House Set to Vote on Bill Making It Easier to Fire Senior Execs

This story has been updated. 

The House will vote Tuesday evening on legislation that would make it easier to discipline and fire senior executives across the federal government.

The Senior Executive Service Accountability Act (H.R. 5169) would make the federal government’s top career officials eligible for one- to 14-day suspensions without pay, and expand the criteria that can be used to fire them. Currently, members of the SES only can be suspended for more than 14 days, or fired. Those who are suspended continue to receive pay, must receive 30 days’ advance notice of a proposed suspension, 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.

The new provision allowing for shorter suspensions gives supervisors more flexibility in disciplining senior executives. Opponents, however, believe it could lead to politically-motivated suspensions.

The final bill also includes a provision that would require SES employees put on administrative leave during investigations and ultimately fired if the Merit Systems Protection Board sides with the agency, to pay back their salary and accrued annual leave for that period of time to the agency. In addition, the legislation would get rid of a provision in the current law which allows SES employees removed for performance and placed in a General Schedule job from retaining their SES salary. 

The vote is expected Tuesday evening under a suspension of the rules. The House Tuesday afternoon is debating the fiscal 2015 continuing resolution keeping the government open past Sept. 30. An amendment to that bill, crafted by House Armed Services Chairman Howard “Buck” McKeon, R-Calif., would allow the Defense and State departments to train and equip Syrian rebels to fight against the terrorist group ISIS.

The SES accountability measure 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. H.R. 5169 also would require agencies to provide a written justification for each of their SES positions and give employees a written description of their job performance requirements 30 days before each evaluation period.

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. 5169 would add another reason defined as “such cause as would promote the efficiency of the service.” As of September 2013, there were 7,190 career senior executives in the federal government, according to data from the Office of Personnel Management.

The SES bill -- introduced by Rep. Tim Walberg, R-Mich., and cosponsored by House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif. – significantly changes SES oversight. H.R. 5169 was inspired by Lois Lerner, the senior executive at the heart of the IRS controversy who continued to collect pay during the investigation and retired at the height of the scandal. Lerner has continued to deny any wrongdoing in the matter. It’s not the first time, however, that lawmakers have sought to make it easier to fire top career officials who, unlike appointees, have strong job protections within the civil service system so that they can’t be fired for political reasons.

In 2013, legislation circulating in both chambers would have allowed the government to put those top career employees on leave without pay for three months pending the outcome of an investigation. The legislation, which Congress did not pass, directed agencies to fire, suspend without pay, or reinstate employees at the end of the 90 days. President Obama this summer signed into law a bill that makes it easier for the Veterans Affairs Department to discipline and fire senior executives engaged in misconduct or wrongdoing.

The Senior Executives Association sent a Sept. 15 letter to members of the House, urging them to vote against the bill, questioning the legality of the legislation.

“Laws already exist to allow agencies to hold employees accountable,” wrote SEA President Carol Bonosaro. “Supervisors at all levels need to understand the policies and have the will to use them and political leadership needs to support their doing so. Nonetheless, SEA welcomes the opportunity to engage in a serious attempt at identifying what accountability policies work, which do not and whether problems arise from the policies themselves versus implementation.”

Bonosaro emphasized that SEA understands the desire to hold employees accountability and protect taxpayer money, but “trying to do so through unnecessary – or worse, unconstitutional – policy changes is not the answer.”

Lawmakers Tuesday night will vote on an amended version of the bill. The original version included provisions that reduced agency notification to employees of an adverse personnel action from 30 days to 15 days, and another that required SES employees who receive written notice of a pending termination removal from the civil service to take mandatory annual leave during which they would receive pay, but could not work. Those provisions were dropped from the bill’s final version.