[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1082 Reported in Senate (RS)]
<DOC>
Calendar No. 272
114th CONGRESS
1st Session
S. 1082
To amend title 38, United States Code, to provide for the removal or
demotion of employees of the Department of Veterans Affairs based on
performance or misconduct, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 23, 2015
Mr. Rubio (for himself, Mr. Vitter, Mr. Barrasso, Mr. Toomey, Mr.
Cassidy, Mr. Flake, Mr. Cornyn, Mr. Hatch, Mr. Johnson, Mr. McCain, Mr.
Burr, Mr. Kirk, Mr. Moran, Mr. Tillis, and Ms. Ayotte) introduced the
following bill; which was read twice and referred to the Committee on
Veterans' Affairs
October 19, 2015
Reported by Mr. Isakson, with amendments
[Omit the part struck through and insert the part printed in italic]
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to provide for the removal or
demotion of employees of the Department of Veterans Affairs based on
performance or misconduct, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Veterans Affairs
Accountability Act of 2015''.
SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON PERFORMANCE OR
MISCONDUCT.
(a) In General.--Chapter 7 of title 38, United States Code, is
amended by adding at the end the following new section:
``Sec. 714. Employees: removal or demotion based on performance or
misconduct
<DELETED> ``(a) In General.--The Secretary may remove or demote an
individual who is an employee of the Department if the Secretary
determines the performance or misconduct of the individual warrants
such removal or demotion. If the Secretary so removes or demotes such
an individual, the Secretary may--</DELETED>
<DELETED> ``(1) remove the individual from the civil service
(as defined in section 2101 of title 5); or</DELETED>
<DELETED> ``(2) demote the individual by means of--
</DELETED>
<DELETED> ``(A) a reduction in grade for which the
individual is qualified and that the Secretary
determines is appropriate; or</DELETED>
<DELETED> ``(B) a reduction in annual rate of pay
that the Secretary determines is appropriate.</DELETED>
``(a) In General.--(1) The Secretary may remove or demote an
individual who is an employee of the Department if the Secretary
determines the performance or misconduct of the individual warrants
such removal or demotion.
``(2) A determination under paragraph (1) that the performance or
misconduct of an individual warrants removal or demotion may consist of
a determination of any of the following:
``(A) The individual neglected a duty of the position in
which the individual was employed.
``(B) The individual engaged in malfeasance.
``(C) The individual failed to accept a directed
reassignment or to accompany a position in a transfer of
function.
``(D) The individual violated a policy of the Department.
``(E) The individual violated a provision of law.
``(F) The individual engaged in insubordination.
``(G) The individual over prescribed medication.
``(H) The individual contributed to the purposeful omission
of the name of one or more veterans waiting for health care
from an electronic wait list for a medical facility of the
Department.
``(I) The individual was the supervisor of an employee of
the Department, or was a supervisor of the supervisor, at any
level, who contributed to a purposeful omission as described in
subparagraph (H) and knew, or reasonably should have known,
that the employee contributed to such purposeful omission.
``(J) Such other performance or misconduct as the Secretary
determines warrants the removal or demotion of the individual
under paragraph (1).
``(3) If the Secretary removes or demotes an individual as
described in paragraph (1), the Secretary may--
``(A) remove the individual from the civil service (as
defined in section 2101 of title 5); or
``(B) demote the individual by means of--
``(i) a reduction in grade for which the individual
is qualified and that the Secretary determines is
appropriate; or
``(ii) a reduction in annual rate of pay that the
Secretary determines is appropriate.
``(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any
other provision of law, any individual subject to a demotion under
subsection (a)(2)(A) (a)(3)(B)(i) shall, beginning on the date of such
demotion, receive the annual rate of pay applicable to such grade.
``(2) An individual so demoted may not be placed on administrative
leave or any other category of paid leave during the period during
which an appeal (if any) under this section is ongoing, and may only
receive pay if the individual reports for duty. If an individual so
demoted does not report for duty, such individual shall not receive pay
or other benefits pursuant to subsection (e)(5).
