an appointment of any duration to a political position;

(4)

the term political position means—

(A)

a position with respect to which appointment is made—

(i)

by the President; or

(ii)

by the President, by and with the advice and consent of the Senate;

(B)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character;

(C)

a position described under sections 5312 through 5316 (relating to the Executive Schedule); and

(D)

a general position in the Senior Executive Service during such time as it is filled by—

(i)

a noncareer appointee, as defined in paragraph (7) of section 3132(a); or

(ii)

a limited term appointee or limited emergency appointee, as defined in paragraphs (5) and (6) of section 3132(a), who is serving under a political appointment.

(5)

the term career position means—

(A)

a position in the competitive service filled by career or career-conditional appointment;

(B)

a position in the excepted service filled by an appointment of equivalent tenure as a position described in subparagraph (A);

(C)

a career reserved position, as defined in paragraph (8) of section 3132(a), in the Senior Executive Service; or

(D)

a general position in the Senior Executive Service when filled by a career appointee, as defined in section 3132(a)(4);

(6)

the term participated means an action taken as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action; and

(7)

the term particular matter includes any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding.

.

(b)

Clerical amendment

The table of sections of chapter 31 of title 5, United States Code, is amended by adding after the item relating to section 3114 the following:

3115. Employment of political appointees.

.

(c)

Application

(1)

Appointment requests

Section 3115(a) of title 5, United States Code, as added by subsection (a), shall apply to any appointment or request for appointment described in such section submitted to the Associate Director of Merit Systems Accountability and Compliance after the date of enactment of this Act.

(2)

Limitation on appointments

Section 3115(b) of title 5, United States Code, as added by subsection (a), shall apply to any individual who leaves or departs from a political position (as that term is defined in section 3115(c)(2) of such title, as added by such subsection) after the date of enactment of this Act.

(d)

Regulations required

The Director of the Office of Personnel Management shall issue regulations necessary to carry out this Act. Such regulations shall include guidance on the definition of the term personally and substantially participated in a particular matter in section 3115(b)(2) of title 5, United States Code, as added by subsection (a), consistent with section 2641.201 of title 5, Code of Federal Regulations.

1.

Short title

This Act may be cited as the Political Appointee Burrowing Prevention Act.

2.

Limitation on employment of political appointees in career civil service positions

(a)

In general

Subchapter I of chapter 31 of title 5, United States Code, is amended by adding at the end the following:

3117.

Employment of political appointees

(a)

Appointment approval required

(1)

In general

The head of an agency may not appoint a covered individual to a career position within the agency without receiving prior written approval from the Associate Director, consistent with the requirements of this subsection.

(2)

Request

If the head of an agency wishes to appoint a covered individual to a career position, the head of the agency shall submit a request to the Associate Director to approve the appointment, which shall include a certification by the head of the agency to the Associate Director that—

(A)

the career position would not involve confidential, policy-determining, policy-making, or policy-advocating responsibilities (unless the career position is in the Senior Executive Service);

(B)

the appointment process was based on merit after a fair and open competition; and

(C)

the appointment process did not give any preference or special advantage to the covered individual based on a prior political appointment, political influence, or political affiliation.

(3)

Review and determination

(A)

In general

The Associate Director shall—

(i)

review each request received pursuant to paragraph (2); and

(ii)

make a favorable or unfavorable determination whether, with respect to the request, the position classification and qualifications requirements and the appointment process were fair, open, and free from political influence.

(B)

Approval

If the Associate Director makes a favorable determination under subparagraph (A)(ii), the Associate Director may approve the request.

(C)

Denial

If the Associate Director makes an unfavorable determination under subparagraph (A)(ii), the Associate Director shall deny the request.

(4)

Notification to Congress

With respect to any request approved under paragraph (3), the Associate Director shall, not later than 5 days before the date the Associate Director provides the approval to the head of the requesting agency, submit 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 the certification under paragraph (2) relating to the request and the rationale of the head of the agency for the certification.

