Panel Approves Bill Making It Easier to Suspend and Fire Senior Execs

Del. Eleanor Holmes Norton, D-D.C., said it was a mistake to apply provisions designed for VA executives to the rest of government. Del. Eleanor Holmes Norton, D-D.C., said it was a mistake to apply provisions designed for VA executives to the rest of government. Andrew Harnik/AP

A House panel approved a bill on Tuesday that would make it easier to discipline and fire senior executives across the federal government.

The Senior Executive Service Accountability Act (H.R. 4358) would make the federal government’s top career officials eligible for one- to 14-day suspensions, and expand the criteria that could be used to justify suspending and firing them. H.R. 4358 would add another reason for removal and suspension defined as “such cause as would promote the efficiency of the service,” as well as expedite the removal and appeal process, and reduce the agency notification to senior executives of an adverse personnel action from 30 days to 15 days. A removal could mean firing, or a demotion from the SES.

Additionally, the bill would require SES members who receive written notice of a pending removal from the civil service to take mandatory annual leave during which they would receive pay, but could not work. If an employee is cleared of wrongdoing, the agency would restore any annual leave under the bill.

Currently, members of the SES can only be suspended for more than 14 days, or removed; must receive 30 days’ advance notice of a proposed suspension; and have the right to reply, and the right to appeal to the Merit Systems Protection Board. Agencies can issue a reprimand in lieu of a suspension for lesser offenses.

Proponents believe the provision allowing for shorter suspensions gives supervisors more flexibility in disciplining senior executives. Opponents of the bill, however, believe it could lead to politically motivated suspensions.

“Allowing political appointees the ability to pressure career senior executives with the threat of a one- to 14-day suspension -- which has no third party review -- opens the door to allow politically motivated adverse actions regardless of whether they are reasonable or not,” said a letter from the Senior Executives Association to the House Oversight and Government Reform Committee, opposing H.R. 4358. “Also, it is not in the government’s best interests to have career executives occupying extraordinarily important managerial positions to be summarily removed for short periods of time from their jobs -- with adverse impacts on day-to-day operations.”

H.R. 4358, which Rep. Tim Walberg, R-Mich., introduced just a few days ago, also would extend the initial probationary period for SES employees from one to two years. Many of the procedural hurdles that prevent agencies from immediately firing senior executives do not apply when the employees are in their probationary periods. The legislation also requires agencies to provide a written justification for each of their SES positions every two years, and give employees a written description of their job performance requirements 30 days before each evaluation period (the SEA did express support for the latter provision regarding job notification of performance requirements).

“Unfortunately scandals perpetuated by senior executive branch officials have shown that some senior leaders fail to meet the standards expected of federal leaders,” Walberg said. “This committee has held numerous hearings on the lack of accountability in the SES, and it is essential to restore the public’s confidence in the executive corps.” Walberg introduced a similar bill that the House passed in 2014; that bill died in the Senate.

Senior executives now can be fired for poor performance, misconduct, or the failure to complete assigned duties within the confines of due process. H.R. 4358 would apply the same provisions affecting senior executives at the Veterans Affairs Department (enacted into law under the 2014 Veterans Access, Choice and Accountability Act) to all senior executives. Under H.R. 4358, agencies could fire or demote SESers immediately; the executive would have seven days to appeal to the MSPB, which in turn would have 21 days for an expedited adjudication

Democrats on the committee challenged the constitutionality of some of the bill’s provisions, including the mandatory leave provision, and said the proposed expedited disciplinary and appeal process for senior executives violated due process.

“I am very open to changes in the Senior Executive Service,” said Del. Eleanor Holmes Norton, D-D.C., who nonetheless objected to several of H.R. 4358’s provisions and offered an unsuccessful amendment to Walberg’s bill.

Norton said she “objected strongly” to the idea that because VA had a “serious crisis” the measures applied to their senior executives should be applied governmentwide. Norton’s amendment would have gotten rid of the bill’s mandatory leave provision, the extended probationary period, the expedited removal measures, and another provision that calls for a mandatory reassignment of senior executives to new jobs within the SES at least once every five years. The reassignment measure, which has appeared in other legislation, would require “the dumping” of senior executives to other places without taking agencies' needs into account, Norton said. President Obama has said he wants the SES to be more mobile.

As for the extended probationary period, we should “not for a moment” extend the probationary period for people who shouldn’t be in the job in the first place, Norton said.

Also on Tuesday, the Oversight and Government Reform Committee approved a bill that would extend the probationary period for Title V federal employees, and members of the SES, from one to two years. Most feds have a probationary period of one year, in which they are considered “at-will” employees, making it easier to fire them if they are not performing. (For some feds, the current probationary period is more than one year.) The fiscal 2016 National Defense Authorization Act extended the probationary period for Defense Department civilian employees from one to two years.

“Extension of the probationary period to two years provides managers with a proper amount of time to assess the performance of an employee,” said Rep. Ken Buck, R-Colo., the bill’s sponsor, during the markup. “There are also positions within the federal government that require training programs, on-the-job training, or a licensing certification component based on the unique characteristics or complexity of the position. In these instances the employee might not perform their full job duties for several months, or even years.”

Committee Democrats opposed the bill. “This committee also has not determined whether a longer probationary period, as opposed to other actions agencies can take, would measurably improve their ability to deal with poor performers and further their mission,” said the panel’s ranking member, Elijah Cummings, D-Md., who argued for a more comprehensive review of the issue, and better training for managers and employees.

The National Active and Retired Federal Employees Association and the Government Managers Coalition took a more nuanced approach. In a letter to the committee, the groups said while the bill was a “step in the right direction,” and that they supported the concept of extending the probationary period for some employees, Buck's approach didn’t give agencies enough flexibility.

“New employees and managers must often master broad and complex procedures and policies to meet their agencies’ missions, necessitating several months of formal training followed by long periods of on-the-job instruction,” the letter said. “To ensure each manager and supervisor oversees a workforce that exhibits the abilities required to execute its objectives, lawmakers must afford federal agencies the latitude to extend the probationary period beyond the current length of only one year for relevant jobs. Similarly, agencies must make better use of the probationary period for new supervisors, managers and executives.”

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