A House committee on Thursday advanced a measure that would make it easier for federal agencies to suspend or fire their senior executives, saying it would allow agencies to remove “incompetent” executives.
The Senior Executive Service Accountability Act -- introduced by Rep. Tim Walberg, R-Mich. -- would bring sweeping changes to SES oversight. House Oversight and Government Reform Committee Democrats voiced several concerns with the bill, but ultimately agreed to work with their Republican counterparts before the legislation moves to the full House rather than offer amendments.
The committee also approved a measure -- the Federal Records Accountability Act -- that would require agencies to fire any employee found by an inspector general to have manipulated official records. The legislation would also require all emails, instant messages and text messages sent by a federal employee from an official government device or about official government business to be preserved. Democrats went along with that bill after their concerns about due process rights were quelled.
Committee Chairman Darrell Issa, R-Calif., an original cosponsor of the SES bill, said federal agencies should operate more like the private sector, where employees can be terminated immediately.
The bill would “bring needed accountability to the senior executive corps by allowing agencies to remove incompetent executives,” Issa said.
Walberg said his bill was not meant to disparage senior executives, but was simply an effort to recognize the influence they have.
“This is not an attack on SES,” Walberg said. “We have much respect for what they do and the leadership they provide.”
Still, Democrats felt the bill went too far. Rep. Stephen Lynch, D-Mass., said a provision to place employees facing termination on “mandatory leave” -- which would remove employees from their jobs with pay, but deduct from the employees’ accrued annual leave while appeals were being processed and adjudicated -- was unconstitutional. Lynch argued taking employees’ leave triggered the guarantee of due process rights. The bill would retroactively give the accrued leave back to only those employees who won their appeals.
Carol Bonosaro, president of the Senior Executives Association, wrote a letter to committee members Thursday urging a “no” vote on the legislation. She called the mandatory leave provision “yet another attempt to punish employees before they have been found guilty.”
Del. Eleanor Holmes Norton, D-D.C., said a provision in the bill to cut the window for a negatively affected employee to issue an appeal from 30 days to 15 was unfair. Agencies, Norton said, have all the time they need to consult with their attorneys and compile a case against an employee, and employees should have at least 30 days to hire their own lawyers and craft a defense.
Both Norton and Lynch offered amendments to rectify their perceived problems with the bill, but withdrew them in favor of future negotiations with Republicans.
SEA found several additional elements of the bill problematic: The bill would make senior executives eligible for 14-day suspensions without pay, bringing them in line with most non-SES federal employees. Bonosaro said this opens the door for political appointees, who work more directly with SES-ers than General Schedule employees, to issue politically motivated punishments without any third-party review.
Another provision would add a category for cause to fire an SES employee. Currently, senior executives can be fired for three reasons: misfeasance, or poor performance; malfeasance, or misconduct; and nonfeasance, or the failure to complete assigned duties. The bill would add a fourth, more broad, reason, labeled as “such cause as would promote the efficiency of the service.” SEA said agency leadership does not need more avenues to fire senior executives.
The relative rarity of firing federal senior executives “is not because tools do not exist to hold employees accountable,” Bonosaro wrote. “Rather, it appears that they are not being used either because the senior executive isn’t engaging in misconduct or poor performance, or because political leadership isn’t willing to use the tools. It does not make a difference how many tools you add if leadership is not trained and willing to use them.”
The legislation would extend the probationary period for all senior executives from one year to two. Many of the procedural hurdles that prevent agencies from immediately firing senior executives do not apply when the employees are in their probationary periods. SEA said there is no evidence the extension is “necessary or useful.”
The bill would require each agency to provide a written justification for each SES position it maintains, including the “specific result expected from each position.” However, Bonosaro said agencies sometimes keep more position slots than they need at a given moment to provide flexibility for unforeseen events.
SEA proposed a much simpler process for reforming SES oversight.
“Rather than adding and changing the current laws, SEA encourages the committee to work with stakeholders to ensure that existing laws are being used and applied appropriately,” Bonosaro wrote. “This could be accomplished through mandatory supervisor training, onboarding for political appointees, and the creation of a straightforward guide to holding employees accountable.”