(b)

Probationary period

(1)

In general

A covered individual shall complete a 2-year period of probation before an appointment to a career position in the competitive service approved under subsection (a) becomes final.

(2)

Exception

Paragraph (1) shall not apply to—

(A)

a political appointee who has not personally and substantially participated in any particular policy-making activity or similar matter while employed in a political position; or

(B)

a political appointee who has previously held a career position in the competitive service and successfully completed a probationary period for that position under section 3321.

(c)

Application

Nothing in this section shall be construed to restrict the appointment of an individual who is—

(1)

entitled to reinstatement under section 3593(b); or

(2)

eligible for reinstatement under section 3593(a).

(d)

Definitions

In this section—

(1)

the term agency has the meaning given the term Executive agency in section 105;

(2)

the term Associate Director means—

(A)

the Associate Director of Merit Systems Accountability and Compliance of the Office of Personnel Management; or

(B)

if the Associate Director described in subparagraph (A) is not responsible for carrying out the authorities under section 1104(b)(2), the Associate Director of the Office of Personnel Management responsible for carrying out such authorities;

(3)

the term career position means—

(A)

a position in the competitive service filled by a career or career-conditional appointment;

(B)

a position in the excepted service filled by an appointment of equivalent tenure as a position described in subparagraph (A);

(C)

a career reserved position, as defined in paragraph (8) of section 3132(a), in the Senior Executive Service; or

(D)

a general position in the Senior Executive Service filled by a career appointee, as defined in section 3132(a)(4);

(4)

the term covered individual means—

(A)

a political appointee;

(B)

a former political appointee who held any political position during the 5-year period before the date of the request described in subsection (a)(2); or

(C)

at the discretion of the Director of the Office of Personnel Management, a former political appointee who held any political position before the 5-year period described in subparagraph (B);

(5)

the term participated means an action taken as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action;

(6)

the term particular matter includes any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding;

(7)

the term political appointee means an individual serving in an appointment of any duration to a political position; and

(8)

the term political position means—

(A)

a position with respect to which appointment is made—

(i)

by the President; or

(ii)

by the President, by and with the advice and consent of the Senate;

(B)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character;

(C)

a position described under sections 5312 through 5316 (relating to the Executive Schedule); or

(D)

a general position in the Senior Executive Service filled by—

(i)

a noncareer appointee, as defined in paragraph (7) of section 3132(a); or

(ii)

a limited term appointee or limited emergency appointee, as defined in paragraphs (5) and (6) of section 3132(a), who is serving under a political appointment.

.

(b)

Clerical amendment

The table of sections of chapter 31 of title 5, United States Code, is amended by adding after the item relating to section 3116 the following:

3117. Employment of political appointees.

.

(c)

Application

(1)

Appointment requests

Section 3117(a) of title 5, United States Code, as added by subsection (a), shall apply to any appointment or request for appointment described in such section submitted to the Associate Director of Merit Systems Accountability and Compliance after the date of enactment of this Act.

(2)

Limitation on appointments

Section 3117(b) of title 5, United States Code, as added by subsection (a), shall apply to any individual who leaves or departs from a political position (as that term is defined in section 3117 of such title, as added by such subsection) after the date of enactment of this Act.

(d)

Regulations required

The Director of the Office of Personnel Management, in consultation with the Office of Special Counsel, shall issue regulations necessary to carry out this Act and the amendments made by this Act, which shall include guidance on the definition of the term personally and substantially participated in a particular policy-making activity or similar matter in section 3117(b)(2) of title 5, United States Code, as added by subsection (a), consistent with section 2641.201 of title 5, Code of Federal Regulations.

Amend the title so as to read: An Act to amend title 5, United States Code, to appropriately limit employment in a career civil service position for political appointees and former political appointees, and for other purposes..

November 26, 2018

Reported with an amendment and an amendment to the title