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104th Congress Rept. 104-820
HOUSE OF REPRESENTATIVES
2d Session Part 1
_______________________________________________________________________
PRESIDENTIAL AND EXECUTIVE OFFICE ACCOUNTABILITY ACT
_______
September 24, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3452]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform and Oversight, to whom was
referred the bill (H.R. 3452) to make certain laws applicable
to the Executive Office of the President, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
I. Background and Need for the Legislation........................15
II. Legislative Hearings and Committee Actions.....................23
III. Committee Hearings and Written Testimony.......................24
IV. Explanation of the Bill........................................26
V. Compliance with Rule XI........................................39
VI. Budget Analysis and Projections................................39
VII. Cost Estimate of the Congressional Budget Office...............39
VIII. Inflationary Impact Statement..................................44
IX. Changes in Existing Law........................................44
X. Committee Recommendation.......................................64
XI. Congressional Accountability Act: Public Law 104-1.............64
XII. Additional Views...............................................65
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Presidential and
Executive Office Accountability Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Extension of certain rights and protections to presidential
offices.
Sec. 3. Financial officers within the Executive Office of the
President.
Sec. 4. Amendment to definition of ``special government employee''.
Sec. 5. Applicability of future employment laws.
Sec. 6. Repeal of section 320 of the Government Employee Rights Act of
1991.
Sec. 7. Political affiliation.
Sec. 8. Establishment of Inspector General for Executive Office of the
President.
SEC. 2. EXTENSION OF CERTAIN RIGHTS AND PROTECTIONS TO PRESIDENTIAL
OFFICES.
(a) In General.--Title 3, United States Code, is amended by adding at
the end the following:
``CHAPTER 5--EXTENSION OF CERTAIN RIGHTS AND PROTECTIONS TO
PRESIDENTIAL OFFICES
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``401. Definitions.
``402. Application of laws.
``SUBCHAPTER II--EXTENSION OF RIGHTS AND PROTECTIONS
``Part A--Employment Discrimination, Family and Medical Leave, Fair
Labor Standards, Employee Polygraph Protection, Worker Adjustment and
Retraining, Employment and Reemployment of Veterans, and Intimidation
``411. Rights and protections under title VII of the Civil
Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, the Rehabilitation Act
of 1973, and title I of the Americans with
Disabilities Act of 1990.
``412. Rights and protections under the Family and Medical
Leave Act of 1993.
``413. Rights and protections under the Fair Labor Standards
Act of 1938.
``414. Rights and protections under the Employee Polygraph
Protection Act of 1988.
``415. Rights and protections under the Worker Adjustment and
Retraining Notification Act.
``416. Rights and protections relating to veterans' employment
and reemployment.
``417. Prohibition of intimidation or reprisal.
``Part B--Public Access Provisions Under the Americans With
Disabilities Act of 1990
``420. Rights and protections under the Americans with
Disabilities Act of 1990.
``Part C--Occupational Safety and Health Act of 1970
``425. Rights and protections under the Occupational Safety and
Health Act of 1970; procedures for remedy of
violations.
``Part D--Labor-Management Relations
``430. Application of chapter 71 of title 5, relating to
Federal service labor-management relations;
procedures for remedy of violations.
``Part E--General
``435. Generally applicable remedies and limitations.
``SUBCHAPTER III--ADMINISTRATIVE AND JUDICIAL DISPUTE-RESOLUTION
PROCEDURES
``451. Procedure for consideration of alleged violations.
``452. Counseling and mediation.
``453. Election of proceeding.
``454. Appropriate agencies.
``455. Judicial review.
``456. Civil action.
``457. Judicial review of regulations.
``458. Other judicial review prohibited.
``459. Effect of failure to issue regulations.
``460. Expedited review of certain appeals.
``461. Payments.
``462. Confidentiality.
``463. Definitions.
``SUBCHAPTER IV--EFFECTIVE DATE
``471. Effective date.
``Subchapter I--General Provisions
``SEC. 401. DEFINITIONS.
``Except as otherwise specifically provided in this chapter, as used
in this chapter:
``(1) Board.--The term `Board' means the Merit Systems
Protection Board under chapter 12 of title 5.
``(2) Covered employee.--The term `covered employee' means
any employee of an employing office.
``(3) Employee.--The term `employee' includes an applicant
for employment and a former employee.
``(4) Employing office.--The term `employing office' means--
``(A) each office, agency, or other component of the
Executive Office of the President;
``(B) the Executive Residence at the White House; and
``(C) the official residence (temporary or otherwise)
of the Vice President.
``SEC. 402. APPLICATION OF LAWS.
``The following laws shall apply, as prescribed by this chapter, to
all employing offices (including employing offices within the meaning
of section 411, to the extent prescribed therein):
``(1) The Fair Labor Standards Act of 1938.
``(2) Title VII of the Civil Rights Act of 1964.
``(3) The Americans with Disabilities Act of 1990.
``(4) The Age Discrimination in Employment Act of 1967.
``(5) The Family and Medical Leave Act of 1993.
``(6) The Occupational Safety and Health Act of 1970.
``(7) Chapter 71 (relating to Federal service labor-
management relations) of title 5.
``(8) The Employee Polygraph Protection Act of 1988.
``(9) The Worker Adjustment and Retraining Notification Act.
``(10) The Rehabilitation Act of 1973.
``(11) Chapter 43 (relating to veterans' employment and
reemployment) of title 38.
``Subchapter II--Extension of Rights and Protections
``PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR
LABOR STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
``SEC. 411. RIGHTS AND PROTECTIONS UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE REHABILITATION ACT OF 1973, AND
TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF
1990.
``(a) Discriminatory Practices Prohibited.--All personnel actions
affecting covered employees shall be made free from any discrimination
based on--
``(1) race, color, religion, sex, or national origin, within
the meaning of section 703 of the Civil Rights Act of 1964;
``(2) age, within the meaning of section 15 of the Age
Discrimination in Employment Act of 1967; or
``(3) disability, within the meaning of section 501 of the
Rehabilitation Act of 1973 and sections 102 through 104 of the
Americans with Disabilities Act of 1990.
``(b) Remedy.--
``(1) Civil rights.--The remedy for a violation of subsection
(a)(1) shall be--
``(A) such damages as would be appropriate if awarded
under section 706(g) of the Civil Rights Act of 1964;
and
``(B) such compensatory damages as would be
appropriate if awarded under section 1977 of the
Revised Statutes, or as would be appropriate if awarded
under sections 1977A(a)(1), 1977A(b)(2), and,
irrespective of the size of the employing office,
1977A(b)(3)(D) of the Revised Statutes.
``(2) Age discrimination.--The remedy for a violation of
subsection (a)(2) shall be--
``(A) such damages as would be appropriate if awarded
under section 15(c) of the Age Discrimination in
Employment Act of 1967; and
``(B) such liquidated damages as would be appropriate
if awarded under section 7(b) of such Act.
In addition, the waiver provisions of section 7(f) of such Act
shall apply to covered employees.
``(3) Disabilities discrimination.--The remedy for a
violation of subsection (a)(3) shall be--
``(A) such damages as would be appropriate if awarded
under section 505(a)(1) of the Rehabilitation Act of
1973 or section 107(a) of the Americans with
Disabilities Act of 1990; and
``(B) such compensatory damages as would be
appropriate if awarded under sections 1977A(a)(2),
1977A(a)(3), 1977A(b)(2), and, irrespective of the size
of the employing office, 1977A(b)(3)(D) of the Revised
Statutes.
``(c) Definitions.--Except as otherwise specifically provided in this
section, as used in this section:
``(1) Covered employee.--The term `covered employee' means
any employee of a unit of the executive branch, including the
Executive Office of thePresident, whether appointed by the
President or by any other appointing authority in the executive branch,
who is not otherwise entitled to bring an action under any of the
statutes referred to in subsection (a), but does not include any
individual--
``(A) whose appointment is made by and with the
advice and consent of the Senate;
``(B) who is appointed to an advisory committee, as
defined in section 3(2) of the Federal Advisory
Committee Act; or
``(C) who is a member of the uniformed services.
``(2) Employing office.--The term `employing office', with
respect to a covered employee, means the office, agency, or
other entity in which the covered employee is employed (or
sought employment or was employed in the case of an applicant
or former employee, respectively).
``(d) Applicability.--Subsections (a) through (c), and section 417
(to the extent that it relates to any matter under this section), shall
apply with respect to violations occurring on or after the effective
date of this chapter.
``SEC. 412. RIGHTS AND PROTECTIONS UNDER THE FAMILY AND MEDICAL LEAVE
ACT OF 1993.
``(a) Family and Medical Leave Rights and Protections Provided.--
``(1) In general.--The rights and protections established by
sections 101 through 105 of the Family and Medical Leave Act of
1993 shall apply to covered employees.
``(2) Definitions.--For purposes of the application described
in paragraph (1)--
``(A) the term `employer' as used in the Family and
Medical Leave Act of 1993 means any employing office;
and
``(B) the term `eligible employee' as used in the
Family and Medical Leave Act of 1993 means a covered
employee who has been employed in any employing office
for 12 months and for at least 1,250 hours of
employment during the previous 12 months.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such damages, including liquidated damages, as would be appropriateif
awarded under paragraph (1) of section 107(a) of the Family and Medical
Leave Act of 1993.
``SEC. 413. RIGHTS AND PROTECTIONS UNDER THE FAIR LABOR STANDARDS ACT
OF 1938.
``(a) Fair Labor Standards.--
``(1) In general.--The rights and protections established by
subsections (a)(1) and (d) of section 6, section 7, and section
12(c) of the Fair Labor Standards Act of 1938 shall apply to
covered employees.
``(2) Interns and volunteers.--For the purposes of this
section, the term `covered employee' does not include an intern
or a volunteer as defined in regulations under subsection (c).
``(3) Compensatory time.--Except as provided in regulations
under subsection (c)(3), covered employees may not receive
compensatory time in lieu of overtime compensation.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such damages, including liquidated damages, as would be appropriate if
awarded under section 16(b) of the Fair Labor Standards Act of 1938.
``(c) Regulations To Implement Section.--
``(1) In general.--The President shall issue regulations to
implement this section.
``(2) Agency regulations.--Except as provided in paragraph
(3), the regulations issued under paragraph (1) shall be the
same as substantive regulations promulgated by the Secretary of
Labor to implement the statutory provisions referred to in
subsection (a) except insofar as the President may determine,
for good cause shown and stated together with the regulation,
that a modification of such regulations would be more effective
for the implementation of the rights and protections under this
section.
``(3) Irregular work schedules.--The President shall issue
regulations for covered employees whose work schedules directly
depend on the schedule of the President or the Vice President
that shall be comparable to the provisions in the Fair Labor
Standards Act of 1938 that apply to employees who have
irregular work schedules.
``SEC. 414. RIGHTS AND PROTECTIONS UNDER THE EMPLOYEE POLYGRAPH
PROTECTION ACT OF 1988.
``(a) Polygraph Practices Prohibited.--No employing office may
require a covered employee to take a lie detector test where such a
test would be prohibited if required by an employer under paragraph
(1), (2), or (3) of section 3 of the Employee Polygraph Protection Act
of 1988. In addition, the waiver provisions of section 6(d) of such Act
shall apply to covered employees.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such damages as would be appropriate if awarded under section 6(c)(1)
of the Employee Polygraph Protection Act of 1988.
``(c) Regulations To Implement Section.--
``(1) In general.--The President shall issue regulations to
implement this section.
``(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsections (a) and (b)
except insofar as the President may determine, for good cause
shown and stated together with the regulation, that a
modification of such regulations would be more effective for
the implementation of the rights and protections under this
section.
``SEC. 415. RIGHTS AND PROTECTIONS UNDER THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT.
``(a) Worker Adjustment and Retraining Notification Rights.--
``(1) In general.--Except as provided in paragraph (2), no
employing office shall be closed or mass layoff ordered within
the meaning of section 3 of the Worker Adjustment and
Retraining Notification Act until the end of a 60-day period
after the employing office serves written notice of such
prospective closing or layoff to representatives of covered
employees or, if there are no representatives, to covered
employees.
``(2) Exception.--
``(A) In general.--In the event that a President
(hereinafter in this paragraph referred to as the
`previous President') does not succeed himself in
office as a result of the election of a new President,
no notice or waiting period shall be required under
paragraph (1) with respect to the separation of any
individual described in subparagraph (B), if such
separation occurs pursuant to a closure or mass layoff
ordered after the term of the new President commences.
``(B) Description of individuals.--An individual
described in this subparagraph is any covered employee
serving pursuant to an appointment made during--
``(i) the term of office of the previous
President; or
``(ii) any term, earlier than the term
referred to in clause (i), during which such
previous President served as President or Vice
President.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such damages as would be appropriate if awarded under paragraphs (1),
(2), and (4) of section 5(a) of the Worker Adjustment and Retraining
Notification Act.
``(c) Regulations To Implement Section.--
``(1) In general.--The President shall issue regulations to
implement this section.
``(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsection (a) except
insofar as the President may determine, for good cause shown
and stated together with the regulation, that a modification of
such regulations would be more effective for the implementation
of the rights and protections under this section.
``SEC. 416. RIGHTS AND PROTECTIONS RELATING TO VETERANS' EMPLOYMENT AND
REEMPLOYMENT.
``(a) Employment and Reemployment Rights of Members of the Uniformed
Services.--
``(1) In general.--It shall be unlawful for an employing
office to--
``(A) discriminate, within the meaning of subsections
(a) and (b) of section 4311 of title 38, against an
eligible employee;
``(B) deny to an eligible employee reemployment
rights within the meaning of sections 4312 and 4313 of
title 38; or
``(C) deny to an eligible employee benefits within
the meaning of sections 4316, 4317, and 4318 of title
38.
``(2) Definition.--For purposes of this section, the term
`eligible employee' means a covered employee performing service
in the uniformed services, within the meaning of section
4303(13) of title 38, whose service has not been terminated
upon the occurrence of any of the events enumerated in section
4304 of such title.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such damages as would be appropriate if awarded under paragraphs (1)
and (2)(A) of section 4323(c) of title 38.
``(c) Regulations To Implement Section.--
``(1) In general.--The President shall issue regulations to
implement this section.
``(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsection (a) except to
the extent that the President may determine, for good cause
shown and stated together with the regulation, that a
modification of such regulations would be more effective for
the implementation of the rights and protections under this
section.
``SEC. 417. PROHIBITION OF INTIMIDATION OR REPRISAL.
``(a) In General.--It shall be unlawful for an employing office to
intimidate, take reprisal against, or otherwise discriminate against,
any covered employee because the covered employee has opposed any
practice made unlawful by this chapter, or because the covered employee
has initiated proceedings, made a charge, or testified, assisted, or
participated in any manner in a hearing or other proceeding under this
chapter.
``(b) Remedy.--A violation of subsection (a) may be remedied by any
legal remedy available to redress the practice opposed by the covered
employee or other violation of law as to which the covered employee
initiated proceedings, made a charge, or engaged in other conduct
protected under subsection (a).
``(c) Definitions.--For purposes of applying this section with
respect to any practice or other matter to which section 411 relates,
the terms `employing office' and `covered employee' shall each be
considered to have the meaning given to it by such section.
``PART B--PUBLIC ACCESS PROVISIONS UNDER THE AMERICANS WITH
DISABILITIES ACT OF 1990
``SEC. 420. RIGHTS AND PROTECTIONS UNDER THE AMERICANS WITH
DISABILITIES ACT OF 1990.
``(a) Rights and Protections.--The rights and protections against
discrimination in the provision of public services and accommodations
established by sections 201, 202, and 204, and sections 302, 303, and
309, of the Americans with Disabilities Act of 1990 shall apply, to the
extent that public services, programs, or activities are provided, with
respect to the White House and its appurtenant grounds and gardens, the
Old Executive Office Building, the New Executive Office Buildings, and
any other facility to the extent that offices are provided for
employees of the Executive Office of the President.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
such remedy as would be appropriate if awarded under sections 203 or
308 of the Americans with Disabilities Act of 1990, as the case may be,
except that, with respect to any claim of employment discrimination,
the exclusive remedy shall be under section 411 of this title. A remedy
under the preceding sentence shall be enforced in accordance with
applicable provisions of such sections 203 or 308, as the case may be.
``(c) Definition.--For purposes of the application under this section
of the Americans with Disabilities Act of 1990, the term `public
entity' as used in such Act, means, to the extent that public services,
programs, or activities are provided, the White House and its
appurtenant grounds and gardens, the Old Executive Office Building, the
New Executive Office Buildings, and any other facility to the extent
that offices are provided for employees of the Executive Office of the
President.
``PART C--OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
``SEC. 425. RIGHTS AND PROTECTIONS UNDER THE OCCUPATIONAL SAFETY AND
HEALTH ACT OF 1970; PROCEDURES FOR REMEDY OF
VIOLATIONS.
``(a) Occupational Safety and Health Protections.--
``(1) In general.--Each employing office and each covered
employee shall comply with the provisions of section 5 of the
Occupational Safety and Health Act of 1970.
``(2) Definitions.--For purposes of the application under
this section of the Occupational Safety and Health Act of
1970--
``(A) the term `employer' as used in such Act means
an employing office; and
``(B) the term `employee' as used in such Act means a
covered employee.
``(b) Remedy.--The remedy for a violation of subsection (a) shall be
an order to correct the violation, including such order as would be
appropriate if issued under section 13(a) of the Occupational Safety
and Health Act of 1970.
``(c) Procedures.--
``(1) Requests for inspections.--Upon written request of any
employing office or covered employee, the Secretary of Labor
shall have the authority to inspect and investigate places of
employment under the jurisdiction of employing offices in
accordance with subsections (a), (d), (e), and (f) of section 8
of the Occupational Safety and Health Act of 1970.
``(2) Citations, notices, and notifications.--The Secretary
of Labor shall have the authority, in accordance with sections
9 and 10 of the Occupational Safety and Health Act of 1970, to
issue--
``(A) a citation or notice to any employing office
responsible for correcting a violation of subsection
(a); or
``(B) a notification to any employing office that the
Secretary of Labor believes has failed to correct a
violation for which a citation has been issued within
the period permitted for its correction.
``(3) Hearings and review.--If after issuing a citation or
notification, the Secretary of Labor determines that a
violation has not been corrected--
``(A) the citation and notification shall be deemed a
final order (within the meaning of section 10(b) of the
Occupational Safety and Health Act of 1970) if the
employer fails to notify the Secretary of Labor within
15 days (excluding Saturdays, Sundays, and Federal
holidays) after receipt of the notice that he intends
to contest the citation or notification; or
``(B) opportunity for a hearing before the
Occupational Safety and Health Review Commission shall
be afforded in accordance with section 10(c) of the
Occupational Safety and Health Act of 1970, if the
employer gives timely notice to the Secretary that he
intends to contest the citation or notification.
``(4) Variance procedures.--An employing office may request
from the Secretary of Labor an order granting a variance from a
standard made applicable by this section, in accordance with
sections 6(b)(6) and 6(d) of the Occupational Safety and Health
Act of 1970.
``(5) Judicial review.--Any person or employing office
aggrieved by a final decision of the Occupational Safety and
Health Review Commission under paragraph (3) or the Secretary
of Labor under paragraph (4) may file a petition for review
with the United States Court of Appeals for the Federal Circuit
pursuant to section 455.
``(6) Compliance date.--If new appropriated funds are
necessary to correct a violation of subsection (a) for which a
citation is issued, or to comply with an order requiring
correction of such a violation, correction or compliance shall
take place as soon as possible, but not later than the end of
the fiscal year following the fiscal year in which the citation
is issued or the order requiring correction becomes final and
not subject to further review.
``(d) Regulations To Implement Section.--
``(1) In general.--The President shall issue regulations to
implement this section.
``(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsection (a) except to
the extent that the President may determine, for good cause
shown and stated together with the regulation, that a
modification of such regulations would be more effective for
the implementation of the rights and protections under this
section.
``(3) Employing office responsible for correction.--The
regulations issued under paragraph (1) shall include a method
of identifying, for purposes of this section and for different
categories of violations of subsection (a), the employing
office responsible for correction of a particular violation.
``PART D--LABOR-MANAGEMENT RELATIONS
``SEC. 430. APPLICATION OF CHAPTER 71 OF TITLE 5, RELATING TO FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS; PROCEDURES FOR
REMEDY OF VIOLATIONS.
``(a) Labor-Management Rights.--Chapter 71 of title 5 shall apply to
employing offices and to covered employees and representatives of those
employees, except that covered employees shall not have a right to
reinstatement pursuant to section 7118(a)(7)(C) or 7123 of title 5.
``(b) Definition.--For purposes of the application under this section
of chapter 71 of title 5, the term `agency' as used in such chapter
means an employing office.
``PART E--GENERAL
``SEC. 435. GENERALLY APPLICABLE REMEDIES AND LIMITATIONS.
