[Senate Report 115-387]
[From the U.S. Government Publishing Office]
Calendar No. 673
115th Congress } { Report
SENATE
2d Session } { 115-387
_______________________________________________________________________
POLITICAL APPOINTEE BURROWING PREVENTION ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1132
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 26, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
Margaret E. Daum, Minority Staff Director
Charles A. Moskowitz, Minority Senior Legislative Counsel
Thomas J.R. Richards, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 673
115th Congress } { Report
SENATE
2d Session } { 115-387
======================================================================
POLITICAL APPOINTEE BURROWING PREVENTION ACT
_______
November 26, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1132]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1132) 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,
having considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and an amendment to
the title and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and the Need for Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............6
I. Purpose and Summary
The purpose of H.R. 1132 is to ensure the hiring process
for the Federal workforce is free from political influence.
This Act requires the Office of Personnel Management (OPM) to
review requests for a current or former political appointee to
convert to a career appointment in the civil service and
determine whether or not the conversion to a career position is
free from political influence. This Act would also make any
political appointee who converts to a career position subject
to a two-year probationary period.
II. Background and the Need for Legislation
Presidential administrations have the authority to hire
individuals outside of the competitive service for political
positions that ``may involve advocacy of Administration
policies and programs and the incumbents usually have a close
and confidential working relationship with the agency head or
other key officials.''\1\ This hiring authority allows an
administration to hire individuals without following the
required procedures for announcing position openings, receiving
applications for the position, and assessing and selecting
applicants.\2\ Such political positions are also not required
to complete a one-year probationary period before the
appointment is complete, unlike a career appointment in the
competitive service.\3\
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\1\S. Comm. on Homeland Sec. & Governmental Affairs, U.S. Gov't
Policy and Supporting Positions, S. Prt. 114-26, iii (Dec. 1, 2016).
\2\See 5 U.S.C. 3301-30e. See also 5 C.F.R. 2.1.
\3\5 U.S.C. 3321. See also 5 C.F.R. 2.4.
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In December 2016, there were 8,358 noncompetitive,
political appointments in the Federal Government.\4\ Political
appointments generally expire at the end of an
Administration.\5\ However, some political appointees seek a
career appointment in the competitive service, also known as
political conversions.\6\
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\4\S. Comm. on Homeland Sec. & Governmental Affairs, supra note 1
at 216.
\5\Gov't Accountability Off., GAO-10-688, Personnel Practices:
Conversions of Employees from Political to Career Positions May 2005-
May 2009 1 (June 28, 2010).
\6\Id. at 11.
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The Government Accountability Office (GAO) stated, ``the
ability to convert political employees to career positions is
an appropriate and valuable means of achieving a highly skilled
workforce.''\7\ GAO also noted:
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\7\Id.
[T]hese conversions must conform to the merit system
principles requiring that employees be selected solely
on the basis of merit. Sometimes, circumstances
surrounding conversions can raise questions as to
whether the individuals selected experienced favoritism
or enjoyed an unfair advantage in the merit system
selection process, even the appearance of which could
adversely compromise the integrity of the system.\8\
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\8\Gov't Accountability Off., GAO-16-859, Office of Personnel
Management: Actions Are Needed to Help Ensure the Completeness of
Political Conversion Data and Adherence to Policy 1 (Sept. 30, 2016).
OPM is responsible for ensuring that political conversions
adhere to the merit system principles.\9\ Before 2010, OPM
required agencies to first seek OPM approval before hiring a
political appointee to a career position in the competitive
service during a presidential election year.\10\ OPM expanded
this approval requirement to apply for political conversions at
any time and at career competitive service and career excepted
service positions.\11\ The Edward ``Ted'' Kaufman and Michael
Leavitt Presidential Transitions Improvements Act of 2015
requires OPM to report annually to Congress on political
conversion requests.\12\ During the last year of a President's
term, OPM must submit these reports to Congress on a quarterly
basis.\13\
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\9\5 C.F.R. 5.2.
\10\Memorandum from John Berry, Director, Off. of Personnel Mgmt.,
to Heads of Executive Departments and Agencies, Political Appointees
and Career Civil Service Positions (Nov. 5, 2009).
\11\Id.
\12\The Edward ``Ted'' Kaufman and Michael Leavitt Presidential
Transitions Improvements Act of 2015, Pub. L. No. 114-36, 4, 130 Stat.
301, 305-307 (Mar. 18, 2016).
\13\Id.
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There is no statutory or regulatory requirement for
agencies to obtain OPM approval before selecting a political
appointee to a career position. In 2016, GAO found that 17
political appointees in 8 different agencies were converted to
a career position without OPM approval.\14\ From December 2016
through December 2017, OPM received 27 political conversion
requests, 6 of which were sent after the agency hired the
political appointee to the career position.\15\ Of the 27
requests, OPM denied 8--or approximately 25 percent--of the
requests, finding it was unable to ``conclude the appointment
was free of political influence and complied with merit system
principles and applicable civil service laws and
regulations.''\16\
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\14\Gov't Accountability Off., supra note 8 at 9.
\15\Letter from Dr. Jeff Pon, Director, Off. of Personnel Mgmt., to
Senator Ron Johnson, Chairman, S. Comm. on Homeland Sec. and
Governmental Affairs (Apr. 4, 2018).
\16\Id.