``(c) Notice to Congress.--Not later than 30 days after removing or
demoting an individual under subsection (a), the Secretary shall submit
to the Committees on Veterans' Affairs of the Senate and House of
Representatives notice in writing of such removal or demotion and the
reason for such removal or demotion.
``(d) Procedure.--(1) The procedures under section 7513(b) of title
5 and chapter 43 of such title shall not apply to a removal or demotion
under this section.
``(2)(A) Subject to subparagraph (B) and subsection (e), any
removal or demotion under subsection (a) may be appealed to the Merit
Systems Protection Board under section 7701 of title 5.
``(B) An appeal under subparagraph (A) of a removal or demotion may
only be made if such appeal is made not later than seven days after the
date of such removal or demotion.
``(e) Expedited Review by Administrative Law Judge.--(1) Upon
receipt of an appeal under subsection (d)(2)(A), the Merit Systems
Protection Board shall refer such appeal to an administrative law judge
pursuant to section 7701(b)(1) of title 5. The administrative law judge
shall expedite any such appeal under such section and, in any such
case, shall issue a decision not later than 45 days after the date of
the appeal.
``(2) Notwithstanding any other provision of law, including section
7703 of title 5, the decision of an administrative judge under
paragraph (1) shall be final and shall not be subject to any further
appeal.
``(3) In any case in which the administrative judge cannot issue a
decision in accordance with the 45-day requirement under paragraph (1),
the removal or demotion is final. In such a case, the Merit Systems
Protection Board shall, within 14 days after the date that such removal
or demotion is final, submit to Congress and the Committees on
Veterans' Affairs of the Senate and House of Representatives a report
that explains the reasons why a decision was not issued in accordance
with such requirement.
``(4) The Merit Systems Protection Board or administrative judge
may not stay any removal or demotion under this section.
``(5) During the period beginning on the date on which an
individual appeals a removal from the civil service under subsection
(d) and ending on the date that the administrative judge issues a final
decision on such appeal, such individual may not receive any pay,
awards, bonuses, incentives, allowances, differentials, student loan
repayments, special payments, or benefits.
``(6) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board, and to any
administrative law judge to whom an appeal under this section is
referred, such information and assistance as may be necessary to ensure
an appeal under this subsection is expedited.
``(f) Whistleblower Protection.--(1) In the case of an individual
seeking corrective action (or on behalf of whom corrective action is
sought) from the Office of Special Counsel based on an alleged
prohibited personnel practice described in section 2302(b) of title 5,
the Secretary may not remove or demote such individual under subsection
(a) without the approval of the Special Counsel under section 1214(f)
of title 5.
``(2) The Office of Special Counsel shall establish--
``(A) a mechanism to expedite cases for corrective action
under paragraph (1); and
``(B) a standard for the approval under paragraph (1) of
removal or demotion under subsection (a), which may include a
determination as to whether the removal or demotion is a
prohibited personnel action.
``(3)(A) Notwithstanding any other provision of law, the Special
Counsel may terminate an investigation of a prohibited personnel
practice alleged by an individual in connection with a removal or
demotion of the individual under subsection (a) only after the Special
Counsel provides to the individual a written statement of the reasons
for the termination of the investigation.
``(B) The written statement provided to the individual under
subparagraph (A) may not be admissible as evidence in any judicial or
administrative proceeding without the consent of such individual.
<DELETED> ``(f) Limitation on Removal or Demotion.--In the case of
an individual seeking corrective action (or on behalf of whom
corrective action is sought) from the Office of Special Counsel based
on an alleged prohibited personnel practice described in section
2302(b) of title 5, the Secretary may not remove or demote such
individual under subsection (a) without the approval of the Special
Counsel under section 1214(f) of title 5.</DELETED>
``(g) Relation to Other Provisions of Law.--(1) The authority
provided by this section is in addition to the authority provided by
subchapter V of chapter 75 of title 5 and chapter 43 of such title.
``(2) Subchapter V of chapter 74 of this title shall not apply to
any action under this section.
``(h) Definitions.--In this section:
``(1) The term `individual' means an individual occupying a
position at the Department of Veterans Affairs but does not
include--
``(A) an individual, as that term is defined in
section 713(g)(1); or
``(B) a political appointee.