``(a) Attorney's Fees.--If a covered employee, with respect to any
claim under this chapter, or a qualified person with a disability, with
respect to any claim under section 420, is a prevailing party in any
proceeding under section 453(1), 455, or 456, the administrative agency
or court, as the case may be, may award attorney's fees, expert fees,
and any other costs as would be appropriate if awarded under section
706(k) of the Civil Rights Act of 1964.
``(b) Interest.--In any proceeding under section 453(1), 455, or 456,
the same interest to compensate for delay in payment shall be made
available as would be appropriate if awarded under section 717(d) of
the Civil Rights Act of 1964.
``(c) Civil Penalties and Punitive Damages.--Except as otherwise
provided in this chapter, no civil penalty or punitive damages may be
awarded with respect to any claim under this chapter.
``(d) Exclusive Procedure.--
``(1) In general.--Except as provided in paragraph (2), no
person may commence an administrative or judicial proceeding to
seek a remedy for the rights and protections afforded by this
chapter except as provided in this chapter.
``(2) Veterans.--A covered employee under section 416 may
also utilize any provisions of chapter 43 of title 38 that are
applicable to that employee.
``(e) Scope of Remedy.--Only a covered employee who has undertaken
and completed the procedures described in section 452 may be granted a
remedy under part A of this subchapter.
``(f) Construction.--
``(1) Definitions and exemptions.--Except where inconsistent
with definitions and exemptions provided in this chapter, the
definitions and exemptions in the laws made applicable by this
chapter shall apply under this chapter.
``(2) Size limitations.--Notwithstanding paragraph (1),
provisions in the laws made applicable under this chapter
(other than paragraphs (2) and (3) of section 2(a) of the
Worker Adjustment and Retraining Notification Act) determining
coverage based on size, whether expressed in terms of numbers
of employees, amount of business transacted, or other measure,
shall not apply in determining coverage under this chapter.
``(g) Definitions Relating to Section 411.--For purposes of applying
this section with respect to any practice or other matter to which
section 411 relates, the terms `employing office' and `covered
employee' shall each be considered to have the meaning given to it by
such section.
``Subchapter III--Administrative and Judicial Dispute-Resolution
Procedures
``SEC. 451. PROCEDURE FOR CONSIDERATION OF ALLEGED VIOLATIONS.
``The procedure for consideration of alleged violations of part A of
subchapter II consists of--
``(1) counseling and mediation as provided in section 452;
and
``(2) election, as provided in section 453, of either--
``(A) an administrative proceeding as provided in
section 453(1) and judicial review as provided in
section 455; or
``(B) a civil action in a district court of the
United States as provided in section 456.
``SEC. 452. COUNSELING AND MEDIATION.
``(a) In General.--The President shall by regulation establish
procedures substantially similar to those under sections 402 and 403 of
the Congressional Accountability Act of 1995 for the counseling and
mediation of alleged violations of a law made applicable under part A
of subchapter II.
``(b) Exhaustion Requirement.--A covered employee who has not
exhausted counseling and mediation under subsection (a) shall be
ineligible to make any election under section 453 or otherwise pursue
any further form of relief under this subchapter.
``SEC. 453. ELECTION OF PROCEEDING.
``Not later than 90 days after a covered employee receives notice of
the end of the period of mediation, but no sooner than 30 days after
receipt of such notification, such covered employee may either--
``(1) file a complaint with the appropriate administrative
agency, as determined under section 454; or
``(2) file a civil action in accordance with section 456 in
the United States district court for the district in which the
employee is employed or for the District of Columbia.
``SEC. 454. APPROPRIATE AGENCIES.
``(a) In General.--Except as provided in subsection (b), the
appropriate agency under this section with respect to an alleged
violation of part A of subchapter II shall be the Board.
``(b) Exceptions.--
``(1) Discrimination.--For purposes of any action arising
under section 411 (or any action alleging intimidation,
reprisal, or discrimination under section 417 relating to any
practice made unlawful under section 411), the appropriate
agency shall be the Equal Employment Opportunity Commission,
and the complaint in any such action shall be processed under
the same administrative procedures as any such complaint filed
by any other Federal employee.
``(2) Mixed cases.--However, in the case of any covered
employee (within the meaning of section 411(c)(1)) who has been
affected by an action which an employee of an executive agency
may appeal to the Board and who alleges that a basis for the
action was discrimination prohibited by section 411 (or any
action alleging intimidation, reprisal, or discrimination under
section 417 relating to any practice made unlawful under
section 411), the initial appropriate agency shall be the
Board, and such matter shall thereafter be processed in
accordance with section 7702 (a)-(d) (disregarding paragraph
(2) of such subsection (a)) and (f) of title 5.
``(3) Judicial review.--Notwithstanding any other provision
of law (including any provision of law referenced in paragraph
(1) or (2)), judicial review of any administrative decision
under this subsection shall be by the court specified in
section 455.
``SEC. 455. JUDICIAL REVIEW.
``(a) In General.--The United States Court of Appeals for the Federal
Circuit shall have jurisdiction over a petition for review of a final
decision under this chapter of--
``(1) an appropriate agency (as determined under section
454);
``(2) the Federal Labor Relations Authority under chapter 71
of title 5, notwithstanding section 7123 of such title; or
``(3) the Secretary of Labor or the Occupational Safety and
Health Review Commission, made under part C of subchapter II.
``(b) Filing Deadline.--Any petition for review under this section
must be filed within 30 days after the date the petitioner receives
notice of the final decision.
``SEC. 456. CIVIL ACTION.
``(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over any civil action commenced under section 453(2)
and this section by a covered employee.
``(b) Parties.--The defendant shall be the employing office alleged
to have committed the violation, or in which the violation is alleged
to have occurred.
``(c) Jury Trial.--Any party may demand a jury trial where a jury
trial would be available in an action against a private defendant under
the relevant law made applicable by this chapter. In any case in which
a violation of section 411 is alleged, the court shall not inform the
jury of the maximum amount of compensatory damages available under
section 411(b)(1) or 411(b)(3).
``SEC. 457. JUDICIAL REVIEW OF REGULATIONS.
``In any proceeding brought under section 455 or 456 in which the
application of a regulation issued under this chapter is at issue, the
court may review the validity of the regulation in accordance with the
provisions of subparagraphs (A) through (D) of section 706(2) of title
5. If the court determines that the regulation is invalid, the court
shall apply, to the extent necessary and appropriate, the most relevant
substantive executive agency regulation promulgated to implement the
statutory provisions with respect to which the invalid regulation was
issued. Except as provided in this section, the validity of regulations
issued under this chapter is not subject to judicial review.
``SEC. 458. OTHER JUDICIAL REVIEW PROHIBITED.
``Except as expressly authorized by this chapter, the compliance or
noncompliance with the provisions of this chapter and any action taken
pursuant to this chapter shall not be subject to judicial review.
``SEC. 459. EFFECT OF FAILURE TO ISSUE REGULATIONS.
``In any proceeding under section 453(1), 455, or 456, if the
President has not issued a regulation on a matter for which this
chapter requires a regulation to be issued, the administrative agency
or court, as the case may be, shall apply, to the extent necessary and
appropriate, the most relevant substantive executive agency regulation
promulgated to implement the statutory provision at issue in the
proceeding.
``SEC. 460. EXPEDITED REVIEW OF CERTAIN APPEALS.
``(a) In General.--An appeal may be taken directly to the Supreme
Court of the United States from any interlocutory or final judgment,
decree, or order of a court upon the constitutionality of any provision
of this chapter.
``(b) Jurisdiction.--The Supreme Court shall, if it has not
previously ruled on the question, accept jurisdiction over the appeal
referred to in subsection (a), advance the appeal on the docket, and
expedite the appeal to the greatest extent possible.
``SEC. 461. PAYMENTS.
``A judgment, award, or compromise settlement against the United
States under this chapter (including any interest and costs) shall be
paid--
``(1) under section 1304 of title 31, if it arises out of an
action commenced in a district court of the United States (or
any appeal therefrom); or
``(2) out of amounts otherwise appropriated or available to
such office, if it arises out of an administrative proceeding
under this chapter (or any appeal therefrom).
``SEC. 462. CONFIDENTIALITY.
``(a) Counseling.--All counseling under section 452 shall be strictly
confidential, except that, with the consent of the covered employee,
the employing office may be notified.
``(b) Mediation.--All mediation under section 452 shall be strictly
confidential.
``SEC. 463. DEFINITIONS.
``For purposes of applying this subchapter, the terms `employing
office' and `covered employee' shall each, to the extent that section
411 is involved, be considered to have the meaning given to it by such
section.
``Subchapter IV--Effective Date
``SEC. 471. EFFECTIVE DATE.
``This chapter shall take effect 1 year after the date of the
enactment of the Presidential and Executive Office Accountability
Act.''.
(b) Regulations.--Appropriate measures shall be taken to ensure that
any regulations needed to implement chapter 5 of title 3, United States
Code, as amended by this section, shall be in effect by the effective
date of such chapter.
(c) Technical Amendment.--The table of chapters for title 3, United
States Code, is amended by adding at the end the following:
``5. Extension of Certain Rights and Protections to 401''.
Presidential Offices.
SEC. 3. FINANCIAL OFFICERS WITHIN THE EXECUTIVE OFFICE OF THE
PRESIDENT.
(a) Chief Financial Officer.--Section 901 of title 31, United States
Code, is amended by adding at the end the following:
``(c)(1) There shall be within the Executive Office of the President
a Chief Financial Officer, who shall be appointed by the President from
among individuals meeting the standards described in subsection (a)(3).
``(2) The Chief Financial Officer under this subsection shall have
the same authority and shall perform the same functions as apply in the
case of a Chief Financial Officer under section 902.
``(3) The Director of the Office of Management and Budget shall
prescribe any regulations which may be necessary to ensure that, for
purposes of implementing paragraph (2), the Executive Office of the
President shall, to the extent practicable and appropriate, be treated
(including for purposes of financial statements under section 3515) in
the same way as an agency described in subsection (b).''.
(b) Deputy Chief Financial Officer.--Section 903 of title 31, United
States Code, is amended by adding at the end the following:
``(c)(1) There shall be within the Executive Office of the President
a Deputy Chief Financial Officer, who, notwithstanding any provision of
subsection (b), shall be appointed by the President from among
individuals meeting the standards described in section 901(a)(3).
``(2) The Deputy Chief Financial Officer under this subsection shall
have the same authority and shall perform the same functions as apply
in the case of the Deputy Chief Financial Officer of an agency
described in subsection (b).''.
(c) Technical and Conforming Amendments.--
(1) Title 31, united states code.--Section 503(a) of title
31, United States Code, is amended--
(A) in paragraph (7) by striking ``respectively.''
and inserting ``respectively (excluding any officer
appointed under section 901(c) or 903(c)).''; and
(B) in paragraph (8) by striking ``Officers.'' and
inserting ``Officers (excluding any officer appointed
under section 901(c) or 903(c)).''.
(2) Designation of agency head.--The President shall
designate an employee of the Executive Office of the President
(other than the Chief Financial Officer or Deputy Chief
Financial Officer appointed under the amendments made by
subsections (a) and (b), respectively), who shall be deemed
``the head of the agency'' for purposes of carrying out section
902 of title 31, United States Code, with respect to the
Executive Office of the President.
SEC. 4. AMENDMENT TO DEFINITION OF ``SPECIAL GOVERNMENT EMPLOYEE''.
(a) Amendment to Section 202(a).--Subsection (a) of section 202 of
title 18, United States Code, is amended to read as follows:
``(a) For the purpose of sections 203, 205, 207, 208, and 209 of this
title the term `special Government employee' shall mean--
``(1) an officer or employee as defined in subsection (c) who
is retained, designated, appointed, or employed in the
legislative or executive branch of the United States
Government, in any independent agency of the United States, or
in the government of the District of Columbia, and who, at the
time of retention, designation, appointment or employment, is
expected to perform temporary duties on a full-time or
intermittent basis for not to exceed one hundred and thirty
days during any period of three hundred and sixty-five
consecutive days;
``(2) a part-time United States commissioner;
``(3) a part-time United States magistrate;
``(4) an independent counsel appointed under chapter 40 of
title 28 and any person appointed by that independent counsel
under section 594(c) of title 28;
``(5) a person serving as a part-time local representative of
a Member of Congress in the Member's home district or State;
and
``(6) a Reserve officer of the Armed Forces, or an officer of
the National Guard of the United States, who is not otherwise
an officer or employee as defined in subsection (c) who is--
``(A) on active duty solely for training
(notwithstanding section 2105(d) of title 5);
``(B) serving voluntarily for not to exceed one
hundred and thirty days during any period of three
hundred and sixty-five consecutive days; or
``(C) serving involuntarily.''.
(b) Amendment to Section 202(c).--Subsection (c) of 202 of title 18,
United States Code, is amended to read as follows:
``(c) The terms `officer' and `employee' in sections 203, 205, 207
through 209, and 218 of this title shall include--
``(1) an individual who is retained, designated, appointed or
employed in the United States Government or in the government
of the District of Columbia, to perform, with or without
compensation and subject to the supervision of the President,
the Vice President, a Member of Congress, a Federal judge or an
officer or employee of the United States or of the government
of the District of Columbia, a Federal or District of Columbia
function under authority of law or an Executive act. As used in
this section, a Federal or District of Columbia function shall
include, but not be limited to--
``(A) supervising, managing, directing or overseeing
a Federal or District of Columbia officer or employee
in the performance of such officer's or employee's
official duties;
``(B) providing regular advice, counsel, or
recommendations to the President, the Vice President, a
Member of Congress, or any Federal or District of
Columbia officer or employee, or conducting meetings
involving any of those individuals, as part of the
Federal or District of Columbia government's internal
deliberative process; or
``(C) obligating funds of the United States or the
District of Columbia;
``(2) a Reserve officer or officer of the National Guard of
the United States who is voluntarily serving a period of
extended active duty in excess of 130 days; and
``(3) the President, the Vice President, a Member of Congress
or a Federal judge only if specified in the section.''.
(c) New Section 202(f).--Section 202 of title 18, United States Code,
is amended by adding at the end the following:
``(f) The terms `officer or employee' and `special Government
employee' as used in sections 203, 205, 207 through 209, and 218, shall
not include enlisted members of the Armed Forces, nor shall they
include an individual who is retained, designated or appointed without
compensation specifically to act as a representative of a non-Federal
(or non-District of Columbia) interest on an advisory committee
established pursuant to the Federal Advisory Committee Act or any
similarly established committee whose meetings are generally open to
the public. The non-Federal interest to be represented must be
specifically set forth in the statute, charter, or Executive act
establishing the committee.''.
SEC. 5. APPLICABILITY OF FUTURE EMPLOYMENT LAWS.
Each Federal law governing employment in the private sector, enacted
later than 12 months after the date of the enactment of this Act, shall
be deemed to apply with respect to ``employing offices'' and ``covered
employees'' (within the meaning of section 401 of title 3, United
States Code, as amended by this Act), unless such law specifically
provides otherwise and expressly cites this section.
SEC. 6. REPEAL OF SECTION 320 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF
1991.
(a) In General.--Section 320 of the Government Employee Rights Act of
1991 is repealed.
(b) Effective Date.--This section shall take effect 1 year after the
date of the enactment of this Act.
(c) Savings Provision.--The repeal under this section shall not
affect proceedings in which the complaint was filed before the
effective date of this section, and orders shall be issued in such
proceedings and appeals shall be taken therefrom as if this section had
not been enacted.
SEC. 7. POLITICAL AFFILIATION.
It shall not be a violation of any provision of section 411 of title
3, United States Code, as amended by this Act, to consider the party
affiliation, or political compatibility with the employing office, of
an employee who is a ``covered employee'' for purposes of such section
411 with respect to employment decisions.
SEC. 8. ESTABLISHMENT OF INSPECTOR GENERAL FOR EXECUTIVE OFFICE OF THE
PRESIDENT.
(a) Establishment of Office.--Section 11 of the Inspector General Act
of 1978 (5 U.S.C. App.) is amended--
(1) in paragraph (1) by inserting ``the President (with
respect only to the Executive Office of the President),'' after
``means''; and
(2) in paragraph (2) by inserting ``the Executive Office of
the President,'' after ``means''.
(b) Appointment of Inspector General.--Not later than 120 days after
the effective date of this section, the President shall nominate an
individual as the Inspector General of the Executive Office of the
President pursuant to the amendments made by subsection (a).
(c) Special Provisions Concerning Inspector General of the Executive
Office of the President.--The Inspector General Act of 1978 (5 U.S.C.
App.) is amended--
(1) by redesignating the second section 8G (regarding a rule
of construction) as section 8I; and
(2) by inserting after the first section 8G (regarding
requirements for Federal entities and designated Federal
entities) the following:
``SEC. 8H. SPECIAL PROVISIONS CONCERNING INSPECTOR GENERAL OF THE
EXECUTIVE OFFICE OF THE PRESIDENT.
``(a) Authority, Direction, and Control of President.--
Notwithstanding the last 2 sentences of section 3(a), the Inspector
General of the Executive Office of the President shall be under the
authority, direction, and control of the President with respect to
audits or investigations, or the issuance of subpoenas, which require
access to information concerning--
``(1) ongoing criminal investigations or proceedings;
``(2) undercover operations;
``(3) the identity of confidential sources, including
protected witnesses;
``(4) deliberations and decisions on policy matters,
including documented information used as a basis for making
policy decisions;
``(5) intelligence or counterintelligence matters; or
``(6) other matters the disclosure of which would constitute
a serious threat to the national security, or would cause
significant impairment to the national interests (including
interests in foreign trade negotiations), of the United States.
``(b) Prohibiting Activities of Inspector General.--With respect to
information described in subsection (a), the President may prohibit the
Inspector General of the Executive Office of the President from
carrying out or completing any audit or investigation, or issuing any
subpoena, after the Inspector General has decided to initiate, carry
out, or complete such audit or investigation or to issue such subpoena,
if the President determines that--
``(1) the disclosure of that information would interfere with
the core functions of the constitutional responsibilities of
the President; and
``(2) the prohibition is necessary to prevent the disclosure
of that information.
``(c) Notice.--
``(1) Notice to inspector general.--If the President makes a
determination referred to in subsection (b)(1) or (2), the
President shall within 30 days notify the Inspector General in
writing stating the reasons for that determination.
``(2) Notice to congress.--Within 30 days after receiving a
notice under paragraph (1), the Inspector General shall
transmit a copy of the notice to each of the Chairman and the
ranking minority party member of the Committee on Government
Reform and Oversight of the House of Representatives, the
Committee on Governmental Affairs of the Senate, and other
appropriate committees or subcommittees of the Congress.
``(d) Semiannual Reports.--
``(1) Information to be included.--The Inspector General of
the Executive Office of the President shall include in each
semiannual report to the President under section 5, at a
minimum--
``(A) a list of the title or subject of each
inspection, investigation, or audit conducted during
the reporting period;
``(B) a statement of whether corrective action has
been completed on each significant recommendation
described in previous semiannual reports, and, in a
case where corrective action has been completed, a
description of such corrective action;
``(C) a certification that the Inspector General has
had full and direct access to all information relevant
to the performance of functions of the Inspector
General;
``(D) a description of all cases occurring during the
reporting period in which the Inspector General could
not obtain documentary evidence relevant to any
inspection, audit, or investigation due to a
determination of the President under subsection (b);
and
``(E) such recommendations as the Inspector General
considers appropriate concerning legislation to promote
economy and efficiency in the administration of
programs and operations undertaken by the Executive
Office of the President, and to detect and eliminate
fraud, waste, and abuse in such programs and
operations.
``(2) Transmission to congress.--Within 30 days after
receiving a semiannual report under section 5 from the
Inspector General of the Executive Office of the President, the
President shall transmit the report to each of the Chairman and
the ranking minority party member of the Committee on
Government Reform and Oversight of the House of Representatives
and the Committee on Governmental Affairs of the Senate with
any comments the President considers appropriate.''.
(d) Effective Date.--This section shall take effect on January 21,
1997.
Short Summary of Legislation
H.R. 3452, the ``Presidential and Executive Office
Accountability Act,'' amends titles 3, 5, 18, and 31 of the
United States Code (U.S.C.) and repeals title 2 U.S.C.
Sec. 1219. It subjects the White House to the same laws that
are applicable to Congress and the private sector. Eleven civil
rights, labor and employment laws are made applicable to the
Executive Office of the President, extending rights and
protections under these laws to covered employees, and
permitting administrative and judicial dispute-resolution
procedures. The bill requires that in the future, all such laws
will automatically apply to the White House unless they are
specifically exempted.
H.R. 3452 will improve accountability and oversight in the
White House. It improves financial management by requiring the
President to appoint a Chief Financial Officer for the
Executive Office of the President. It provides the President
with needed investigative and oversight skills by establishing
an Office of Inspector General in the Executive Office of the
President, with an Inspector General appointed by the
President. It tightens the definition of ``special Government
employee'' to make unofficial advisers more accountable to the
American people.