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H.R. 1132, as amended by the Committee, would ensure that
political conversions adhere to the merit system principles and
are free from political influence by requiring agencies to
submit political conversion requests to OPM for approval before
selecting a political appointee for a career position in the
Federal service. This Act would require reporting to Congress
on each political conversion request, and would also require a
two-year probationary period for any political appointee who
converts to a career appointment if such appointment would be
the political appointee's first career position in the Federal
civil service.
III. Legislative History
H.R. 1132 was introduced on February 16, 2017, by
Representatives Ken Buck (R-CO-4), Ted Lieu (D-CA-33) and Jared
Polis (D-CO-2). Representative Pete Session (R-TX-32) was added
as a co-sponsor to the Act on February 28, 2017. The Act as
amended was passed by the House of Representatives on March 6,
2018, by voice vote. The Act was received in the Senate and
referred to the Committee on Homeland Security and Governmental
Affairs on March 7, 2018.
The Committee considered H.R. 1132 at a business meeting on
September 26, 2018. Chairman Ron Johnson offered an amendment
that clarifies the determinations that the OPM Director must
make under this Act, eliminates the two-year ban on career
appointments for political appointees, and instead subjects
employees who receive a political conversion to a two-year
probationary period. Chairman Johnson also offered an amendment
to change the title of the Act. The amendments were adopted
favorably by voice vote. The amendments and the legislation, as
amended, were passed by voice vote en bloc with Senators
Johnson, Portman, Lankford, Enzi, Hoeven, McCaskill, Carper,
Heitkamp, Peters, Hassan, Harris, and Jones present.
Consistent with Committee Rule 11, the Committee reports
the Act with a technical amendment by mutual agreement of the
Chairman and Ranking Member.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Short title
This section establishes the short title of the Act as the
``Political Appointee Burrowing Prevention Act.''
Section 2. Limitation on employment of political appointees in career
civil service positions
Subsection (a) establishes a review and approval process
and additional requirements for political conversions. A
current or former political appointee will be prohibited from
converting to a career position in the Federal service without
prior written approval from OPM. To receive approval, an agency
head must submit a request for the political conversion to OPM
that includes a certification that the career position would
not carry out the same or similar responsibilities as that of a
political position, that the political appointee was selected
for the career position based on merit after a fair and open
job competition, and that the hiring process and selection was
free from political considerations or influence. OPM will
review each political conversion request and make a favorable
or unfavorable determination for the request. If OPM makes an
unfavorable determination, the conversion request must be
denied.
Under this subsection, OPM is required to notify Congress
of the approval of any political conversion request, as well as
the rationale of the certification by the agency head. This
subsection also requires an individual approved for a political
conversion to complete a two-year probationary period before
the appointment to the career position becomes final. Political
appointees who completed a probationary period for a career
position prior to their political position are exempt from this
two-year probationary period, as well as any political
appointees whose job responsibilities did not involve political
activities.
This subsection also defines, for the purposes of this Act,
the terms ``agency,'' ``Associate Director,'' ``career
position,'' ``covered individual,'' ``participated,''
``particular matter,'' ``political appointee,'' and ``political
position.''
Subsection (b) amends the table of sections for the
subchapter to add the section created under subsection (a).
Subsection (c) applies the review and approval procedures
and probationary period established under subsection (a) to any
political conversion or request for conversion that occurs
after the date of enactment of this Act. Any political
appointee who leaves Federal service after the date of
enactment of this Act will also be subject to the requirements
established in this Act.
Subsection (d) requires OPM, in consultation with the
Office of Special Counsel (OSC), to issue regulations to carry
out the requirements of this Act. These regulations must also
include guidance on the definition for the term ``personally
and substantially participated in a particular policy-making
activity or similar matter.''
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 24, 2018.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1132, the
Political Appointee Burrowing Prevention Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1132--Political Appointee Burrowing Prevention Act
H.R. 1132 would amend federal law regarding the hiring of
former political appointees, as that term is defined in the
act. In general, H.R. 1132 would expand and build upon the
Office of Personnel Management's (OPM's) current policies and
practices regarding the hiring of political appointees, though
CBO expects the legislation would make some changes to OPM's
processes. Specifically, the act would bar political appointees
from holding civil service positions for two years unless
certain criteria were met. Using information from OPM, CBO
estimates that the cost of implementing H.R. 1132 would not be
significant because it would not significantly change the
government's current employment procedures.
Enacting H.R. 1132 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1132 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 1132 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On November 20, 2017, CBO transmitted a cost estimate for
H.R. 1132 as ordered reported by the House Committee on
Oversight and Government Reform on November 2, 2017. The two
versions of H.R. 1132 address former political appointees
working for the government, but some provisions differ. CBO's
estimated cost of implementing either version is the same.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Act, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART I--EMPLOYEES
* * * * * * *
SUBPART B--EMPLOYMENT AND RETENTION
* * * * * * *
CHAPTER 31--AUTHORITY FOR EMPLOYMENT
* * * * * * *
Subchapter I--Employment Authorities
* * * * * * *
Table of Sections.
Sec. 3101 General Authority to employ.
* * * * * * *
Sec. 3117. Employment of political appointees.
* * * * * * *
SEC. 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, as
defined in paragraphs (5) and (6) of
section 3132(a), who is serving under a
political appointment.
[all]