``(2) The term `grade' has the meaning given such term in
section 7511(a) of title 5.
``(3) The term `misconduct' includes neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.
``(4) The term `political appointee' means an individual
who is--
``(A) employed in a position described under
sections 5312 through 5316 of title 5, (relating to the
Executive Schedule);
``(B) is a limited term appointee, limited
emergency appointee, or noncareer appointee in the
Senior Executive Service, as defined under paragraphs
(5), (6), and (7), respectively, of section 3132(a) of
title 5; or
``(C) is employed in a position of a confidential
or policy-determining character under schedule C of
subpart C of part 213 of title 5 of the Code of Federal
Regulations.''.
(b) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new
item:
``714. Employees: removal or demotion based on performance or
misconduct.''.
(2) Conforming.--Section 4303(f) of title 5, United States
Code, is amended--
(A) by striking ``or'' at the end of paragraph (2);
(B) by striking the period at the end of paragraph
(3) and inserting ``, or''; and
(C) by adding at the end the following:
``(4) any removal or demotion under section 714 of title
38.''.
SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF DEPARTMENT OF
VETERANS AFFAIRS.
(a) In General.--Chapter 7 of title 38, United States Code, as
amended by section 2, is further amended by adding at the end the
following new section:
``Sec. 715. Probationary period for employees
``(a) In General.--Notwithstanding sections 3321 and 3393(d) of
title 5, the appointment of a covered employee shall become final only
after such employee has served a probationary period of 540 days. The
Secretary may extend a probationary period under this subsection at the
discretion of the Secretary.
``(b) Covered Employee.--In this section, the term `covered
employee'--
``(1) means any individual--
``(A) appointed to a permanent position within the
competitive service at the Department; or
``(B) appointed as a career appointee (as that term
is defined in section 3132(a)(4) of title 5) within the
Senior Executive Service at the Department; and
``(2) does not include any individual with a probationary
period prescribed by section 7403 of this title.
``(c) Permanent Hires.--Upon the expiration of a covered employee's
probationary period under subsection (a), the supervisor of the
employee shall determine whether the appointment becomes final based on
regulations prescribed for such purpose by the Secretary.''.
(b) Application.--The amendment made by subsection (a) shall apply
to any covered employee (as that term is defined in section 715 of
title 38, United States Code, as added by such subsection) appointed
after the date of enactment of this section.
(c) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
such chapter, as amended by section 2, is further amended by
adding at the end the following new item:
``715. Probationary period for employees.''.
(2) Conforming.--Title 5, United States Code, is amended--
(A) in section 3321(c), by--
(i) striking ``Service or'' and inserting
``Service,''; and
(ii) inserting at the end before the period
the following: ``, or any individual covered by
section 715 of title 38''; and
(B) in section 3393(d), by adding at the end after
the period the following: ``The preceding sentence
shall not apply to any individual covered by section
715 of title 38.''.
<DELETED>SEC. 4. COMPTROLLER GENERAL STUDY OF DEPARTMENT TIME AND SPACE
USED FOR LABOR ORGANIZATION ACTIVITY.</DELETED>
<DELETED> (a) Study Required.--Not later than 180 days after the
date of the enactment of this Act, the Comptroller General of the
United States shall conduct a study on the amount of time spent by
Department of Veterans Affairs employees carrying out organizing
activities relating to labor organizations and the amount of space in
Department facilities used for such activities. The study shall include
a cost-benefit analysis of the use of such time and space for such
activities.</DELETED>
<DELETED> (b) Report to Congress.--Not later than 90 days after the
completion of the study required under subsection (a), the Comptroller
General shall submit to the Committee on Veterans' Affairs of the
Senate and the Committee on Veterans' Affairs of the House of
Representatives a report on the results of the study.</DELETED>
Calendar No. 272
114th CONGRESS
1st Session
S. 1082
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to provide for the removal or
demotion of employees of the Department of Veterans Affairs based on
performance or misconduct, and for other purposes.
_______________________________________________________________________
October 19, 2015
Reported with amendments