Major provisions of the bill include:
Equal Employment.--White House employees and certain
other Presidential appointees will be protected from
discrimination based upon race, color, religion, sex,
national origin, age and disability. The applicable
laws are Title VII of the Civil Rights Act of
1964,1 the Age Discrimination in Employment Act of
1967,2 the Rehabilitation Act of 1973,3 and
Title I of the Americans with Disabilities Act of
1990.4
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\1\ 42 U.S.C. 2000e et seq.
\2\ 29 U.S.C. 621 et seq.
\3\ 29 U.S.C. 701 et seq.
\4\ 42 U.S.C. 12101 et seq.
---------------------------------------------------------------------------
Fair Labor Standards--White House employees would be
protected by the Fair Labor Standards Act 5 (FLSA)
which regulates minimum wages and overtime pay. The
bill includes an exception from the provisions of the
FLSA for interns and volunteers.
---------------------------------------------------------------------------
\5\ 29 U.S.C. 201 et seq.
---------------------------------------------------------------------------
Administrative and Judicial Dispute-Resolution
Procedures.--Counseling, mediation, and the election of
either administrative remedies or civil action remedies
before a United States District Court would be allowed.
Complaints would be filed with the Equal Employment
Opportunity Commission or the Merit Systems Protection
Board, as applicable.
Generally Applicable Remedies and Limitations.--
Employees whose rights are violated are entitled to the
same remedies, including, where applicable, liquidated
damages and compensatory damages, as in the private
sector. Remedies available to covered employees include
attorney fees, expert fees, and costs and interest
where applicable, in accordance with the Civil Rights
Act. Remedies available do not include injunctive
relief or punitive damages.
Chief Financial Officer.--The President would be
required to appoint a Chief Financial Officer and a
Deputy Chief Financial Officer for the Executive Office
of the President. The bill provides that, to the extent
practicable and appropriate, the provisions of the
Chief Financial Officers Act of 1990,6 as amended
by the Government Management Reform Act of 1994,7
would apply.
---------------------------------------------------------------------------
\6\ 31 U.S.C. 502(b-f)-504; 901-903.
\7\ Pub. L. No. 103-356.
---------------------------------------------------------------------------
Inspector General.--The President would be required
to appoint an Inspector General for the Executive
Office of the President, and otherwise comply with the
Inspector General Act of 1978,8 as amended. The
bill allows the President to prohibit certain actions
by the Inspector General based on constitutional
powers, national interest, national security or other
relevant considerations.
---------------------------------------------------------------------------
\8\ 5 U.S.C. App. 3.
---------------------------------------------------------------------------
Special Government Employee (SGE).--The bill amends
the definition of ``special Government employee'' in
section 202 of title 18, United States Code. It
tightens the definition to make it clear that informal
advisers may be subject to conflict-of-interest and
financial-disclosure statutes.
Background and Need for Legislation
a. background
There is a general consensus that all employees of public
institutions in the United States must be held accountable for
their actions, including the White House. H.R. 3452 will help
provide accountability. It will also ensure that the Executive
Office of the President has to comply with the same laws that
the rest of the country and Congress have to follow. The bill
applies the following civil rights, labor, and employment laws
to the Executive Office of the President:
The Fair Labor Standards Act of 1938 (29 U.S.C. 201
et seq.);
Title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.);
The Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.);
The Age Discrimination in Employment Act of 1967 (29
U.S.C. 621 et seq.);
The Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.);
The Family and Medical Leave Act of 1993 (29 U.S.C.
2611 et seq.);
The Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.);
Chapter 71 of title 5, United States Code, regulating
Federal Labor-Management relations;
The Employee Polygraph Protection Act of 1988 (29
U.S.C. 2001 et seq.);
The Worker Adjustment and Retraining Notification Act
(29 U.S.C. 2101 et seq.); and
Chapter 43 of title 38, United States Code, regulating
veterans'' employment and reemployment rights.
The Executive Office of the President is a collection of
separate, disparate divisions. Executive Order 8248, of
September 8, 1939 established the divisions of the Executive
Office and defined their functions. Various agencies had been
transferred to the Executive Office of the President by the
President's Reorganization Plans I and II of 1939,\9\ effective
July 1, 1939 under authority of the Reorganization Act of
1939.\10\ At present there are twelve divisions. They are:
---------------------------------------------------------------------------
\9\ 5 U.S.C. App.
\10\ 5 U.S.C. 133-133r, 133t note.
---------------------------------------------------------------------------
The White House Office;
The Executive Residence at the White House;
The Office of the Vice President;
The Office of Policy Development;
The Council of Economic Advisors,
The Council on Environmental Quality and Office of
Environmental Quality;
The National Security Council;
The Office of Administration;
The Office of Management and Budget;
The Office of National Drug Control Policy;
The Office of Science and Technology; and
The Office of the United States Trade Representative.
It is not clear how many employees at the White House are
already covered by civil rights or employment laws. About one
third (currently approximately 550 employees) work in the four
offices closest to the President: the White House Office; the
Office of the Vice President; the Office of Policy Development;
and the Executive Residence. These employees are hired
``without regard to any other provision of law regulating
employment or compensation of persons in the government
service,'' \11\ and serve at the pleasure of the President.
They are often referred to as ``Title 3'' employees. Some Title
3 employees work in the eight other divisions, but most are
Title 5 employees who are covered by most of the workplace
laws, according to testimony provided the committee by the
Director of the Office of Administration, Executive Office of
the President.
---------------------------------------------------------------------------
\11\ 3 U.S.C. 105(b).
---------------------------------------------------------------------------
The Fair Labor Standards Act does not apply to the White
House. A Congressional Research Service American Law Division
(CRS/ALD) memorandum \12\ states that, ``Under the enforcement
scheme of the Act, the Office of Personnel Management (OPM)
would make the initial administrative determination whether the
Act covered any elements of the White House or the Executive
Office of the President. It does not appear that OPM has made
any formal determination of such coverage.''
---------------------------------------------------------------------------
\12\ Memorandum on ``Proposed Presidential and Executive Office
Accountability Act,'' June 21, 1996, Congressional Research Service
American Law Division.
---------------------------------------------------------------------------
The Family and Medical Leave Act of 1993 may already apply
to some White House employees, but a recent judicial
application of Title 3 United States Code Sec. 105 raises
questions about the Act's applicability to the White
House.13 Franklin Reeder, Director of the Office of
Administration, Executive Office of the President, stated in
testimony provided to the committee that, as a matter of
policy, the White House complies with the Family and Medical
Leave Act.\14\
---------------------------------------------------------------------------
\13\ Memorandum on ``Application of Certain Rights and Labor Laws
to White House Employees,'' February 13, 1996, Congressional Research
Service American Law Division.
\14\ Hearing on H.R. 3452 Before the House Committee on Government
Reform and Oversight Subcommittee on Government Management,
Information, and Technology, 104th Cong., 2nd Sess. (1996) (Statement
of Franklin S. Reeder, Director, Office of Administration, Executive
Office of the President).
---------------------------------------------------------------------------
At the same hearing, Mr. Reeder also testified that, as a
matter of policy, the White House is ``already compliant with
the Polygraph Protection Act.''
It is the committee's opinion that these laws from which
the White House is currently exempt should apply as a matter of
law, not only as a matter of policy. It is ironic that at the
very time that President Clinton is pushing to expand the
Family and Medical Leave Act and the Fair Labor Standards Act,
his own employees are not entitled by law to the rights
afforded private sector and Congressional employees.
H.R. 3452 is modeled on the Congressional Accountability
Act of 1995.15 This applied the eleven civil rights,
labor, and workplace laws to employees of the Legislative
Branch of the Federal Government, and established remedies and
procedures for aggrieved employees in instances of violations
of the laws. Some of the eleven laws had previously been
extended to certain employees of the legislative branch, but
the Congressional Accountability Act expanded the scope of
employees covered by the laws and granted a right of judicial
review to all covered employees.
---------------------------------------------------------------------------
\15\ 2 U.S.C. 1301 et seq.
---------------------------------------------------------------------------
The Government Employee Rights Act of 1991 16 had
applied certain provisions of four of the laws to some officers
or employees in the Executive Office of the President. These
were:
---------------------------------------------------------------------------
\16\ 2 U.S.C. 1219.
---------------------------------------------------------------------------
Title VII of the Civil Rights Act of 1964;
The Americans with Disabilities Act of 1990;
The Age Discrimination in Employment Act of 1967; and
The Rehabilitation Act of 1973.
H.R. 3452 repeals the section in the Government Employee
Rights Act of 1991 that provided coverage under the four laws
listed above, since it is, in effect, reapplying them.
Coverage under H.R. 3452 would extend to most Presidential
appointees, except those appointed by the President with Senate
confirmation, those appointed to advisory committees, and
members of a uniformed service. Most White House employees
would be entitled to the same remedies as a private sector
worker, not including injunctive relief or punitive damages.
Employees would have the option (1) of filing an administrative
complaint with the Merit Systems Protection Board, the Federal
Labor Relations Board, the Equal Employment Opportunity
Commission or (2) of seeking redress in Federal court.
This bill also establishes effective redress systems for
employees who believe their rights under any of these laws have
been violated. Following a mandatory period of counseling and
mediation, the employee may choose between an administrative
remedy with judicial review by the United States Court of
Appeals for the Federal Circuit or a judicial remedy before the
appropriate United States district court. The administrative
remedy will be an appeal to the Merit Systems Protection Board
or, in some discrimination cases, the Equal Employment
Opportunity Commission.
H.R. 3452, as originally drafted, included punitive damages
as an available remedy and amended the Congressional
Accountability Act to include punitive damages in the range of
remedies available to employees who could show discrimination.
The Congressional Accountability Act did not include a
provision to allow the award of punitive damages. Employee
grievances under the Congressional Accountability Act are filed
against the office of the Member, not the Member individually.
H.R. 3452 is intended to provide the same treatment to the
Congress and to the Executive Office of the President.
Accordingly, it was unanimously decided that the provisions to
allow punitive damages should be eliminated, both as they
applied to Congress and to the White House.
The Federal Labor Relations Authority will administer
labor-management relations at the White House. The Occupational
Safety and Health Act will be administered by the Secretary of
Labor and the Occupational Safety and Health Review Commission,
as it is in the private sector.
Finally, the bill also places the White House under the
public access provisions of the Americans With Disabilities Act
(ADA). The remedies and enforcement under the ADA would be the
same as if the White House were a private entity.
The bill strengthens accountability by requiring
improvement in management practices. It does this in three
ways. First, it improves financial management by setting up an
office of Chief Financial Officer. Second, it gives the
President a tool to uncover waste, fraud, and abuse by setting
up an Office of Inspector General. Third, it heightens
awareness of conflict-of-interest and other ethical
considerations by clarifying the definition of a ``special
Government employee.''
It applies the Chief Financial Officers Act (CFO Act) to
the White House. H.R. 3452 requires the President to appoint a
Chief Financial Officer (CFO) and, to the fullest extent
practicable, requires compliance by the Executive Office of the
President with the requirements of the CFO Act. The CFO Act
allows departments and agencies flexibility in setting up the
Office of the CFO, and the Executive Office of the President
would have similar flexibility, so long as accountability is
retained, and reports are produced, by a single CFO Office. The
CFO should hold a position in the organization sufficiently
elevated to have access to the President.
On July 23, 1996, Representative Bass (R-NH) introduced
H.R. 3872, the ``White House Inspector General Act of 1996,''
which amends the Inspector General Act of 1978 and would
establish an Office of Inspector General in the Executive
Office of President. At the committee mark-up of H.R. 3452 on
July 25, 1996, Mr. Bass offered H.R. 3872 as an amendment to
H.R. 3452. Mr. Bass explained that the White House Inspector
General (IG), like other IGs in the Executive Branch, would
serve as the principal watchdog of White House financial
management and fiscal resources. He felt that it complemented
H.R. 3452's existing provision applying the Chief Financial
Officer Act to the White House. Establishing a White House IG
will provide future Presidents with a useful tool. The IG will
act as a watchdog, bringing to the President's attention
situations which could cause problems before such problems
arise, and ensuring that controls are in place to prevent
waste, fraud, or abuse.
The bill includes a revised definition of a special
Government employee which would tighten the application of the
definition. It uses a functional test rather than a series of
application criteria. The bill makes it clear that informal,
unpaid advisers would be covered by conflict-of-interest and
financial-disclosure laws.
b. legislative history
On May 14, 1996, Representative John L. Mica (R-FL),
Chairman of the Government Reform and Oversight Committee's
Subcommittee on Civil Service, introduced H.R. 3452 with more
than one hundred cosponsors. The Subcommittee on Government
Management, Information and Technology held a legislative
hearing on the bill on June 15, 1996, and on July 16, marked up
the bill. Several amendments were offered and adopted at the
subcommittee mark-up, and the bill, as amended was approved by
voice vote. Subsequently, the Committee on Government Reform
and Oversight marked up the bill on July 25, approving two
amendments, and reporting it favorably, as amended, on a voice
vote, for consideration by the House of Representatives.
c. need for the legislation
The legislation is intended to satisfy two needs: the need
to improve financial management practices and accountability in
the White House; and the need for the White House to live under
the same laws as Congress and the private sector.
Recent congressional hearings have highlighted some of the
shortcomings in White House financial responsibility. The White
House is not now required to comply with workplace laws that
the rest of the country has to follow. The White House has
little or no controls over its financial and other management
activities. The White House has a history of retaining informal
advisers to the President who are present in the White House on
a regular basis and who affect public policy without having
accountability to the public.
The White House financial operations lack both
accountability and structure.17 The committee believes
that the analysis and reorganization necessary to establish an
Office of Chief Financial Officer in the White House would
provide organizational structure for financial operations.
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\17\ Hearing on H.R. 3452 Before the House Committee on Government
Reform and Oversight Subcommittee on Government Management, Information
and Technology, 104th Cong., 2nd Sess. (1996)(Statement of
Representative John L. Mica).
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The Chief Financial Officers Act was intended to help
Executive Branch agencies improve their financial operations,
and it has been effective in doing so, although much remains to
be done. Extending the application of the CFO Act to the White
House would bring about accountability to financial operations
in the White House.
If there had been a Chief Financial Officer (CFO) and an
Inspector General (IG) in the White House, the unorthodox
accounting practices that prevailed in the White House Travel
Office, which the White House used as justification for firing
longtime employees, would not have been allowed to continue. A
CFO would have provided the Travel Office managers with the
guidance and expert advice they sorely needed, but never
received. An IG would provide oversight and conduct audits and
investigations to root out waste, fraud and abuse.
The White House Communications Agency is one of the
entities contained in the White House complex although it is
not a division of the Executive Office of the President. It is
staffed primarily with personnel from the Department of Defense
and is under the operational direction and control of the White
House Military Office, a White House entity that controls
military activities that directly support the President. A
recent IG audit requested jointly by this committee and the
Department of Defense uncovered serious financial management
problems in the White House Communications Agency.18
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\18\ The audit uncovered serious deficiencies at the White House
Communications Agency. Accounting controls were poor. The agency had
$14.5 million in invalidated obligations. It paid for equipment and
services that are no longer necessary. It paid for items that never
arrived, and occasionally paid for the same item twice. Only 17 percent
of its bills are paid on time, causing taxpayers to pay interest and
penalties on the remaining 83 percent. This information is found in
Report No. 96-033, November 29, 1995, ``White House Communications
Agency'' and Report No. 96-100, April 29, 1996, ``White House
Communications Agency--Phase II,'' both issued by the Office of
Inspector General, Department of Defense.
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Having both an IG and a CFO would act as an effective
control to prevent incidences of waste, fraud and abuse,
whether minor, as in petty stealing, or serious, as in
destroying records of national interest.
Once H.R. 3452 is enacted, the Executive Office of the
President would have to prepare and submit to Congress annual
audited financial statements and semiannual Inspector General
reports. This would bring accountability and oversight of
management practices in the White House in line with Executive
Branch agencies who are already under the CFO Act and the
Inspector General Act.
The Inspector General Act of 1978 established Offices of
Inspector General in certain Federal departments and agencies
to protect the integrity of Federal programs and resources. IGs
are appointed without regard to political affiliation and
solely on the basis of a strong background in accounting,
auditing, financial management, and investigations. They are
provided the authority and independence to perform audits and
investigations in order to combat waste, fraud, and abuse. They
report to Congress on a semiannual basis.
Today, 61 entities have Inspectors General, including all
14 Cabinet level departments. In 1994, investigations and
audits performed by Inspectors General led to more than 14,000
successful criminal and civil prosecutions, returned $1.9
billion to the U.S. Treasury, and resulted in potential
efficiency recommendations that would save $24 billion.19
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\19\ ``A Progress Report to the President Fiscal Year 1994,''
President's Council on Integrity and Efficiency and the Executive
Council on Integrity and Efficiency.
---------------------------------------------------------------------------
The strength and effectiveness of the Inspector General Act
lies in the significant authority and independence afforded IGs
to conduct their audits and investigations. IGs have direct
access to all records and information of the agency and possess
the power to issue subpoenas and administer oaths for taking
testimony. IGs have full control over hiring and managing their
own staff and resources and can be removed only by the
President or the agency head who appointed them.
The White House Inspector General would have all the basic
powers that other IGs are granted under the Inspector General
Act of 1978. However, H.R. 3452 has several special provisions
to protect the constitutional prerogatives and operational
effectiveness of the Presidency.
The first, Sec. 8(h)(a), ensures that the White House IG
will not intrude in any areas relating to policy, intelligence,
national security interests, or other sensitive matters. He or
she would be under the authority, control and direction of the
President while conducting audits and investigations that
require information concerning ongoing criminal investigations
or proceedings; the identity of confidential sources or
protected witnesses; deliberations and decisions on policy
matters, intelligence matters, and counterintelligence; and
matters of national security interest.
The second provision, Sec. 8(h)(b), ensures that the IG
does not hinder the President in carrying out his or her
constitutional responsibilities. The President would have
authority to prohibit the White House IG from conducting an
audit if by doing so the IG would interfere with the core
constitutional responsibilities of the President.
These provisions are intended to make sure that the
establishment of an IG in the White House does not interfere
with the constitutional responsibilities of the President,
thereby violating the separation of powers doctrine. In an
analysis provided for the record, the American Law Division of
the Congressional Research Service concluded that the
legislation ``does not appear to create an improper balance
between Congress and the Executive Branch * * * (and) does not
appear to aggrandize Congress' power at the expense of the
President's power in an impermissible manner.'' 20
---------------------------------------------------------------------------
\20\ Memorandum on ``Legal Analysis of Bill Which Establishes an
Office of Inspector General in the Executive Office of the President,''
October 22, 1993, Congressional Research Service American Law Division.
---------------------------------------------------------------------------
The committee's intent is to set up in the Executive Office
of the President a strong, effective, and independent Office of
Inspector General that balances the interests of both the
President and the Congress. The President must be able to carry
out his or her constitutional responsibilities without undue
interference. The Congress must be able to conduct effective
oversight of the Executive Branch and ensure that the President
is accountable to the American people.
In addition to the above provisions intended to enhance
accountability and oversight, the bill also applies to the
entire Executive Office of the President for the first time
certain civil rights, labor and employment laws. Employees in
four divisions of the Executive Office of the President are not
widely covered by employment laws.
The divisions are:
The White House Office,
The Office of Policy Development,
The Executive Residence at the White House, and
The Office of the Vice President.
It is the committee's opinion that all employees should
have access to the same rights and remedies, whether they are
employed in the private sector, in Congress, or the White
House. H.R. 3452 would complete the process begun by the
Congressional Accountability Act and make these laws apply to
the White House as they apply in the private sector and to
Congress.
H.R. 3452 is based on the same three principles which
guided the drafters of the Congressional Accountability Act.
1. If a law is right for the private sector, it is right
for Congress.
2. Congress will write better laws when it has to live by
the same laws it imposes on the private sector.
3. The separation of powers embodied in the Constitution
must be respected.
H.R. 3452 has been examined carefully and revised in some
instances to ensure that it adheres to the third principle.
Some provisions are different from those in the Congressional
Accountability Act because of the intention of the committee to
respect the separation of powers doctrine. The President would
not be subject to injunctive relief. That is, the President
could not be ordered to hire, promote, or reinstate an
employee. The requirements of the Inspector General Act and the
Chief Financial Officers Act have also been adapted so as not
to impermissibly encroach on the President's core
constitutional responsibilities or interfere with his carrying
out those responsibilities. There is an exception to the
definition of a covered employee to allow the continuation of
the White House Volunteer Program.
H.R. 3452 addresses the serious lack of accountability of
regular, unpaid, informal Presidential advisers. It does this
by amending the definition of ``special Government employee''
in section 202 of title 18, United States Code. All informal
advisors, paid or unpaid, of the President, the Vice President,
or their respective spouses, should be accountable to the
public if they function in such a manner that they are
performing a Federal function. The definition of a ``special
Government employee'' in H.R. 3452 would cover all such
instances.
Public accountability is required for informal advisors. If
an unpaid adviser participates in the Government's internal
decision-making process, he or she should be held accountable
to the American people, as are full-time or regular Federal
employees. H.R. 3452 would bring under the definition of
special Government employee (SGE) individuals who perform
Federal functions in the White House or elsewhere in the
Legislative or Executive Branches. They will therefore be
required to adhere to conflict-of-interest and financial-
disclosure rules.
The statutory definition of a special Government employee
has not been materially revised since its enactment in 1962.
Under it, a special Government employee is someone who is
retained or appointed to perform duties on a full-time or part-
time basis with or without compensation for no more than 130
days within 365 consecutive days. This definition does not give
adequate notice of who is covered by the definition and
therefore covered by conflict-of-interest and financial-
disclosure laws. Guidance issued by the Office of Government
Ethics and the Department of Justice focuses on whether the
advisor is in fact performing a Federal function, but there is
no functional test in the statute. Neither the current law nor
this Federal agency guidance adequately covers the various
situations in which informal advisers in the White House have
performed Federal functions and otherwise participated in the
Government's decision- or policy-making process in recent
years.
At the subcommittee hearing held on June 25, 1996,
witnesses concurred that legislative revision of the definition
of special Government employee was needed. Witnesses suggested
that the definition be revised to adopt a functional test, one
that concentrates on the nature of the Federal service the
advisor is providing, rather than on the advisor's outside
interests and affiliations.
The purpose for this legislative revision of the definition
of a special Government employee is to accomplish three
objectives. First, it attempts to capture informal or outside
advisors who are not specifically appointed to advisory
committees or part-time commissions as representatives of a
non-Federal interest. Second, it uses a functional test
consider the nature of the services the person is retained to
provide. Third, it covers the entire Executive Branch. The
revised definition of a special Government employee in H.R.
3452, in the committee's opinion, achieves these objectives.
II. Legislative Hearings and Committee Actions
Representative Mica, Chairman of the House Subcommittee on
Civil Service, Committee on Government Reform and Oversight,
introduced H.R. 3452 on May 14, 1996. The Subcommittee on
Government Management, Information and Technology, Committee on
Government Reform and Oversight held a legislative hearing on
H.R. 3452 on June 25, 1996.
The bill was marked up in the Subcommittee on Government
Management, Information, and Technology on July 16, 1996. Five
amendments were offered and accepted. Ranking Minority Member
Maloney offered an amendment to the section on the definition
of special Government employee that captures informal outside
advisers, uses a functional test based on the nature of the
services provided, and covers the entire Executive Branch.
Another amendment, offered by Subcommittee Chairman Horn, made
three technical corrections. Ranking Minority Member Maloney
offered an ``en bloc'' amendment to allow: the White House
Volunteer Program to continue; consideration of political
affiliation and political compatibility in hiring; and the
elimination of reinstatement as a remedy for employees. All
three amendments were considered and adopted on a voice vote,
without objection. Two other amendments were offered by
Representative Maloney but were withdrawn. One was an amendment
to the section on financial officers, the other proposed
changing the civil rights, labor and employment laws applied by
H.R. 3452 from the private sector laws to the laws already
applicable to Executive Branch agencies. The legislation, as
amended, passed unanimously by voice vote.
The House Committee on Government Reform and Oversight met
on July 25, 1996 to consider H.R. 3452. Two amendments were
offered. One, offered by Subcommittee Chairman Horn, deleted
the provisions relating to the award of punitive damages. A
second amendment, offered by Representative Charles F. Bass (R-
NH), would establish an Inspector General (IG) in the White
House. Both amendments were considered and adopted by voice
vote without objection. Representative Maloney offered an
amendment to the Bass amendment, to establish an IG in the
White House based on the existing requirements for an IG in the
House of Representatives. It was considered and rejected by
voice vote. The legislation, as amended, was favorably reported
to the House of Representatives unanimously by voice vote.
III. Committee Hearings and Written Testimony
On June 25, 1996, the Subcommittee on Government
Management, Information, and Technology held a hearing to
solicit comments from interested parties on H.R. 3452, the
``Presidential and Executive Accountability Act.'' Witnesses
testified concerning the intent of the bill; the bill's
objectives; the reason for various provisions; and the need for
certain changes.
The first panel consisted of Representatives Mica (R-FL)
and Shays (R-CT). Mr. Mica drafted and introduced H.R. 3452.
Mr. Shays drafted and introduced the Congressional
Accountability Act (P.L. 104-1) and is a co-sponsor of H.R.
3452.
The second panel consisted of individuals familiar with the
employment laws included in H.R. 3452 were: Gregory S. Walden,
Counsel, Mayer Brown & Platt, and former Associate White House
Counsel to President Bush; Sandra J. Boyd, Assistant General
Counsel, Labor Policy Association; and Deanna R. Gelak,
Director of Congressional Affairs, Society for Human Resource
Management and Chair, Congressional Coverage Coalition. All
confirmed the need for the provisions of H.R. 3452 to apply to
the White House and those other divisions of the Executive
Office of the President that are not widely covered by
employment laws.
The last panel consisted of Franklin S. Reeder, Director,
Office of Administration, Executive Office of the President,
who testified for the administration on the impact H.R. 3452
would have on the Executive Office of the President.
Subcommittee Chairman Horn opened the hearing by referring
to what James Madison had written in the Federalist Papers
Number 57. ``One of the strongest bonds by which human policy
can connect the rulers and the people'' and restrain the rulers
from ``oppressive measures'' is that ``they can make no law
which will not have its full operation on themselves and their
friends, as well as the in the great mass of society.'' He
stated that H.R. 3452 would ensure that the White House has to
live by the same laws imposed on the American people.
Mr. Mica noted that the intent of the bill was that the
White House should not have any special privileges from which
the private sector or Congress does not benefit. Ms. Gelak
expressed surprise that the White House is exempt from the laws
that apply to private companies and now to Congress, such as
the minimum wage and overtime requirements of the Fair Labor
Standards Act.
A discussion followed of whether current White House
compliance with the Fair Labor Standards and the Family and
Medical Leave Act was satisfactory. It complies as a matter of
policy with the latter but is not required to do so by law.
Mr. Reeder admitted that the four offices, the White House
Office, the Office of the Vice President, the Office of Policy
Development, and the Executive Residence of the White House,
comprises approximately 550 employees, are not covered since
they serve at the pleasure of the President. He stated that in
these four offices, certain laws such as discrimination laws
and the Occupational Safety and Health Act do apply as a matter
of law. Others such as the Family and Medical Leave Act, apply
as a matter of policy.
Mr. Horn asked whether employees in the four offices not
widely covered receive overtime. Mr. Reeder responded that
probably about 80 of the 550 did and that the application of
the Fair Labor Standards Act to all 550 would have a
significant effect on operations, just as it has had in
Congress.
Ranking Minority Member Maloney indicated that H.R. 3452
may have the unintended result of forbidding the President from
using political affiliation as a criterion in hiring and may
make it impossible for the President to ask advice from outside
experts. She suggested adding a section based on Section 502 of
the Congressional Accountability Act to consider party
affiliation and political compatibility in hiring practices.
Mr. Shays reiterated his support for hiring people based on
party affiliation and said that should be included in the bill.
Representative Maloney also focused on the provision in
section 411 of the bill which would give courts or
administrative bodies the authority to order the President to
hire, reinstate, or promote an individual. She asked whether
this was unconstitutional under the Appointments Clause of
Article 1 of the Constitution concerning Presidential
appointments. Mr. Mica responded that it was not the intent to
interfere with the President's authority and said he would be
willing to work on the legislation to ensure that it did not
dictate to the President regarding hiring or firing practices.
In his testimony, Mr. Walden suggested that the definition
of special Government employee, in Section 4 of H.R. 3452
should be revised to include a functional test.
At the subcommittee hearing, Mr. Horn entered into the
record additional written testimony that had been received by
the subcommittee.21 Subsequent to the hearing, additional
information was received from Gregory Walden and from Stephen
D. Potts, Director, Office of Government Ethics, concerning
changes to the definition of a special Government employee.
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\21\ This included a July 12, 1996 letter from the United States
Office of Government Ethics on the definition of a ``special Government
employee,'' and two memoranda from the Congressional Research Service
American Law Division, one dated June 24, 1996, on constitutional
issues relating to establishing a Chief Financial Officer in the
Executive Office of the President, the other dated June 21, 1996, on
the proposed provisions of H.R. 3452, the ``Presidential and Executive
Office Accountability Act.''
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On July 25, 1996 the Committee on Government Reform and
Oversight marked up H.R. 3452. Subcommittee Chairman Horn
offered an amendment which deleted the ``punitive damages''
provisions from the bill. Representative Bass offered an
amendment to add an IG to the White House, based on H.R. 3872,
the ``White House Inspector General Act of 1996,'' which he had
introduced on July 23, 1996. Both were adopted on a voice vote.
Ranking Minority Member Maloney offered an amendment to the
IG amendment, applying the existing House rules on the IG to
the Executive Office of the President. She stated that the
intent of H.R. 3452 was to treat Congress and the White House
similarly. She made the point that no parallel requirement for
Congress exists. The Senate has no IG and that the IG in the
House is limited to financial audits, a provision which is
already in H.R. 3452. The amendment was rejected on a voice
vote.
Representative Flanagan (R-IL) expressed his view that for
Congress to set up an IG in the White House who would report
directly to Congress was an usurpation of the power of the
President and not within Congress's power to require. However,
if such legislation is in fact required, he felt that the
amendment offered by Representative Bass is the best available
because it did have checks and limitations attached to it.
At the committee mark-up, written testimony on
constitutional issues related to establishing an Inspector
General in the Executive Office of the President from the
American Law Division of the Congressional Research Service and
from the Office of Legislative Affairs, United States
Department of Justice, was put into the record.22
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\22\ The memorandum, dated October 22, 1993, concluded that
encroachment by the Legislative Branch on the President's authority
must be balanced by the need of Congress to be able to conduct
effective oversight over the Executive Branch, and, on balance, the
bill did not impermissibly encroach on the President's constitutional
authority. The letter from the United States Department of Justice
Office of Legal Counsel, undated but received July 24, 1996, claimed
that to establish an Inspector General in the Executive Office of the
President violated the separation of powers between the Executive and
Legislative Branches and was not balanced by the Congress' need for
effective oversight.
---------------------------------------------------------------------------
Written testimony was also received from the Office of
Legislative Affairs, Department of Justice supporting the
removal of the injunctive relief provisions from the
bill.23
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\23\ Letter undated but received July 24, 1996, United States
Department of Justice Office of Legislative Affairs.
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IV. Explanation of the Bill
A. OVERVIEW
H.R. 3452 addresses three areas of concern:
The Executive Office of the President is not subject
to the same employment laws that cover private
businesses and the Congress;
Problematic management practices in the Executive
Office of the President; and
Informal advisors in the White House who are not
accountable to the American people.
H.R. 3452 strengthens accountability and oversight at the
White House. It applies to the White House the same laws that
Congress made applicable to itself in the Congressional
Accountability Act. It requires the President to appoint a
Chief Financial Officer and an Inspector General for the
Executive Office of the President. This improves financial
management and ensures that waste, fraud and abuse can be
prevented or detected speedily. It amends the definition of
special Government employee and makes future employment laws
applicable.
As a result of comments during the subcommittee hearing,
certain amendments were made to the bill. These include:
The employment provisions do not encroach on the
President's authority to hire or fire by allowing
injunctive relief as a remedy. Criticism was received
on the injunctive relief provisions, especially as they
allow reinstatement as a remedy for an aggrieved
employee.
The definition of ``special Government employee'' is
clarified to cover Presidential advisors and their work with
the President. The definition of ``special Government
employee'' is tightened by including a functional test, thus
ensuring that unpaid, informal advisers are accountable to the
public. Such advisers would have to comply with the conflict-
of-interest statutes.
Consideration of party affiliation and political
compatibility in making hiring decisions is permissible.
The acceptance of volunteer services, or occasional advice
from experts, is not prohibited. An amendment was made adding
volunteers to the exclusion allowed for interns.
No punitive damages can be awarded, while allowing the full
range of other remedies. An amendment was made eliminating the
section which had added punitive damages to the Congressional
Accountability Act and those sections in the bill that had
allowed punitive damages.
An Office of Inspector General shall be set up in the White
House. At the committee mark-up, Chairman Clinger remarked that
he ``was struck, during the course of the ongoing Travel Office
investigation, by a remark from the Clinton White House. When
they suspected * * * that there was mismanagement in their
travel office, they really had no one to call, no one to carry
out or explore the allegations that were made. They eventually
called in the FBI and, conceivably, the IRS. The President * *
* should have his own Inspector General, somebody that is
selected by him and reportable to him to keep an eye on the
management of the Executive Office * * * [The IGs] have
promoted efficiency and effectiveness in the Federal
Government, and * * * have literally saved the taxpayers
billions of dollars.''
At the subcommittee hearing Franklin Reeder claimed that
the Executive Office of the President could not reorganize to
have one Chief Financial Officer and produce one set of audited
financial statements. At the subcommittee mark-up Ranking
Minority Member Maloney offered and withdrew an amendment
relating to the Chief Financial Officer Act which would have
changed the requirement to allow decentralized financial
management in each of the twelve divisions instead of
centralized financial management under one CFO as the CFO Act
envisaged. It is the committee's opinion that the Executive
Office of the President can comply with the CFO requirements of
H.R. 3452. When the Chief Financial Officers Act became law in
1990, the report of the House Committee on Government
Operations stated that:
The Committee concluded that legislating a rigid
organizational structure for financial management
activities would probably deprive agency heads of the
flexibility required to tailor an organizational
structure that best supports their assigned missions
and goals, thereby hindering the overall objective of
improving financial management operations.24
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\24\ Report No. 101-818, Part 1, on H.R. 5687, the ``Chief
Financial Officer Act of 1990,'' p.19, Committee on Government
Operations, House of Representatives.
Several departments include several different agencies as
component units. The Departments of Agriculture, the Interior,
and the Treasury are all examples of this kind of organization
structure. They have succeeded in establishing a CFO structure
that meets the requirements of the CFO Act. The committee is
confident that the Executive Office of the President can do
likewise, and has not changed the provisions regarding the
Chief Financial Officer.
b. section-by-section analysis
Section 1. Short title; table of contents
The short title of this Act is the ``Presidential and
Executive Office Accountability Act.'' The table of contents
lists the nine separate sections of the bill.
Section 2. Extension of certain rights and protections to Presidential
offices
Subsection (a) amends title 3, United States Code, by
adding at the end a new chapter 5, containing the following
sections:
Subchapter I. General Provisions
Section 401. Definitions
(1) ``Board'' means the Merit Systems Protection Board.
(2) ``Covered employee'' means an employee of an employing
office.
(3) ``Employee'' includes applicants for employment and
former employees.
(4) ``Employing Office'' means each agency office, or other
component of the Executive Office of the President; the
Executive Residence at the White House; and the official
residence of the Vice President.
Section 402. Application of laws
The following laws are made applicable to the Executive
Office of the President as prescribed in the Act:
1. The Fair Labor Standards Act
2. Title VII of the Civil Rights Act of 1964
3. The Americans with Disabilities Act of 1990
4. The Age Discrimination in Employment Act of 1967
5. The Rehabilitation Act of 1973
6. The Family and Medical Leave Act of 1993
7. The Occupational Safety and Health Act of 1970
8. Chapter 71 of title 5, regulating Federal Labor-
Management Relations
9. The Employee Polygraph Protection Act of 1988
10. The Worker Adjustment and Retraining Notification
Act
11. Chapter 43 of title 38, regulating veterans'
employment and reemployment rights.
Subchapter II. Extension of rights and protections
Part A
Section 411. Equal employment
This section applies Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act of 1967, the
Rehabilitation Act of 1973, and Title I of the Americans with
Disabilities Act of 1990 to covered employees. This covers
White House employees and certain other Presidential
appointees. It prohibits discrimination based upon race, color,
religion, sex, national origin, age (within the meaning of the
Age Discrimination in Employment Act), and disability (within
the meaning of section 501 of the Rehabilitation Act and
sections 102 through 104 of the Americans with Disabilities Act
of 1990). Employees whose rights under these laws are violated
are entitled to the same remedies as private sector employees,
including, where applicable, liquidated damages, and
compensatory damages, excluding as a remedy the right to be
hired, reinstated, or promoted.
H.R. 3452 originally would have given courts and
administrative bodies the power to invoke the full range of
remedies on behalf of a White House employee who could show
discrimination. This would have included injunctive relief,
that is, requiring that the employee be hired, reinstated, or
promoted, as applicable. At the hearing, witnesses testified
that giving courts or administrative bodies the power to order
the President to rehire or promote an employee presented a very
serious constitutional problem. The Office of Legal Counsel at
the Department of Justice concluded in a letter received on
July 24, 1996 that the original wording of H.R. 3452 would
violate the Constitution based on the powers given the
President, the Appointments Clause of Article 2 of the
Constitution, and on the separation of powers doctrine.
Accordingly, H.R. 3452 was amended to limit the ability of
courts to order the President to hire, reinstate, or promote
any individual, while leaving intact a full range of other
remedies available to aggrieved employees, such as back pay or
compensatory pay. It is very narrowly drawn so as not to touch
the range of substantive worker protections and procedural
safeguards, it merely removes the single remedy, injunctive
relief, that could violate the Constitution.
This section also contains special definitions of ``covered
employee'' and ``employing office'' to ensure coverage of all
Presidential employees who were previously covered by section
320 of the Government Employee Rights Act of 1991, which is
repealed.
Transition rules preserve the procedures and remedies of
that Act for complaints filed under that Act before the
effective date of this section.
Covered employees do not include individuals whose
appointment is made by and with the advice and consent of the
Senate, individuals appointed to advisory committees, or
members of the uniformed forces.
Section 412. Family and Medical Leave Act of 1993
This section applies the rights and protections of sections
101 through 105 of the Family and Medical Leave Act of 1993 to
White House employees who have been employed by an ``employing
office'' for 12 months and for at least 1,250 hours of
employment during the previous 12 months. Employees whose
rights are violated under this section are entitled to the same
remedies, including liquidated damages, as private sector
employee, excluding the right to be hired, reinstated, or
promoted.
Section 413. The Fair Labor Standards Act of 1938
Under this section, White House employees would be
protected by the Fair Labor Standards Act, which regulates
minimum wages and overtime pay. H.R. 3452 provides an exception
to the requirements of the Fair Labor Standards Act (which
prohibits individuals from volunteering their services without
receiving compensation) for interns and volunteers. The
exception states that interns and volunteers are not covered
employees under the Fair Labor Standards Act.
The White House Volunteer Program has hundreds of
participants. Tens of thousands of individuals over the decades
have contributed their time and energy to the White House, in
both Democratic and Republican Administrations. Most of these
volunteers are senior citizens, school children, or Boy or Girl
Scouts. State and local governments, as well as Federal
institutions such as the National Park Service and the
Smithsonian Institution, are already permitted to accept
volunteer services. Allowing volunteers leaves the White House
on the same footing as these other entities.
Except for employees whose schedules directly depend on the
schedules of the President or Vice President, employees may not
receive compensatory time in lieu of overtime. The remedy for a
violation of the Fair Labor Standards Act is the same as that
available to private sector employees, including liquidated
damages; however, it excludes the right to be hired,
reinstated, or promoted.
The President is required to issue regulations to implement
this section that are the same as regulations issued by the
Secretary of Labor, unless the President determines for good
cause shown and stated, that modification of the Secretary's
regulations would be more effective for implementing the rights
and protections under this section. The President's regulations
shall also include provisions for employees whose schedules
depend directly on his or the Vice President's schedule that
are comparable to regulations issued by the Secretary covering
employees who have irregular work schedules.
Section 414. The Employee Polygraph Protection Act of 1988
This section extends the protections of paragraphs (1),
(2), and (3) of section 3 and the waiver provision of section
6(d) of the Employee Polygraph Protection Act of 1988 to White
House employees. The White House would not be prohibited from
requesting an employee to submit to a polygraph in connection
with an ongoing investigation. The remedy for violations would
be the same as provided for in the Employee Polygraph
Protection Act for employees in the private sector, excluding
the right to be hired, reinstated, or promoted. The President
is required to issue regulations to implement this section that
are the same as regulations issued by the Secretary of Labor,
unless the President determines for good cause shown and
stated, that modification of the Secretary's regulations would
be more effective for implementing the rights and protections
under this section.
Section 415. The Worker Adjustment and Retraining Notification Act
This section provides that no employing office is allowed
to close or order mass layoffs without giving 60 days notice to
representatives of covered employees. However, there is an
exception in the event that a President who does not succeed
himself or herself fails to issue the required notices. In such
an event no notice or waiting period is required with respect
to the separation of an individual if such separation occurs
pursuant to a closure or mass layoff ordered after the term of
the new President commences. The individual is described as any
covered employee serving pursuant to an appointment made during
the term of office of the previous President, or any term,
earlier than the term referred to above, during which such
previous President served as President or Vice President. The
remedy for a violation of this section is the same as would be
provided under paragraphs (1), (2), and (4) of section 5(a) of
the Worker Adjustment and Retraining Notification Act, but
excluding the right to be hired, reinstated, or promoted.
The President is required to issue regulations to implement
this section that are the same as regulations issued by the
Secretary of Labor, unless the President determines for good
cause shown and stated, that modification of the Secretary's
regulations would be more effective for implementing the rights
and protections under this section.
Section 416. Veterans' Employment and Reemployment
This section extends the protections of subsections (a) and
(b) of section 4311, and sections 4312, 4313, 4316, 4317, and
4318, of title 38, United States Code to eligible employees. An
eligible employee is a covered employee performing service in
the uniformed services within the meaning of 38 U.S.C.
Sec. 4303(13) whose service has not been terminated under 38
U.S.C. Sec. 4304. The remedy for a violation is the same as is
provided under 38 U.S.C. Sec. 4323(c)(1), (2)(A), and (3), but
excluding the right to be hired, reinstated, or promoted.
The President is required to issue regulations to implement
this section that are the same as regulations issued by the
Secretary of Labor, unless the President determines for good
cause shown and stated, that modification of the Secretary's
regulations would be more effective for implementing the rights
and protections under this section.
Section 417. Intimidation or reprisal prohibited
This section prohibits an employing office from
intimidation or reprisal against any covered employee because
the covered employee has opposed any practice made unlawful by
the provisions of this chapter, or because the covered employee
has initiated proceedings, made a charge, or in any way
participated in a hearing or other proceeding under this
chapter. A violation can be remedied by any legal remedy
available to redress the practice which the employee opposes or
the violation of law which caused him or her to initiate
proceedings. It excludes the right to be hired, reinstated, or
promoted.
Part B
Section 420. Public access provisions of the Americans with
Disabilities Act of 1990
This section applies the public access provisions of the
Americans with Disabilities Act of 1990 to the White House and
its grounds, the Old Executive Office Building, the New
Executive Office Building, and any other facilities that house
employees of the Executive Office of the President, to the
extent that public services, programs, or activities are
provided. The remedy and enforcement mechanisms for a violation
are those available under sections 203 or 308 of the Americans
with Disabilities Act of 1990. However, section 411 of this Act
provides the exclusive remedy for employment discrimination.
Part C
Section 425. Occupational Safety and Health Act of 1970
This section requires employing offices and employees to
comply with section 5 of the Occupational Safety and Health Act
of 1970 (OSHA) and provides for remedies under section 13(a) of
that Act. The Secretary of Labor has the same authority to
conduct inspections and investigations as he has with respect
to private employers under subsections (a), (d), (e), and (f)
of section 8 of OSHA; to issue citations and notifications in
accordance with sections 9 and 10 of OSHA; and to grant
variances under sections 6(b)(6) and 6(d). Administrative
adjudications of disputes under this section are available
before the Occupational Safety and Health Review Commission,
with judicial review by the United States Court of Appeals for
the Federal Circuit.
The President is required to issue regulations to implement
this section that are the same as regulations issued by the
Secretary of Labor, unless the President determines for good
cause shown and stated, that modification of the Secretary's
regulations would be more effective for implementing the rights
and protections under this section. This section takes effect
one year after the enactment of this Act. Where new
appropriations are necessary to correct a violation, the
correction must be made as soon as possible but not later than
the end of the fiscal year following the citation or final
order.
Part D
Section 430. The Federal Labor-Management Relations Act
This section applies the Federal Labor Management Relations
Act to the employing offices and covered employees, including
administrative proceedings before the Federal Labor Relations
Authority. Judicial review shall be by the United States Court
of Appeals for the Federal Circuit.
Subsection (a). Labor-management rights
This section makes it clear that covered employees shall
not have the right to be reinstated. It takes effect one year
after the date of enactment.
Part E
Section 435. Generally applicable remedies and limitations
Covered employees who prevail in any action brought under
this Act, or a qualified person with a disability who prevails
with respect to a claim under section 420, may be entitled to
attorney fees, expert fees, and costs in accordance with
section 706(k) of the Civil Rights Act of 1964. Interest shall
also be available under section 717(d). This Act does not allow
any punitive damages to be awarded. The administrative and
judicial procedures established by this Act are the exclusive
procedures for remedying violations of the Act. However,
covered employees who are veterans may also utilize the
provisions of chapter 43 of title 38, United States Code, that
are applicable to them. Covered employees may not receive a
remedy under part A of title II unless they have exhausted the
counseling and mediation procedures established pursuant to
section 452 of this Act.
Except where inconsistent with definitions and exemptions
provided in this Act, the definitions and exemptions in the
laws made applicable by this Act shall apply. However,
provisions in such laws that limit coverage based on size,
number of employees, amount of business transacted, or other
measures shall not apply, except for paragraphs (2) and (3) of
section 2(a) of the Worker Adjustment and Retraining
Notification Act.
For the purposes of this section, the definitions of
``employing office'' and ``covered employee'' in section 411
shall apply with respect to any matter to which section 411
relates.
Subchapter III. Administrative and judicial dispute-resolution
procedures
Section 451. Procedures for consideration of alleged violations
The procedures under this Act for remedying violations of
part A of title II consist of counseling and mediation and the
election of either an administrative remedy or a civil action
remedy before a United States district court.
Section 452. Counseling and mediation
The President is required to establish by regulation
procedures substantially similar to those under sections 402
and 403 of the Congressional Accountability Act of 1995 for
counseling and mediation with respect to alleged violations of
part A of title II. These procedures must be exhausted before
the covered employee may pursue any further form of relief.
Section 453. Election of proceeding
After completing counseling and mediation, a covered
employee must elect either an administrative remedy or a civil
action before a United States district court. The election must
be made no later than 90 days after the employee receives
notice of the end of the period of mediation, but no sooner
than 30 days after receiving such notice.
Section 454. Appropriate agencies
Complaints alleging violations of section 411 (or any
related retaliation under section 417) shall be filed with the
Equal Employment Opportunity Commission unless they involve a
``mixed case,'' and shall be processed under the same
administrative procedures as complaints filed by any other
Federal employee. Some cases are ``mixed cases,'' involving
both an action that an employee of an executive agency could
file with the Merit Systems Protection Board and an allegation
of discrimination under section 411 (or any related retaliation
under section 417). Such cases shall be filed with the Board
and processed in accordance with the mixed case procedures in 5
U.S.C. Sec. 7702, except that judicial review shall lie with
the United States Court of Appeals for the Federal Circuit
rather than a Federal district court. Complaints alleging
violations of any other section of part A of subchapter II
shall be filed with the Merit Systems Protection Board.
Section 455. Judicial review
Judicial review of administrative decisions under this act
shall lie with the United States Court of Appeals for the
Federal Circuit.
Section 456. Civil action
The district courts of the United States shall have
jurisdiction of any civil action brought under this Act. The
defendant in such an action shall be the employing office
alleged to have committed the violation or in which it is
alleged to have occurred. Covered employees have the same right
to a jury trial as a private sector employee. In any case under
section 201, the court shall not inform the jury of the maximum
amount of compensatory damages available under section
411(b)(1) or 411(b)(3).
Section 457. Judicial review of regulations
The court may review the validity of any regulation issued
under this Act that is challenged in an action under section
455 or 456 in accordance with 5 U.S.C. Sec. 706(2)(A)-(D). If
the court determines that a regulation is invalid, it shall
apply, to the extent necessary and appropriate, the most
relevant substantive executive agency regulation promulgated to
implement the statutory provision with respect to which the
challenged regulation was issued. Except as provided by this
Act, the validity of regulations issued under this Act is not
subject to judicial review.
Section 458. Other judicial review prohibited
The judicial review provided by this Act shall be the
exclusive means of judicial review of matters arising under
this Act.
Section 459. Effect of failure to issue regulations
If the President has failed to issue a regulation required
by this Act, the administrative agency or court shall apply, to
the extent necessary and appropriate, the most relevant
substantive agency regulation promulgated to implement the
statutory provision at issue in the proceeding.
Section 460. Expedited review of certain appeals.
This section establishes expedited procedures for Supreme
Court review of court rulings on the constitutionality of any
provision of this Act. Such a ruling may be appealed directly
to the Supreme Court, and the Supreme Court is required to
accept jurisdiction unless it has previously ruled on the
question, advance the appeal on its docket, and expedite the
appeal to the greatest extent possible.
Section 461. Payments
Awards in and settlements of an action that commenced in a
Federal district court shall be paid from the fund established
by 31 U.S.C. Sec. 1304. Awards in and settlements of an action
that arise from an administrative proceeding under this Act
shall be paid out of amounts otherwise appropriated or
available to such office.
Section 462. Confidentiality
Counseling and mediation under this Act shall be strictly
confidential.
Section 463. Definitions
In applying subchapter III, ``employing office'' and
``covered employee'' shall have the meaning given in section
411 when that section is involved.
Subchapter IV. Effective Date
Section 471. Effective Date
Chapter 5 shall take effect one year after the date of the
enactment of this Act. However, this section also requires that
regulations needed to implement it shall be in effect on the
effective date and makes a technical amendment to the table of
chapters for title 3, United States Code.
Section 3. Chief Financial Officer
The President is required to appoint a Chief Financial
Officer and a Deputy Chief Financial Officer for the Executive
Office of the President. Both the Chief Financial Officer and
the Deputy Chief Financial Officer shall meet the
qualifications standards described in 31 U.S.C. Sec. 901(a)(3).
The Chief Financial Officer shall perform the same functions as
a Chief Financial Officer under 31 U.S.C. Sec. 902. The
Director of the Office of Management and Budget shall prescribe
regulations necessary to ensure that, to the extent practicable
and appropriate, the Executive Office of the President shall be
treated in the same way as an agency described in 31 U.S.C.
Sec. 901(b).
This section also makes technical and conforming amendments
to 31 U.S.C.Sec. 503(a)(7) and (8). These exempt the Chief
Financial Officer and Deputy Chief Financial Officer appointed
under this Act from the requirements that the Director of the
Office of Management and Budget establish qualification
standards for agency Chief Financial Officers and Deputy Chief
Financial Officers and advise the agency head on the selection
of Deputy Chief Financial Officers. The President is also
required to designate an employee of the Executive Office of
the President as the ``agency head'' for the purposes of
implementing 31 U.S.C. Sec. 902.
Section 4. Amendment to Definition of special Government employee
This section amends the definition of special Government
employee in subsection 202(a) of title 18, United States Code.
This amendment is advisable, the committee believes, because
hearings before the House Committee on Government Reform and
Oversight on the ``Travelgate'' matter have uncovered
allegations that certain advisers to the President may have
used their position in the White House and the staff of the
Executive Office of the President to promote their own business
interests, by encouraging the firing of the White House Travel
Office staff. The committee believes that such advisers should
have been considered as special Government employees under the
current tests used to interpret section 202. However, the
committee deems it advisable to amend the statute to make it
completely clear that, in the future, similarly situated
informal advisers would be special Government employees and
therefore subject to conflict-of-interest and financial-
disclosure laws.
Under this amendment, an individual would meet the
definition if two criteria are present. The first is that the
individual was retained, designated, appointed, or employed in
the Legislative or Executive Branch of the United States
Government, or in any independent agency of the United States,
to perform a Federal function, (or in the government of the
District of Columbia to perform a District of Columbia
function). The second is that the individual, at the time of
retention, is expected to perform temporary duties on a full-
time or intermittent basis for a period not to exceed 130 days
during any period of 365 consecutive days.
Subsection 202 (c) is amended to define ``officer'' or
``employee'' and ``Federal or District function.'' Such a
function is defined as including the following activities:
Supervising, managing, directing, or overseeing a
Federal or District of Columbia officer or employee in
the performance of such officer's or employee's
official duties.
Providing regular advice, counsel, or recommendations
to the President, the Vice President, a Member of
Congress, or any other Federal or District of Columbia
officer or employee, or conducting meetings involving
any of those individuals, as part of the Federal or
District of Columbia government's internal deliberative
process.
Obligating funds of the United States or the District
of Columbia.
A person who is directing, supervising, or organizing
Federal or District of Columbia employees or conducting
meetings as described above can clearly be seen as performing a
Federal function. It is a more difficult matter to determine
when a person giving advice is also performing a Federal
function. The following reflects the intent of the committee in
how the functional test should be applied.
The functional test would not cover the chairman of the
Democratic National Committee or Republican National Committee,
or other political adviser, including the President's pollster,
so long as the political or polling advice is not regularly
dispensed in the context of a meeting or discussion concerning
official Government policy that is part of the Government's
internal deliberative process.
By ``internal,'' the committee's intent is to exclude
advice given in a public forum.
By ``deliberative process,'' the committee's intent is to
exclude one-on-one discussions with the President, Vice
President, or similar high-level official. One example would be
a meeting with the head of the AFL-CIO or Chamber of Commerce,
where no Government decision is being made or discussed among
Government employees with decision-making authority or other
responsibility concerning the matter. This would allow others
to be present when the head of the AFL-CIO meets with the
President.
By ``regular,'' the committee's intent is to exclude any
person from the coverage of the term who participates in only a
single meeting, or only rarely meets, with the President or
other Federal official.
The committee does not intend to make any change in the
substance of the coverage of Sec. 202(a) to military personnel.
A new subsection 202(f) is added. It serves two purposes.
First, it continues the present exemption that states that
enlisted members of the Armed Forces are not to be considered
``officers or employees'' or ``special Government employees''
for purposes of these conflicts of interest statutes. Second,
it includes in the statute for the first time language
reflecting longstanding interpretations that a special
Government employee does not include an individual who is
retained specifically to act as a representative of a non-
Federal or non-District of Columbia interest on a Government
advisory body. Such a body includes an advisory committee
established pursuant to the Federal Advisory Committee Act,
\25\ or any similarly established committee whose meetings
generally are open to the public.
---------------------------------------------------------------------------
\25\ 5 U.S.C. App. 1.
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Section 5. Applicability of future employment laws
Future Federal laws regulating private sector employment
shall apply to ``employing offices'' and ``covered employees''
under section 401 unless such laws expressly exempt the White
House and cite this section.
Section 6. Repeal of Section 320 of the Government Employee Rights Act
of 1991
This section repeals section 320 of the Government Employee
Rights Act of 1991, effective one year after the enactment of
this Act. Complaints filed pursuant to the Government Employee
Rights Act of 1991 before the effective date of this Act shall
be processed in accordance with that Act.
Section 7. Political Affiliation
This section allows for consideration of political
affiliation in the hiring process. H.R. 3452 originally did not
include language giving the President the right to hire and
fire based on party affiliation and political compatibility.
The Congressional Accountability Act, upon which H.R. 3452 is
based, did include this specific provision. An amendment was
added at the subcommittee hearing to add a new section to the
bill, modeled on the Congressional Accountability Act, to
clarify the intent of the bill by explicitly allowing
consideration of political affiliation in hiring. This
provision is intended to make it clear that considering
political affiliation in hiring is not a violation of section
411 of this Act with respect to employment decisions.
Section 8. Establish an Office of Inspector General in the Executive
Office of the President
Subsection 8(a)
This subsection amends Section 11 of the Inspector General
Act of 1978 to establish an Office of Inspector General in the
Executive Office of the President.
Subsection 8(b)
The President is required to appoint an Inspector General
not later than 120 days after the effective date of subsection
8(d).
Subsection 8(c)
This adds a subsection to the applicable section of the
U.S. Code, and renumbers the succeeding subsections. Subsection
8H includes special provisions concerning the Inspector General
of the Executive Office of the President. It specifies that the
IG will be under the direction and control of the President
with respect to activities which could be construed as
interfering with the President's constitutional authority or
the national interest. The President can prohibit the IG from
carrying out investigative activity with respect to such
information. He can do this if the disclosure of the
information would interfere with the core functions of the
constitutional responsibilities of the President; and if such
prohibition is necessary to prevent disclosure of that
information.
The President must notify the IG of his or her decision
within 30 days. In turn, within 30 days after receiving the
notice, the IG must transmit a copy of the notice to each of
the chairmen and ranking minority members of the House
Committee on Government Reform and Oversight, the Senate
Committee on Governmental Affairs, and other appropriate
committees or subcommittees of Congress.
The IG must submit semiannual reports to the President as
other IGs do to their department or agency heads. The report
must then be transmitted to Congress within 30 days after
receipt.
Subsection 8(d). Effective date
The provisions of this subsection shall take effect on
January 21, 1997.
V. Compliance With Rule XI
Pursuant to rule XI, clause 2(l)(3)(A), of the Rules of the
House of Representatives, under the authority of rule X, clause
2(b)(1) and clause 3(f), the results and findings for those
oversight activities are incorporated in the recommendations
found in the bill and in this report.
VI. Budget Analysis and Projections
This act provides for new authorizations. Consequently the
provisions of section 252 of the Balanced Budget and Emergency
Deficit Control Act of 1985 (pay-as-you-go-procedures) are
applicable.
VII. Cost Estimate of the Congressional Budget Office
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 5, 1996.
Hon. William F. Clinger, Jr.,
Chairman, Committee on Government Reform and Oversight, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3452, the
Presidential and Executive Office Accountability Act.
Becasue enacting this legislation could affect direct
spending, pay-as-you-go procedures would apply.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
1. Bill number: H.R. 3452.
2. Bill title: Presidential and Executive Office
Accountability Act.
3. Bill status: As ordered reported by the House Committee
on Government Reform and Oversight on July 25, 1996.
4. Bill purpose: H.R. 3452 would apply 11 employee
protection laws to the 12 agencies and offices that comprise
the Executive Office of the President (EOP). The bill also
would establish within the EOP both a chief financial officer
(CFO) and an Office of the Inspector General (OIG), and would
amend the definition of special government employee. The
application of the employee protection laws is nearly identical
to Public Law 104-1, which applied these same laws to the
legislative branch.
The creation of the OIG would not take effect until January
21, 1997. The extension of the workplace protection laws to EOP
employees and the repeal of section 320 of the Government
Employee Rights Act of 1991 would take effect one year after
enactment. All other provisions would take effect upon
enactment.
5. Estimated cost to the Federal Government: Assuming
appropriation of the necessary amounts, CBO estimates that
implementing H.R. 3452 would cost about $2 million in fiscal
year 1997, about $3 million in fiscal year 1998, and about $4
million in each of fiscal years 1999 through 2002. These costs
would result primarily from applying the Inspector General (IG)
Act to the EOP. They would also include costs for applying the
CFO Act in the EOP, applying both the Fair Labor Standards Act
of 1938 (FLSA) and labor-management relations provisions to
Title 3 employees, developing regulations to implement the
employee protection laws, establishing administrative and
judicial dispute-resolution procedures, and surveying and
modifying EOP facilities to conform with the Americans with
Disabilities Act (ADA) requirements. The estimated budgetary
effects of the bill are summarized in the following table.
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level............................. 2 3 4 4 4 4
Estimated outlays......................................... 2 3 4 4 4 4
----------------------------------------------------------------------------------------------------------------
6. Basis of estimate:
Office of the Inspector General.--The primary budgetary
impact of H.R. 3452 would stem from applying the Inspector
General Act of 1978 to the EOP. Based on the costs of the
existing OIGs, CBO estimates that the new OIG would cost less
than $0.5 million in fiscal year 1997, between $1 million and
$1.5 million in fiscal year 1998, and between $1.5 million and
$2 million each year thereafter. The estimate assumes that the
inspector general would be appointed and approved by the Senate
by the end of fiscal year 1997, and that to meet the act's
responsibilities for conducting audits and investigations, the
office would require about 12 employees, with additional costs
to contract with a private accounting firm to audit the EOP's
annual financial statements.
Chief Financial Officer.--The bill also would apply, to the
extent practicable and appropriate, the provisions of the Chief
Financial Officers Act to the EOP. The bill would require the
Director of the Office of Management and Budget (OMB) to
prescribe the necessary regulations to implement the CFO Act in
the EOP. Based on the experience of existing agency CFOs and on
information provided by the Office of administration, OMB, and
the General Accounting Office, CBO estimates that the CFO
provisions would increase costs by less than $500,000 a year,
beginning in fiscal year 1997. This estimate assumes that the
President would appoint the CFO and deputy CFO by the middle of
fiscal year 1997 and that either OMB or the Office of
Administration would perform the main financial reporting
responsibilities required under the CFO Act.
Fair Labor Standards Act.--For the most part, employees of
the EOP, who are classified in one of two categories, are
already covered by the employee protection laws. About 550 EOP
employees--including individuals that work in the Office of the
White House, the Office of the Vice President, the Executive
Residence, and the Office of Policy Development--are covered by
Title 3 of the U.S. Code. Approximately 1,150 other EOP
employees are covered by Title 5 of the U.S. Code. Of the 11
laws cited in H.R. 3452, Title 3 employees are already
covered--either by law or a as matter of policy--by seven. The
four exceptions are the Employee Polygraph Protection Act of
1988, the FLSA, the Worker Adjustment and Retraining
Notification Act, and the labor-management provisions of
Chapter 71 of Title 5. Title 5 employees are covered by 10 of
the 11 laws, with the lone exception of the Employee Polygraph
Protection Act of 1988.
The FLSA requires employers to pay at least the minimum
wage specified in law and to compensate certain employees for
overtime in excess of 40 hours in one week. H.R. 3452 would
require EOP employers to pay affected Title 3 employees
according to those standards. (The bill would exclude interns
and volunteers from this coverage.) For employees whose work
schedules directly depend upon the schedule of the President or
Vice President, the bill would allow EOP employers to grant
compensatory time off at a rate of one and a half hours per
hour of overtime worked in lieu of overtime pay if the employee
so chooses. Thus, this provision would result in some
combination of increased spending by EOP employers because of
overtime pay, and increased time off for certain employees who
opt for compensatory time instead of overtime pay. The impact
of FLSA ultimately would depend on how the President defines
which employees are to be covered by FLSA and which covered
employees qualify for compensatory time off, as well as whether
employees would choose overtime pay or compensatory time off.
Of the four Title 3 agencies, only the Executive Residence
regularly pays overtime to its employees. Thus, any effect of
this provision would be on the approximately 450 other
employees covered by Title 3. Based on the Department of Labor
classifications for exempt employees and on information
provided by the Office of Administration, we expect that about
40 percent of the remaining title 3 employees--predominantly in
the Office of the White House--would be eligible for overtime
pay. The three offices do not know how much overtime these
employees currently work. However, assuming that the
individuals, on average, work no more than two to three hours
of overtime a week, the total costs to the EOP to comply with
the provision would still be less than $500,000 a year through
fiscal year 2002.
Federal Labor-Management Relations.--The bill would extend
to Title 3 employees the same right that Title 5 employees
currently have to organize, form bargaining units, select a
union representative, negotiate with employers, and bring
grievances to the Federal Labor Relations Authority (FLRA). If
employees in the offices of the White House, vice President,
Executive Residence, and Policy Development elected to organize
and force their employers to negotiate with various bargaining
units, the employers would incur additional staff costs in
order to meet their responsibilities under the law. The
employees within the Title 5 agencies of the EOP have so far
elected not to form a union. Based on the experience of federal
agencies whose employees have elected to unionize, it appears
that an agency with one hundred to several hundred employees
could spend $100,000 to $200,000 per year for legal assistance
and part of the time of personnel officers who must work with
the bargaining units. CBO cannot predict to what extent Title 3
employees would decide to take advantage of their opportunity
to organize; however, we do not expect that the costs would
exceed $500,000 in any one year.
Administrative and Judicial Dispute-Resolution
Procedures.--H.R. 3452 would require the President to establish
procedures substantially similar to those included in the
Congressional Accountability Act for EOP employees to file
complaints and answer questions and to receive counseling and
mediation for alleged violations of the bill's employee
protection laws. Depending on the outcome of the counseling and
mediation steps, an employee may elect to further pursue the
dispute in either an administrative hearing before the Merit
Systems Protection Board (MSPB), or in the case of a violation
of civil rights, the Equal Employment Opportunity Commission
(EEOC), or by filing suit in a district court. Title 5
employees are already entitled to an administrative or judicial
hearing, as well as to a judicial appeal. Also, the Office of
Administration already provides some counseling and assistance
to EOP employees. Thus, based on the Office of Compliance's
brief experience with the legislative branch, CBO estimates
that complying with the bill's dispute resolution procedures
would cost the EOP between $500,000 and $1 million each year,
beginning in fiscal year 1998. This estimate assumes six to
eight additional full-time employees, which would include
counselors, attorneys, and support staff, as well as additional
costs for outside mediators.
Other Costs.--Most of the laws that would be applied by
H.R. 3452 already govern employees of the EOP either through
existing statute or as a matter of policy. In general,
therefore, they are not likely to result in additional costs.
However, requiring that EOP buildings conform with ADA
standards would likely result in some minor modifications from
the current Uniform Federal Accessibility Standards (UFAS),
such as a greater use of signs with printing in Braille and the
provision of text telephone and other devices to enhance
communication access. To ensure compliance equivalent to
existing private-sector requirements, either the General
Services Administration (GSA), which controls the EOP
properties, or an outside company would need to survey the
properties and make any necessary modifications. Based on
information provided by GSA, which has a revolving five-year
plan to make necessary ADA modifications in GSA-controlled
space, and based on the experience of the legislative branch,
we do not expect such costs to be significant.
H.R. 3452 also would clarify the definition of special
government employee (SGE) to both include certain advisors not
covered under current law, as well as to exclude other
advisors. SGEs are individuals who provide temporary services
to the federal government, such as an independent counsel or a
member of a member of a federal advisory council. These
individuals are required to submit forms reporting on their
finances and on potential conflicts of interest. On the one
hand, the bill would clarify that individuals who provide
regular advice or counsel to the President, Vice President, a
Member of Congress, or a federal judge are to be considered
SGEs. On the other hand, the bill would clarify that an
individual who serves on a federal committee with solely a
nonfederal interest is not to be considered an SGE. Based on
information provided by the Office of Government Ethics, we
expect that the changes would have little impact on both the
total number of individuals classified as SGEs and on the total
costs to agencies and Congressional offices to review any
additional disclosure forms that might arise from the bill's
clarification.
Finally, the bill would require the President to develop
regulations for implementing many of the bill's employee
protection laws. Based on the experience of the Office of
Compliance, which is still in the process of writing its
regulations, CBO estimates that the largely one-time cost to
the EOP would be between $500,000 and $1 million in fiscal year
1997. This estimate assumes that this task would require the
equivalent of seven to 10 full-time employees for up to 12
months.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. CBO estimates that enacting
H.R. 3452 could affect direct spending. Thus, pay-as-you-go
procedures would apply to the bill.
The bill would allow a district court to order a remedy
that could include compensation. Under H.R. 3452, after an
employee has exhausted the procedures for counseling and
mediation, the individual may elect either an administrative or
a judicial hearing. In the case of an administrative hearing
before either the MSPB, or if the complaint alleges
discriminatory practice, the EEOC, the employee could receive
compensation if successful, However, the bill would require
that any such payment be made out of an agency's appropriated
funds. In the case of a judicial hearing, the payment would be
made from the Claims, Judgments, and Relief Acts fund, a
mandatory account. Title 5 employees are already covered by 10
of the bill's 11 workplace laws and can seek judicial relief
under current law. Title 3 employees are covered by 7 of these
laws, and only the application of FLSA is likely to affect
awards of compensation to them. Therefore, we expect that H.R.
3452 would not result either in a significant increase in
complaints or in direct spending. The estimated pay-as-you-go
impact is summarized in the following table.
[By fiscal year, in millions of dollars]
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Change in outlays............................ 0 0 0
Change in receipts........................... 0 NA 0
------------------------------------------------------------------------
8. Estimated impact on State, local, and tribal
governments: H.R. 3452 contains no intergovernmental mandates
as defined by the Unfunded Mandates Reform Act of 1995 (Public
Law 104-4), and would not affect the budgets of State, local,
or tribal governments.
9. Estimated impact on the private sector: The bill
contains no new private-sector mandates as defined by Public
Law 104-4.
10. Previous CBO estimate: None.
11. Estimate prepared by: Federal Cost Estimate--John R.
Righter; impact on State, local, and tribal governments--
Theresa Gullo; impact on the private sector: Matthew Eyles.
12. Estimate approved by: Paul A Sunshine, for Paul N. Van
de Water, Assistant Director for Budget Analysis.
VIII. Inflationary Impact Statement
In accordance with rule XI, clause 2(l)(4) of the Rules of
the House of Representatives, this legislation is assessed to
have no inflationary impact on prices and costs in the
operation of the national economy.
IX. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
TITLE 3, UNITED STATES CODE
Chap. Sec.
Presidential Elections and Vacancies.............................1
* * * * * * *
Extension of Certain Rights and Protections to Presidential 5.
Offices......................................................401
* * * * * * *
CHAPTER 5--EXTENSION OF CERTAIN RIGHTS AND PROTECTIONS TO PRESIDENTIAL
OFFICES
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
401. Definitions.
402. Application of laws.
SUBCHAPTER II--EXTENSION OF RIGHTS AND PROTECTIONS
Part A--Employment Discrimination, Family and Medical Leave, Fair Labor
Standards, Employee Polygraph Protection, Worker Adjustment and
Retraining, Employment and Reemployment of Veterans, and Intimidation
411. Rights and protections under title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act of 1967, the
Rehabilitation Act of 1973, and title I of the Americans with
Disabilities Act of 1990.
412. Rights and protections under the Family and Medical Leave Act of
1993.
413. Rights and protections under the Fair Labor Standards Act of 1938.
414. Rights and protections under the Employee Polygraph Protection Act
of 1988.
415. Rights and protections under the Worker Adjustment and Retraining
Notification Act.
416. Rights and protections relating to veterans' employment and
reemployment.
417. Prohibition of intimidation or reprisal.
Part B--Public Access Provisions Under the Americans With Disabilities
Act of 1990
420. Rights and protections under the Americans with Disabilities Act of
1990.
Part C--Occupational Safety and Health Act of 1970
425. Rights and protections under the Occupational Safety and Health Act
of 1970; procedures for remedy of violations.
Part D--Labor-Management Relations
430. Application of chapter 71 of title 5, relating to Federal service
labor-management relations; procedures for remedy of
violations.
Part E--General
435. Generally applicable remedies and limitations.
SUBCHAPTER III--ADMINISTRATIVE AND JUDICIAL DISPUTE-RESOLUTION
PROCEDURES
451. Procedure for consideration of alleged violations.
452. Counseling and mediation.
453. Election of proceeding.
454. Appropriate agencies.
455. Judicial review.
456. Civil action.
457. Judicial review of regulations.
458. Other judicial review prohibited.
459. Effect of failure to issue regulations.
460. Expedited review of certain appeals.
461. Payments.
462. Confidentiality.
463. Definitions.
SUBCHAPTER IV--EFFECTIVE DATE
471. Effective date.
Subchapter I--General Provisions
SEC. 401. DEFINITIONS.
Except as otherwise specifically provided in this chapter, as
used in this chapter:
(1) Board.--The term ``Board'' means the Merit
Systems Protection Board under chapter 12 of title 5.
(2) Covered employee.--The term ``covered employee''
means any employee of an employing office.
(3) Employee.--The term ``employee'' includes an
applicant for employment and a former employee.
(4) Employing office.--The term ``employing office''
means--
(A) each office, agency, or other component
of the Executive Office of the President;
(B) the Executive Residence at the White
House; and
(C) the official residence (temporary or
otherwise) of the Vice President.
SEC. 402. APPLICATION OF LAWS.
The following laws shall apply, as prescribed by this
chapter, to all employing offices (including employing offices
within the meaning of section 411, to the extent prescribed
therein):
(1) The Fair Labor Standards Act of 1938.
(2) Title VII of the Civil Rights Act of 1964.
(3) The Americans with Disabilities Act of 1990.
(4) The Age Discrimination in Employment Act of 1967.
(5) The Family and Medical Leave Act of 1993.
(6) The Occupational Safety and Health Act of 1970.
(7) Chapter 71 (relating to Federal service labor-
management relations) of title 5.
(8) The Employee Polygraph Protection Act of 1988.
(9) The Worker Adjustment and Retraining Notification
Act.
(10) The Rehabilitation Act of 1973.
(11) Chapter 43 (relating to veterans' employment and
reemployment) of title 38.
Subchapter II--Extension of Rights and Protections
PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR
STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
SEC. 411. RIGHTS AND PROTECTIONS UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE REHABILITATION ACT OF 1973, AND
TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF
1990.
(a) Discriminatory Practices Prohibited.--All personnel
actions affecting covered employees shall be made free from any
discrimination based on--
(1) race, color, religion, sex, or national origin,
within the meaning of section 703 of the Civil Rights
Act of 1964;
(2) age, within the meaning of section 15 of the Age
Discrimination in Employment Act of 1967; or
(3) disability, within the meaning of section 501 of
the Rehabilitation Act of 1973 and sections 102 through
104 of the Americans with Disabilities Act of 1990.
(b) Remedy.--
(1) Civil rights.--The remedy for a violation of
subsection (a)(1) shall be--
(A) such damages as would be appropriate if
awarded under section 706(g) of the Civil
Rights Act of 1964; and
(B) such compensatory damages as would be
appropriate if awarded under section 1977 of
the Revised Statutes, or as would be
appropriate if awarded under sections
1977A(a)(1), 1977A(b)(2), and, irrespective of
the size of the employing office,
1977A(b)(3)(D) of the Revised Statutes.
(2) Age discrimination.--The remedy for a violation
of subsection (a)(2) shall be--
(A) such damages as would be appropriate if
awarded under section 15(c) of the Age
Discrimination in Employment Act of 1967; and
(B) such liquidated damages as would be
appropriate if awarded under section 7(b) of
such Act.
In addition, the waiver provisions of section 7(f) of
such Act shall apply to covered employees.
(3) Disabilities discrimination.--The remedy for a
violation of subsection (a)(3) shall be--
(A) such damages as would be appropriate if
awarded under section 505(a)(1) of the
Rehabilitation Act of 1973 or section 107(a) of
the Americans with Disabilities Act of 1990;
and
(B) such compensatory damages as would be
appropriate if awarded under sections
1977A(a)(2), 1977A(a)(3), 1977A(b)(2), and,
irrespective of the size of the employing
office, 1977A(b)(3)(D) of the Revised Statutes.
(c) Definitions.--Except as otherwise specifically provided
in this section, as used in this section:
(1) Covered employee.--The term ``covered employee''
means any employee of a unit of the executive branch,
including the Executive Office of the President,
whether appointed by the President or by any other
appointing authority in the executive branch, who is
not otherwise entitled to bring an action under any of
the statutes referred to in subsection (a), but does
not include any individual--
(A) whose appointment is made by and with the
advice and consent of the Senate;
(B) who is appointed to an advisory
committee, as defined in section 3(2) of the
Federal Advisory Committee Act; or
(C) who is a member of the uniformed
services.
(2) Employing office.--The term ``employing office'',
with respect to a covered employee, means the office,
agency, or other entity in which the covered employee
is employed (or sought employment or was employed in
the case of an applicant or former employee,
respectively).
(d) Applicability.--Subsections (a) through (c), and section
417 (to the extent that it relates to any matter under this
section), shall apply with respect to violations occurring on
or after the effective date of this chapter.
SEC. 412. RIGHTS AND PROTECTIONS UNDER THE FAMILY AND MEDICAL LEAVE ACT
OF 1993.
(a) Family and Medical Leave Rights and Protections
Provided.--
(1) In general.--The rights and protections
established by sections 101 through 105 of the Family
and Medical Leave Act of 1993 shall apply to covered
employees.
(2) Definitions.--For purposes of the application
described in paragraph (1)--
(A) the term ``employer'' as used in the
Family and Medical Leave Act of 1993 means any
employing office; and
(B) the term ``eligible employee'' as used in
the Family and Medical Leave Act of 1993 means
a covered employee who has been employed in any
employing office for 12 months and for at least
1,250 hours of employment during the previous
12 months.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such damages, including liquidated damages, as would
be appropriate if awarded under paragraph (1) of section 107(a)
of the Family and Medical Leave Act of 1993.
SEC. 413. RIGHTS AND PROTECTIONS UNDER THE FAIR LABOR STANDARDS ACT OF
1938.
(a) Fair Labor Standards.--
(1) In general.--The rights and protections
established by subsections (a)(1) and (d) of section 6,
section 7, and section 12(c) of the Fair Labor
Standards Act of 1938 shall apply to covered employees.
(2) Interns and volunteers.--For the purposes of this
section, the term ``covered employee'' does not include
an intern or a volunteer as defined in regulations
under subsection (c).
(3) Compensatory time.--Except as provided in
regulations under subsection (c)(3), covered employees
may not receive compensatory time in lieu of overtime
compensation.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such damages, including liquidated damages, as would
be appropriate if awarded under section 16(b) of the Fair Labor
Standards Act of 1938.
(c) Regulations To Implement Section.--
(1) In general.--The President shall issue
regulations to implement this section.
(2) Agency regulations.--Except as provided in
paragraph (3), the regulations issued under paragraph
(1) shall be the same as substantive regulations
promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsection (a)
except insofar as the President may determine, for good
cause shown and stated together with the regulation,
that a modification of such regulations would be more
effective for the implementation of the rights and
protections under this section.
(3) Irregular work schedules.--The President shall
issue regulations for covered employees whose work
schedules directly depend on the schedule of the
President or the Vice President that shall be
comparable to the provisions in the Fair Labor
Standards Act of 1938 that apply to employees who have
irregular work schedules.
SEC. 414. RIGHTS AND PROTECTIONS UNDER THE EMPLOYEE POLYGRAPH
PROTECTION ACT OF 1988.
(a) Polygraph Practices Prohibited.--No employing office may
require a covered employee to take a lie detector test where
such a test would be prohibited if required by an employer
under paragraph (1), (2), or (3) of section 3 of the Employee
Polygraph Protection Act of 1988. In addition, the waiver
provisions of section 6(d) of such Act shall apply to covered
employees.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such damages as would be appropriate if awarded under
section 6(c)(1) of the Employee Polygraph Protection Act of
1988.
(c) Regulations To Implement Section.--
(1) In general.--The President shall issue
regulations to implement this section.
(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive
regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in
subsections (a) and (b) except insofar as the President
may determine, for good cause shown and stated together
with the regulation, that a modification of such
regulations would be more effective for the
implementation of the rights and protections under this
section.
SEC. 415. RIGHTS AND PROTECTIONS UNDER THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT.
(a) Worker Adjustment and Retraining Notification Rights.--
(1) In general.--Except as provided in paragraph (2),
no employing office shall be closed or mass layoff
ordered within the meaning of section 3 of the Worker
Adjustment and Retraining Notification Act until the
end of a 60-day period after the employing office
serves written notice of such prospective closing or
layoff to representatives of covered employees or, if
there are no representatives, to covered employees.
(2) Exception.--
(A) In general.--In the event that a
President (hereinafter in this paragraph
referred to as the ``previous President'') does
not succeed himself in office as a result of
the election of a new President, no notice or
waiting period shall be required under
paragraph (1) with respect to the separation of
any individual described in subparagraph (B),
if such separation occurs pursuant to a closure
or mass layoff ordered after the term of the
new President commences.
(B) Description of individuals.--An
individual described in this subparagraph is
any covered employee serving pursuant to an
appointment made during--
(i) the term of office of the
previous President; or
(ii) any term, earlier than the term
referred to in clause (i), during which
such previous President served as
President or Vice President.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such damages as would be appropriate if awarded under
paragraphs (1), (2), and (4) of section 5(a) of the Worker
Adjustment and Retraining Notification Act.
(c) Regulations To Implement Section.--
(1) In general.--The President shall issue
regulations to implement this section.
(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive
regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in
subsection (a) except insofar as the President may
determine, for good cause shown and stated together
with the regulation, that a modification of such
regulations would be more effective for the
implementation of the rights and protections under this
section.
SEC. 416. RIGHTS AND PROTECTIONS RELATING TO VETERANS' EMPLOYMENT AND
REEMPLOYMENT.
(a) Employment and Reemployment Rights of Members of the
Uniformed Services.--
(1) In general.--It shall be unlawful for an
employing office to--
(A) discriminate, within the meaning of
subsections (a) and (b) of section 4311 of
title 38, against an eligible employee;
(B) deny to an eligible employee reemployment
rights within the meaning of sections 4312 and
4313 of title 38; or
(C) deny to an eligible employee benefits
within the meaning of sections 4316, 4317, and
4318 of title 38.
(2) Definition.--For purposes of this section, the
term ``eligible employee'' means a covered employee
performing service in the uniformed services, within
the meaning of section 4303(13) of title 38, whose
service has not been terminated upon the occurrence of
any of the events enumerated in section 4304 of such
title.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such damages as would be appropriate if awarded under
paragraphs (1) and (2)(A) of section 4323(c) of title 38.
(c) Regulations To Implement Section.--
(1) In general.--The President shall issue
regulations to implement this section.
(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive
regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in
subsection (a) except to the extent that the President
may determine, for good cause shown and stated together
with the regulation, that a modification of such
regulations would be more effective for the
implementation of the rights and protections under this
section.
SEC. 417. PROHIBITION OF INTIMIDATION OR REPRISAL.
(a) In General.--It shall be unlawful for an employing office
to intimidate, take reprisal against, or otherwise discriminate
against, any covered employee because the covered employee has
opposed any practice made unlawful by this chapter, or because
the covered employee has initiated proceedings, made a charge,
or testified, assisted, or participated in any manner in a
hearing or other proceeding under this chapter.
(b) Remedy.--A violation of subsection (a) may be remedied by
any legal remedy available to redress the practice opposed by
the covered employee or other violation of law as to which the
covered employee initiated proceedings, made a charge, or
engaged in other conduct protected under subsection (a).
(c) Definitions.--For purposes of applying this section with
respect to any practice or other matter to which section 411
relates, the terms ``employing office'' and ``covered
employee'' shall each be considered to have the meaning given
to it by such section.
PART B--PUBLIC ACCESS PROVISIONS UNDER THE AMERICANS WITH DISABILITIES
ACT OF 1990
SEC. 420. RIGHTS AND PROTECTIONS UNDER THE AMERICANS WITH DISABILITIES
ACT OF 1990.
(a) Rights and Protections.--The rights and protections
against discrimination in the provision of public services and
accommodations established by sections 201, 202, and 204, and
sections 302, 303, and 309, of the Americans with Disabilities
Act of 1990 shall apply, to the extent that public services,
programs, or activities are provided, with respect to the White
House and its appurtenant grounds and gardens, the Old
Executive Office Building, the New Executive Office Buildings,
and any other facility to the extent that offices are provided
for employees of the Executive Office of the President.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such remedy as would be appropriate if awarded under
section 203 or 308 of the Americans with Disabilities Act of
1990, as the case may be, except that, with respect to any
claim of employment discrimination, the exclusive remedy shall
be under section 411 of this title. A remedy under the
preceding sentence shall be enforced in accordance with
applicable provisions of such section 203 or 308, as the case
may be.
(c) Definition.--For purposes of the application under this
section of the Americans with Disabilities Act of 1990, the
term ``public entity'' as used in such Act, means, to the
extent that public services, programs, or activities are
provided, the White House and its appurtenant grounds and
gardens, the Old Executive Office Building, the New Executive
Office Buildings, and any other facility to the extent that
offices are provided for employees of the Executive Office of
the President.
PART C--OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
SEC. 425. RIGHTS AND PROTECTIONS UNDER THE OCCUPATIONAL SAFETY AND
HEALTH ACT OF 1970; PROCEDURES FOR REMEDY OF
VIOLATIONS.
(a) Occupational Safety and Health Protections.--
(1) In general.--Each employing office and each
covered employee shall comply with the provisions of
section 5 of the Occupational Safety and Health Act of
1970.
(2) Definitions.--For purposes of the application
under this section of the Occupational Safety and
Health Act of 1970--
(A) the term ``employer'' as used in such Act
means an employing office; and
(B) the term ``employee'' as used in such Act
means a covered employee.
(b) Remedy.--The remedy for a violation of subsection (a)
shall be an order to correct the violation, including such
order as would be appropriate if issued under section 13(a) of
the Occupational Safety and Health Act of 1970.
(c) Procedures.--
(1) Requests for inspections.--Upon written request
of any employing office or covered employee, the
Secretary of Labor shall have the authority to inspect
and investigate places of employment under the
jurisdiction of employing offices in accordance with
subsections (a), (d), (e), and (f) of section 8 of the
Occupational Safety and Health Act of 1970.
(2) Citations, notices, and notifications.--The
Secretary of Labor shall have the authority, in
accordance with sections 9 and 10 of the Occupational
Safety and Health Act of 1970, to issue--
(A) a citation or notice to any employing
office responsible for correcting a violation
of subsection (a); or
(B) a notification to any employing office
that the Secretary of Labor believes has failed
to correct a violation for which a citation has
been issued within the period permitted for its
correction.
(3) Hearings and review.--If after issuing a citation
or notification, the Secretary of Labor determines that
a violation has not been corrected--
(A) the citation and notification shall be
deemed a final order (within the meaning of
section 10(b) of the Occupational Safety and
Health Act of 1970) if the employer fails to
notify the Secretary of Labor within 15 days
(excluding Saturdays, Sundays, and Federal
holidays) after receipt of the notice that he
intends to contest the citation or
notification; or
(B) opportunity for a hearing before the
Occupational Safety and Health Review
Commission shall be afforded in accordance with
section 10(c) of the Occupational Safety and
Health Act of 1970, if the employer gives
timely notice to the Secretary that he intends
to contest the citation or notification.
(4) Variance procedures.--An employing office may
request from the Secretary of Labor an order granting a
variance from a standard made applicable by this
section, in accordance with sections 6(b)(6) and 6(d)
of the Occupational Safety and Health Act of 1970.
(5) Judicial review.--Any person or employing office
aggrieved by a final decision of the Occupational
Safety and Health Review Commission under paragraph (3)
or the Secretary of Labor under paragraph (4) may file
a petition for review with the United States Court of
Appeals for the Federal Circuit pursuant to section
455.
(6) Compliance date.--If new appropriated funds are
necessary to correct a violation of subsection (a) for
which a citation is issued, or to comply with an order
requiring correction of such a violation, correction or
compliance shall take place as soon as possible, but
not later than the end of the fiscal year following the
fiscal year in which the citation is issued or the
order requiring correction becomes final and not
subject to further review.
(d) Regulations To Implement Section.--
(1) In general.--The President shall issue
regulations to implement this section.
(2) Agency regulations.--The regulations issued under
paragraph (1) shall be the same as substantive
regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in
subsection (a) except to the extent that the President
may determine, for good cause shown and stated together
with the regulation, that a modification of such
regulations would be more effective for the
implementation of the rights and protections under this
section.
(3) Employing office responsible for correction.--The
regulations issued under paragraph (1) shall include a
method of identifying, for purposes of this section and
for different categories of violations of subsection
(a), the employing office responsible for correction of
a particular violation.
PART D--LABOR-MANAGEMENT RELATIONS
SEC. 430. APPLICATION OF CHAPTER 71 OF TITLE 5, RELATING TO FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS; PROCEDURES FOR
REMEDY OF VIOLATIONS.
(a) Labor-Management Rights.--Chapter 71 of title 5 shall
apply to employing offices and to covered employees and
representatives of those employees, except that covered
employees shall not have a right to reinstatement pursuant to
section 7118(a)(7)(C) or 7123 of title 5.
(b) Definition.--For purposes of the application under this
section of chapter 71 of title 5, the term ``agency'' as used
in such chapter means an employing office.
PART E--GENERAL
SEC. 435. GENERALLY APPLICABLE REMEDIES AND LIMITATIONS.
(a) Attorney's Fees.--If a covered employee, with respect to
any claim under this chapter, or a qualified person with a
disability, with respect to any claim under section 420, is a
prevailing party in any proceeding under section 453(1), 455,
or 456, the administrative agency or court, as the case may be,
may award attorney's fees, expert fees, and any other costs as
would be appropriate if awarded under section 706(k) of the
Civil Rights Act of 1964.
(b) Interest.--In any proceeding under section 453(1), 455,
or 456, the same interest to compensate for delay in payment
shall be made available as would be appropriate if awarded
under section 717(d) of the Civil Rights Act of 1964.
(c) Civil Penalties and Punitive Damages.--Except as
otherwise provided in this chapter, no civil penalty or
punitive damages may be awarded with respect to any claim under
this chapter.
(d) Exclusive Procedure.--
(1) In general.--Except as provided in paragraph (2),
no person may commence an administrative or judicial
proceeding to seek a remedy for the rights and
protections afforded by this chapter except as provided
in this chapter.
(2) Veterans.--A covered employee under section 416
may also utilize any provisions of chapter 43 of title
38 that are applicable to that employee.
(e) Scope of Remedy.--Only a covered employee who has
undertaken and completed the procedures described in section
452 may be granted a remedy under part A of this subchapter.
(f) Construction.--
(1) Definitions and exemptions.--Except where
inconsistent with definitions and exemptions provided
in this chapter, the definitions and exemptions in the
laws made applicable by this chapter shall apply under
this chapter.
(2) Size limitations.--Notwithstanding paragraph (1),
provisions in the laws made applicable under this
chapter (other than paragraphs (2) and (3) of section
2(a) of the Worker Adjustment and Retraining
Notification Act) determining coverage based on size,
whether expressed in terms of numbers of employees,
amount of business transacted, or other measure, shall
not apply in determining coverage under this chapter.
(g) Definitions Relating to Section 411.--For purposes of
applying this section with respect to any practice or other
matter to which section 411 relates, the terms ``employing
office'' and ``covered employee'' shall each be considered to
have the meaning given to it by such section.
Subchapter III--Administrative and Judicial Dispute-Resolution
Procedures
SEC. 451. PROCEDURE FOR CONSIDERATION OF ALLEGED VIOLATIONS.
The procedure for consideration of alleged violations of part
A of subchapter II consists of--
(1) counseling and mediation as provided in section
452; and
(2) election, as provided in section 453, of either--
(A) an administrative proceeding as provided
in section 453(1) and judicial review as
provided in section 455; or
(B) a civil action in a district court of the
United States as provided in section 456.
SEC. 452. COUNSELING AND MEDIATION.
(a) In General.--The President shall by regulation establish
procedures substantially similar to those under sections 402
and 403 of the Congressional Accountability Act of 1995 for the
counseling and mediation of alleged violations of a law made
applicable under part A of subchapter II.
(b) Exhaustion Requirement.--A covered employee who has not
exhausted counseling and mediation under subsection (a) shall
be ineligible to make any election under section 453 or
otherwise pursue any further form of relief under this
subchapter.
SEC. 453. ELECTION OF PROCEEDING.
Not later than 90 days after a covered employee receives
notice of the end of the period of mediation, but no sooner
than 30 days after receipt of such notification, such covered
employee may either--
(1) file a complaint with the appropriate
administrative agency, as determined under section 454;
or
(2) file a civil action in accordance with section
456 in the United States district court for the
district in which the employee is employed or for the
District of Columbia.
SEC. 454. APPROPRIATE AGENCIES.
(a) In General.--Except as provided in subsection (b), the
appropriate agency under this section with respect to an
alleged violation of part A of subchapter II shall be the
Board.
(b) Exceptions.--
(1) Discrimination.--For purposes of any action
arising under section 411 (or any action alleging
intimidation, reprisal, or discrimination under section
417 relating to any practice made unlawful under
section 411), the appropriate agency shall be the Equal
Employment Opportunity Commission, and the complaint in
any such action shall be processed under the same
administrative procedures as any such complaint filed
by any other Federal employee.
(2) Mixed cases.--However, in the case of any covered
employee (within the meaning of section 411(c)(1)) who
has been affected by an action which an employee of an
executive agency may appeal to the Board and who
alleges that a basis for the action was discrimination
prohibited by section 411 (or any action alleging
intimidation, reprisal, or discrimination under section
417 relating to any practice made unlawful under
section 411), the initial appropriate agency shall be
the Board, and such matter shall thereafter be
processed in accordance with section 7702 (a)-(d)
(disregarding paragraph (2) of such subsection (a)) and
(f) of title 5.
(3) Judicial review.--Notwithstanding any other
provision of law (including any provision of law
referenced in paragraph (1) or (2)), judicial review of
any administrative decision under this subsection shall
be by the court specified in section 455.
SEC. 455. JUDICIAL REVIEW.
(a) In General.--The United States Court of Appeals for the
Federal Circuit shall have jurisdiction over a petition for
review of a final decision under this chapter of--
(1) an appropriate agency (as determined under
section 454);
(2) the Federal Labor Relations Authority under
chapter 71 of title 5, notwithstanding section 7123 of
such title; or
(3) the Secretary of Labor or the Occupational Safety
and Health Review Commission, made under part C of
subchapter II.
(b) Filing Deadline.--Any petition for review under this
section must be filed within 30 days after the date the
petitioner receives notice of the final decision.
SEC. 456. CIVIL ACTION.
(a) Jurisdiction.--The district courts of the United States
shall have jurisdiction over any civil action commenced under
section 453(2) and this section by a covered employee.
(b) Parties.--The defendant shall be the employing office
alleged to have committed the violation, or in which the
violation is alleged to have occurred.
(c) Jury Trial.--Any party may demand a jury trial where a
jury trial would be available in an action against a private
defendant under the relevant law made applicable by this
chapter. In any case in which a violation of section 411 is
alleged, the court shall not inform the jury of the maximum
amount of compensatory damages available under section
411(b)(1) or 411(b)(3).
SEC. 457. JUDICIAL REVIEW OF REGULATIONS.
In any proceeding brought under section 455 or 456 in which
the application of a regulation issued under this chapter is at
issue, the court may review the validity of the regulation in
accordance with the provisions of subparagraphs (A) through (D)
of section 706(2) of title 5. If the court determines that the
regulation is invalid, the court shall apply, to the extent
necessary and appropriate, the most relevant substantive
executive agency regulation promulgated to implement the
statutory provisions with respect to which the invalid
regulation was issued. Except as provided in this section, the
validity of regulations issued under this chapter is not
subject to judicial review.
SEC. 458. OTHER JUDICIAL REVIEW PROHIBITED.
Except as expressly authorized by this chapter, the
compliance or noncompliance with the provisions of this chapter
and any action taken pursuant to this chapter shall not be
subject to judicial review.
SEC. 459. EFFECT OF FAILURE TO ISSUE REGULATIONS.
In any proceeding under section 453(1), 455, or 456, if the
President has not issued a regulation on a matter for which
this chapter requires a regulation to be issued, the
administrative agency or court, as the case may be, shall
apply, to the extent necessary and appropriate, the most
relevant substantive executive agency regulation promulgated to
implement the statutory provision at issue in the proceeding.
SEC. 460. EXPEDITED REVIEW OF CERTAIN APPEALS.
(a) In General.--An appeal may be taken directly to the
Supreme Court of the United States from any interlocutory or
final judgment, decree, or order of a court upon the
constitutionality of any provision of this chapter.
(b) Jurisdiction.--The Supreme Court shall, if it has not
previously ruled on the question, accept jurisdiction over the
appeal referred to in subsection (a), advance the appeal on the
docket, and expedite the appeal to the greatest extent
possible.
SEC. 461. PAYMENTS.
A judgment, award, or compromise settlement against the
United States under this chapter (including any interest and
costs) shall be paid--
(1) under section 1304 of title 31, if it arises out
of an action commenced in a district court of the
United States (or any appeal therefrom); or
(2) out of amounts otherwise appropriated or
available to such office, if it arises out of an
administrative proceeding under this chapter (or any
appeal therefrom).
SEC. 462. CONFIDENTIALITY.
(a) Counseling.--All counseling under section 452 shall be
strictly confidential, except that, with the consent of the
covered employee, the employing office may be notified.
(b) Mediation.--All mediation under section 452 shall be
strictly confidential.
SEC. 463. DEFINITIONS.
For purposes of applying this subchapter, the terms
``employing office'' and ``covered employee'' shall each, to
the extent that section 411 is involved, be considered to have
the meaning given to it by such section.
Subchapter IV--Effective Date
SEC. 471. EFFECTIVE DATE.
This chapter shall take effect 1 year after the date of the
enactment of the Presidential and Executive Office
Accountability Act.
----------
TITLE 31, UNITED STATES CODE
* * * * * * *
CHAPTER 5--OFFICE OF MANAGEMENT AND BUDGET
* * * * * * *
SUBCHAPTER I--ORGANIZATION
* * * * * * *
Sec. 503. Functions of Deputy Director for Management
(a) Subject to the direction and approval of the Director,
the Deputy Director for Management shall establish
governmentwide financial management policies for executive
agencies and shall perform the following financial management
functions:
(1) * * *
* * * * * * *
(7) Develop and maintain qualification standards for
agency Chief Financial Officers and for agency Deputy
Chief Financial Officers appointed under sections 901
and 903, [respectively.] respectively (excluding any
officer appointed under section 901(c) or 903(c)).
(8) Provide advice to agency heads with respect to
the selection of agency Chief Financial Officers and
Deputy Chief Financial [Officers.] Officers (excluding
any officer appointed under section 901(c) or 903(c)).
* * * * * * *
Subchapter VI--Property Management
* * * * * * *
Chapter 9--Agency Chief Financial Officers
Sec. 901. Establishment of agency Chief Financial Officers
(a) * * *
* * * * * * *
(c)(1) There shall be within the Executive Office of the
President a Chief Financial Officer, who shall be appointed by
the President from among individuals meeting the standards
described in subsection (a)(3).
(2) The Chief Financial Officer under this subsection shall
have the same authority and shall perform the same functions as
apply in the case of a Chief Financial Officer under section
902.
(3) The Director of the Office of Management and Budget shall
prescribe any regulations which may be necessary to ensure
that, for purposes of implementing paragraph (2), the Executive
Office of the President shall, to the extent practicable and
appropriate, be treated (including for purposes of financial
statements under section 3515) in the same way as an agency
described in subsection (b).
Sec. 903. Establishment of agency Deputy Chief Financial Officers
(a) * * *
(c)(1) There shall be within the Executive Office of the
President a Deputy Chief Financial Officer, who,
notwithstanding any provision of subsection (b), shall be
appointed by the President from among individuals meeting the
standards described in section 901(a)(3).
(2) The Deputy Chief Financial Officer under this subsection
shall have the same authority and shall perform the same
functions as apply in the case of the Deputy Chief Financial
Officer of an agency described in subsection (b).
----------
SECTION 202 OF TITLE 18, UNITED STATES CODE
* * * * * * *
Sec. 202. Definitions
[(a) For the purpose of sections 203, 205, 207, 208, and 209
of this title the term ``special Government employee'' shall
mean an officer or employee of the executive or legislative
branch of the United States Government, of any independent
agency of the United States or of the District of Columbia, who
is retained, designated, appointed, or employed to perform,
with or without compensation, for not to exceed one hundred and
thirty days during any period of three hundred and sixty-five
consecutive days, temporary duties either on a full-time or
intermittent basis, a part-time United States commissioner, a
part-time United States magistrate, or, regardless of the
number of days of appointment, an independent counsel appointed
under chapter 40 of title 28 and any person appointed by that
independent counsel under section 594(c) of title 28.
Notwithstanding the next preceding sentence, every person
serving as a part-time local representative of a Member of
Congress in the Member's home district or State shall be
classified as a special Government employee. Notwithstanding
section 29(c) and (d) of the Act of August 10, 1956 (70A Stat.
632; 5 U.S.C. 30r(c) and (d)), a Reserve officer of the Armed
Forces, or an officer of the National Guard of the United
States, unless otherwise an officer or employee of the United
States, shall be classified as a special Government employee
while on active duty solely for training. A Reserve officer of
the Armed Forces or an officer of the National Guard of the
United States who is voluntarily serving a period of extended
active duty in excess of one hundred and thirty days shall be
classified as an officer of the United States within the
meaning of section 203 and sections 205 through 209 and 218. A
Reserve officer of the Armed Forces or an officer of the
National Guard of the United States who is serving
involuntarily shall be classified as a special Government
employee. The terms ``officer or employee'' and ``special
Government employee'' as used in sections 203, 205, 207 through
209, and 218, shall not include enlisted members of the Armed
Forces.]
(a) For the purpose of sections 203, 205, 207, 208, and 209
of this title the term ``special Government employee'' shall
mean--
(1) an officer or employee as defined in subsection
(c) who is retained, designated, appointed, or employed
in the legislative or executive branch of the United
States Government, in any independent agency of the
United States, or in the government of the District of
Columbia, and who, at the time of retention,
designation, appointment or employment, is expected to
perform temporary duties on a full-time or intermittent
basis for not to exceed one hundred and thirty days
during any period of three hundred and sixty five
consecutive days;
(2) a part-time United States commissioner;
(3) a part-time United States magistrate;
(4) an independent counsel appointed under chapter 40
of title 28 and any person appointed by that
independent counsel under section 594(c) of title 28;
(5) a person serving as a part-time local
representative of a Member of Congress in the Member's
home district or State; and
(6) a Reserve officer of the Armed Forces, or an
officer of the National Guard of the United States, who
is not otherwise an officer or employee as defined in
subsection (c) who is--
(A) on active duty solely for training
(notwithstanding section 2105(d) of title 5);
(B) serving voluntarily for not to exceed one
hundred and thirty days during any period of
three hundred and sixty five consecutive days;
or
(C) serving involuntarily.
* * * * * * *
[(c) Except as otherwise provided in such sections, the terms
``officer'' and ``employee'' in sections 203, 205, 207 through
209, and 218 of this title shall not include the President, the
Vice President, a Member of Congress, or a Federal judge.]
(c) The terms ``officer'' and ``employee'' in sections 203,
205, 207 through 209, and 218 of this title shall include--
(1) an individual who is retained, designated,
appointed or employed in the United States Government
or in the government of the District of Columbia, to
perform, with or without compensation and subject to
the supervision of the President, the Vice President, a
Member of Congress, a Federal judge or an officer or
employee of the United States or of the government of
the District of Columbia, a Federal or District of
Columbia function under authority of law or an
Executive act. As used in this section, a Federal or
District of Columbia function shall include, but not be
limited to--
(A) supervising, managing, directing or
overseeing a Federal or District of Columbia
officer or employee in the performance of such
officer's or employee's official duties;
(B) providing regular advice, counsel, or
recommendations to the President, the Vice
President, a Member of Congress, or any Federal
or District of Columbia officer or employee, or
conducting meetings involving any of those
individuals, as part of the Federal or District
of Columbia government's internal deliberative
process; or
(C) obligating funds of the United States or
the District of Columbia;
(2) a Reserve officer or officer of the National
Guard of the United States who is voluntarily serving a
period of extended active duty in excess of 130 days;
and
(3) the President, the Vice President, a Member of
Congress or a Federal judge only if specified in the
section.
* * * * * * *
(f) The terms ``officer or employee'' and ``special
Government employee'' as used in sections 203, 205, 207 through
209, and 218, shall not include enlisted members of the Armed
Forces, nor shall they include an individual who is retained,
designated or appointed without compensation specifically to
act as a representative of a non-Federal (or non-District of
Columbia) interest on an advisory committee established
pursuant to the Federal Advisory Committee Act or any similarly
established committee whose meetings are generally open to the
public. The non-Federal interest to be represented must be
specifically set forth in the statute, charter, or Executive
act establishing the committee.
----------
SECTION 320 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
[SEC. 320. COVERAGE OF PRESIDENTIAL APPOINTEES.
[(a) In General.--
[(1) Application.--The rights, protections, and
remedies provided pursuant to section 302 and 307(h) of
this title shall apply with respect to employment of
Presidential appointees.
[(2) Enforcement by administrative action.--Any
Presidential appointee may file a complaint alleging a
violation, not later than 180 days after the occurrence
of the alleged violation, with the Equal Employment
Opportunity Commission, or such other entity as is
designated by the President by Executive Order, which,
in accordance with the principles and procedures set
forth in sections 554 through 557 of title 5, United
States Code, shall determine whether a violation has
occurred and shall set forth its determination in a
final order. If the Equal Employment Opportunity
Commission, or such other entity as is designated by
the President pursuant to this section, determines that
a violation has occurred, the final order shall also
provide for appropriate relief.
[(3) Judicial review.--
[(A) In general.--Any party aggrieved by a
final order under paragraph (2) may petition
for review by the United States Court of
Appeals for the Federal Circuit.
[(B) Law applicable.--Chapter 158 of title
28, United States Code, shall apply to a review
under this section except that the Equal
Employment Opportunity Commission or such other
entity as the President may designate under
paragraph (2) shall be an ``agency'' as that
term is used in chapter 158 of title 28, United
States Code.
[(C) Standard of review.--To the extent
necessary to decision and when presented, the
reviewing court shall decide all relevant
questions of law and interpret constitutional
and statutory provisions. The court shall set
aside a final order under paragraph (2) if it
is determined that the order was--
[(i) arbitrary, capricious, an abuse
of discretion, or otherwise not
consistent with law;
[(ii) not made consistent with
required procedures; or
[(iii) unsupported by substantial
evidence.
In making the foregoing determinations, the
court shall review the whole record or those
parts of it cited by a party, and due account
shall be taken of the rule of prejudicial
error.
[(D) Attorney's fees.--If the presidential
appointee is the prevailing party in a
proceeding under this section, attorney's fees
may be allowed by the court in accordance with
the standards prescribed under section 706(k)
of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5(k)).
[(b) Presidential Appointee.--For purposes of this section,
the term ``Presidential appointee'' means any officer or
employee, or an applicant seeking to become an officer or
employee, in any unit of the Executive Branch, including the
Executive Office of the President, whether appointed by the
President or by any other appointing authority in the Executive
Branch, who is not already entitled to bring an action under
any of the statutes referred to in section 302 but does not
include any individual--
[(1) whose appointment is made by and with the advice
and consent of the Senate;
[(2) who is appointed to an advisory committee, as
defined in section 3(2) of the Federal Advisory
Committee Act (5 U.S.C. App.); or
[(3) who is a member of the uniformed services]
* * * * * * *
----------
INSPECTOR GENERAL ACT OF 1978
* * * * * * *
SEC. 8H. SPECIAL PROVISIONS CONCERNING INSPECTOR GENERAL OF THE
EXECUTIVE OFFICE OF THE PRESIDENT.
(a) Authority, Direction, and Control of President.--
Notwithstanding the last 2 sentences of section 3(a), the
Inspector General of the Executive Office of the President
shall be under the authority, direction, and control of the
President with respect to audits or investigations, or the
issuance of subpoenas, which require access to information
concerning--
(1) ongoing criminal investigations or proceedings;
(2) undercover operations;
(3) the identity of confidential sources, including
protected witnesses;
(4) deliberations and decisions on policy matters,
including documented information used as a basis for
making policy decisions;
(5) intelligence or counterintelligence matters; or
(6) other matters the disclosure of which would
constitute a serious threat to the national security,
or would cause significant impairment to the national
interests (including interests in foreign trade
negotiations), of the United States.
(b) Prohibiting Activities of Inspector General.--With
respect to information described in subsection (a), the
President may prohibit the Inspector General of the Executive
Office of the President from carrying out or completing any
audit or investigation, or issuing any subpoena, after the
Inspector General has decided to initiate, carry out, or
complete such audit or investigation or to issue such subpoena,
if the President determines that--
(1) the disclosure of that information would
interfere with the core functions of the constitutional
responsibilities of the President; and
(2) the prohibition is necessary to prevent the
disclosure of that information.
(c) Notice.--
(1) Notice to inspector general.--If the President
makes a determination referred to in subsection (b)(1)
or (2), the President shall within 30 days notify the
Inspector General in writing stating the reasons for
that determination.
(2) Notice to congress.--Within 30 days after
receiving a notice under paragraph (1), the Inspector
General shall transmit a copy of the notice to each of
the Chairman and the ranking minority party member of
the Committee on Government Reform and Oversight of the
House of Representatives, the Committee on Governmental
Affairs of the Senate, and other appropriate committees
or subcommittees of the Congress.
(d) Semiannual Reports.--
(1) Information to be included.--The Inspector
General of the Executive Office of the President shall
include in each semiannual report to the President
under section 5, at a minimum--
(A) a list of the title or subject of each
inspection, investigation, or audit conducted
during the reporting period;
(B) a statement of whether corrective action
has been completed on each significant
recommendation described in previous semiannual
reports, and, in a case where corrective action
has been completed, a description of such
corrective action;
(C) a certification that the Inspector
General has had full and direct access to all
information relevant to the performance of
functions of the Inspector General;
(D) a description of all cases occurring
during the reporting period in which the
Inspector General could not obtain documentary
evidence relevant to any inspection, audit, or
investigation due to a determination of the
President under subsection (b); and
(E) such recommendations as the Inspector
General considers appropriate concerning
legislation to promote economy and efficiency
in the administration of programs and
operations undertaken by the Executive Office
of the President, and to detect and eliminate
fraud, waste, and abuse in such programs and
operations.
(2) Transmission to congress.--Within 30 days after
receiving a semiannual report under section 5 from the
Inspector General of the Executive Office of the
President, the President shall transmit the report to
each of the Chairman and the ranking minority party
member of the Committee on Government Reform and
Oversight of the House of Representatives and the
Committee on Governmental Affairs of the Senate with
any comments the President considers appropriate.
rule of construction of special provisions
Sec. [8G.] 8I The special provisions under section 8, 8A, 8B,
8C, 8D, or 8E of this Act relate only to the establishment
named in such section and no inference shall be drawn from the
presence or absence of a provision in any such section with
respect to an establishment not named in such section or with
respect to a designated Federal entity as defined under section
8F(a).
* * * * * * *
Sec. 11. As used in this Act--
(1) the term ``head of the establishment'' means the
President (with respect only to the Executive Office of
the President), the Secretary of Agriculture, Commerce,
Defense, Education, Energy, Health and Human Services,
Housing and Urban Development, the Interior, Labor,
State, Transportation, or the Treasury; the Attorney
General; the Administrator of the Agency for
International Development, Environmental Protection,
General Services, National Aeronautics and Space, or
Small Business, or Veterans' Affairs; the Director of
the Federal Emergency Management Agency, the Office of
Personnel Management or the United States Information
Agency; the Chairman of the Nuclear Regulatory
Commission or the Railroad Retirement Board; the
Chairperson of the Thrift Depositor Protection
Oversight Board; the Chief Executive Officer of the
Corporation for National and Community Service; the
Administrator of the Community Development Financial
Institutions Fund; and the chief executive officer of
the Resolution Trust Corporation; and the Chairperson
of the Federal Deposit Insurance Corporation; or the
Commissioner of Social Security, Social Security
Administration; as the case may be;
(2) the term ``establishment'' means the Executive
Office of the President, the Department of Agriculture,
Commerce, Defense, Education, Energy, Health and Human
Services, Housing and Urban Development, the Interior,
Justice, Labor, State, Transportation, or the Treasury;
the Agency for International Development, the Community
Development Financial Institutions Fund, the
Environmental Protection Agency, the Federal Emergency
Management Agency, the General Services Administration,
the National Aeronautics and Space Administration, the
Nuclear Regulatory Commission, the Office of Personnel
Management, the Railroad Retirement Board, the
Resolution Trust Corporation, the Federal Deposit
Insurance Corporation, the Small Business
Administration, the United States Information Agency,
the Corporation for National and Community Service, or
the Veterans' Administration, or the Social Security
Administration; as the case may be;
* * * * * * *
X. Committee Recommendation
On July 25, 1996, a quorum being present, the Committee
ordered the bill, as amended, favorably reported to the House
for consideration.
committee on government reform and oversight--104th congress rollcall
Date: July 25, 1996.
Amendment No. 1.
Description: Page 1, in the matter after line 5 and before
line 6, strike the item relating to section 6 (and redesignate
succeeding items accordingly). (Page and line nos. refer to
Committee Print of July 17, 1996.)
Offered By: Mr. Horn.
Voice Vote: Ayes.
Amendment No. 2.
Description: Amendment to the Committee Print at the end of
the bill add the following new section: Sec. . Establishment
of Inspector General for Executive Office of the President.
Offered By: Mr. Bass.
Voice Votes: Ayes.
Final Passage of H.R. 3452.
Offered By: Mr. Horn.
Voice Vote: Ayes.
XI. Congressional Accountability Act; Public Law 104-1; Section
102(b)(3)
This provision applies to the Executive Office of the
President the eleven civil rights, labor and workplace laws
that the CAA applied to Congress.
ADDITIONAL VIEW OF REPRESENTATIVE CAROLYN B. MALONEY
I strongly support the basic goal of H.R. 3452, the
``Presidential and Executive Office Accountability Act,'' which
is to apply the Congressional Accountability Act to the
Executive Office of the President. The Federal government,
including Congress and the entire Executive branch, should be
required to abide by the same laws as the American people. I
offered a number of amendments at the Subcommittee mark-up
which were supported by the Majority. As a result, I was able
to support the improved bill as it was reported by the
Subcommittee.
Unfortunately, an amendment was adopted at the full
Committee which may cause me to oppose this bill, should it
come to the House floor. Rep. Bass offered an amendment to
mandate creating an Inspector General for the White House,
which I oppose for a number of reasons.
First, the Bass amendment is unconstitutional. The Office
of Legal Counsel at the Justice Department has concluded that
it violates the separation of powers doctrine. For the first
time in American history, it would establish an office within
the White House that is statutorily required to report to
Congress on a regular basis. I have attached a copy of their
letter on this issue.
Second, the guiding principle behind the Presidential and
Executive Office Accountability Act is that the President
should be subject to the same laws as the Congress. The Bass
Amendment violates that principle: the Senate has no Inspector
General at all; the House has one, but it is limited to
financial audits of non-legislative offices and reports only to
the leadership.
Third, the amendment is unnecessary. Congress, assisted by
the GAO, exercises its oversight over the President through
hearings and investigations. These safeguards have proven
adequate throughout our history, and there is no need to rush
to create an Inspector General at this time.
Fourth, putting an Inspector General in the White House
would create a new and expensive level of bureaucracy in the
Executive Office of the President, which has traditionally been
a small and flexible organization with only 1700 employees.
Finally, there has not been one day of hearings on this
issue during the 104th Congress. Putting an Inspector General
in the White House would produce a fundamental shift in
relations between two separate branches of government. The Bass
Amendment was offered on the last day of the Government Reform
and Oversight Committee's consideration of this bill, without
any time for thoughtful consideration. Given the complexity of
the matter, hearings are certainly required.
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 24, 1996.
Hon. William F. Clinger,
Chairman, Committee on Government Reform and Oversight, House of
Representatives, Washington, DC.
Dear Mr. Chairman: I am writing to express further views on
H.R. 3452, the ``Presidential and Executive Office
Accountability Act.'' Previously we expressed our support for
the Subcommittee's changes in the bill, which would limit the
remedies to damages only.
We understand that an amendment, embodying the White House
Inspector General Act of 1996, may be offered as an amendment
to H.R. 3452 during the Government Reform Committee's markup of
this legislation tomorrow. This amendment would interfere
significantly with the discharge of the President's
constitutional authority. Accordingly, the Department of
Justice believes that the amendment would raise serious
constitutional concerns and we strongly oppose the amendment on
separation of powers grounds.
The Executive Office of the President is the designation of
the President's closest advisors and aides. The amendment would
add the Executive Office of the President to the list of
Executive establishments subject to the Inspector General Act.
An Inspector General is appointed for each covered
establishment. Inspectors General, along with their staffs, are
to be ``independent and objective units'' within their
respective establishments and are ``to conduct and supervise
audits and investigations relating to the programs and
operations of the establishment;'' ``to provide leadership and
coordination and recommend policies for activities designed (A)
to promote economy, efficiency, and effectiveness in the
administration of, and (B) to prevent and detect fraud and
abuse in, such programs and operations;'' and ``to provide a
means for keeping the head of the establishment and the
Congress fully and currently informed about problems and
deficiencies relating to the administration of such programs
and operations and the necessity for and progress of corrective
action.'' 5 U.S.C. app. 3, section 2.
This general character is supplemented with a variety of
specific duties. Inspectors General are to ``provide policy
direction for and . . . conduct, supervise, and coordinate
audits and investigations,'' review legislative proposals and
make recommendations for legislation relating to their
respective establishments; recommend policies for and actually
conduct and supervise activities to promote ``economy and
efficiency;' in the establishment's administration; detect and
prevent ``fraud and abuse;'' supervise and coordinate
relationships between the establishment and other Federal
agencies, State and local governmental agencies and non-
government entities to promote efficiency and prevent fraud and
abuse; and keep the heads of their respective establishments
and the Congress fully and currently informed about matters
within their jurisdiction and recommend corrective action. Id.
at section 4(a). In addition to these duties, each Inspector
General is required to submit to Congress semiannual reports
extensively detailing the Inspector General's activities and
findings from the preceding period. Id. at section 5.
To carry out these duties, Inspectors General are vested
with wide-ranging authority. Among other things, they are
allowed access to all records, documents, and other materials
relating to their respective establishments that pertain to
their duties, and are authorized to make such investigations
and reports as they deem ``necessary or desirable.'' Id. at
section 6(a).
In discharging their authority, Inspectors General are to
report to and be under the general supervision of the heads of
the establishments to which they are assigned. However, the
head of an establishment may not prohibit or prevent the
Inspector General from initiating, carrying out, or completing
any audit or investigation, or from issuing any subpoena during
the course of any audit or investigation. Id. at section 3(a).
The amendment would depart somewhat from the existing
framework under the Inspector General Act. The Inspector
General in the Executive Office of the President would be
subject to the authority, direction, and control of the
President with respect to audits or investigations or the
issuance of subpoenas that require access to information in any
of six categories.\1\ The President would be permitted to
prohibit such an audit, investigation, or subpoena, but only
after the Inspector General had decided to initiate such action
and only if the President determined that ``the disclosure of
that information would interfere with the core functions of the
constitutional responsibilities of the President'' and that
``the prohibition is necessary to prevent the disclosure of
that information.'' Id. at section 3. If the President
exercised this preventive power, he would be required, within
30 days, to submit in writing the reasons for the
determinations regarding interference with constitutional
responsibilities and the possibility of disclosure to the
Inspector General. The Inspector General, in turn, would be
required to transmit a copy of the President's submission to
specified congressional committees. In addition, the Inspector
General would be required to include a description of the
episode in the public semiannual report.
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\1\ The categories are ongoing criminal investigations or
proceedings, undercover operations, the identity of confidential
sources, deliberations and decisions on policy matters, intelligence or
counterintelligence matters, or other matters the disclosure of which
constitute a serious threat to national security or cause significant
impairment to the national interest. See section 3 (adding section
8F(a) to 5 U.S.C. app. 3).
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These provisions would raise serious concerns about
intrusion on the President's constitutional responsibilities.
The Constitution assigns a variety of powers exclusively to the
President. Examples include the powers to nominate Federal
officers, grant reprieves and pardons, act as commander in
chief, and receive ambassadors and other public ministers. See
U.S. Const. art. II. Congress may not intrude upon the
President's exercise of these exclusive powers. See, e.g.,
Public Citizen v. United States Department of Justice, 491 U.S.
440 (1988) (Kennedy, J., concurring); Buckley v. Valeo, 424
U.S. 1 (1976) (per curiam); United States v. Klein, 80 U.S. (13
Wall.) 128 (1872); Ex Parte Garland, 71 U.S. (4 Wall.) 333
(1866). Yet the amendment threatens just such an intrusion.
Even as to those exclusive powers encompassed within one of
the six categories where the President may stop an audit,
investigations, or subpoena, the bill would intrude upon the
executive function. The Inspector General would have authority
to investigate, audit, and issue subpoenas in these areas
unless the President prevented the Inspector General from
exercising the authority. The President could act only after
the Inspector General decided to investigate, audit, or issue a
subpoena, and, even then, the President would have to make
written findings and submit those findings to the Inspector
General who would transmit them to Congress. In these findings,
the President would have to determine that ``disclosure'' of
the information would ``interfere with the core function of the
constitutional responsibilities of the President.'' But where
the President is exercising, or has exercised, exclusive
constitutional authority, Congress is wholly without authority
to impose such requirements on the President or the President's
advisors.
Furthermore, it is far from clear that all investigations,
audits, or subpoenas concerning the exercise of exclusive
constitutional powers would even fall within any of the six
categories as to which the President would have preventive
authority. For example, unless the deliberations of the
President and his advisors regarding whom to nominate for a
Federal office are ``policy matters,'' the President would be
without statutory authority to prohibit the Inspector General
from performing investigations and audits of the exercise of
that power or from reporting to Congress on these matters.
Another example is the pardon power. Even if the grant of a
reprieve or pardon is a ``criminal * * * proceeding[],'' this
category applies only to ``ongoing'' proceedings. Thus, the
bill would subject the President's deliberations on pardons
that already have been granted to investigation and audit, and
ultimately disclosure. The Constitution prohibits Congress from
doing this.
With regard to those presidential powers that are not
exclusive--powers in those spheres where Congress possesses
authority to legislate--the doctrine of separation of powers
still limits Congress's ability to adopt legislation that
infringes on the President's constitutional role. In this area,
a bill's validity depends on ``the extent to which the bill
prevents the Executive Branch from performing its
constitutionally assigned functions.'' Nixon v. Administrator
of Gen. Servs., 433 U.S. 425, 443 (1977); see Morrison v.
Olson, 487 U.S. 654 (1988), CFTC v. Schor, 478 U.S. 833 (1986).
``Only where the potential for disruption is present must we
then determine whether that impact is justified by an
overriding need to promote objectives within the constitutional
authority of Congress.'' Administrator of Gen. Servs., 425 U.S.
at 443.
Here, where the bill would invade powers exclusively
committed to the President, it is unnecessary also to identify
all of the ways in which the bill could invalidly intrude on
the President's powers that are not exclusive. Rather, we note
only that the amendment would create a strong potential for
extensive interference with the ability of the President to
perform all of his constitutional functions. At the least, the
necessity for the President's constant vigilance about possible
intrusions on his exclusive powers would impede the President's
discharge of his non-exclusive constitutional powers. As we
have recently observed, ``the Constitution's very structure
suggests the importance of maintaining the `hallmarks of
executive administration essential to effective act.' '' The
Constitutional Separation of Powers between the President and
Congress at 12 (May 7, 1996) (quoting Myers v. United States,
272 U.S. 52, 134 (1926)). Application of the Inspector General
Act to the Executive Office of the President would seriously
undermine this constitutional structure and this should be
strongly resisted.
Thank you for the opportunity to present our views on H.R.
3452. The Office of Management and Budget advises that there is
no objection to the submission of this letter from the
standpoint of the Administration's program.
Sincerely,
Ann M. Harkins
(For Andrew Fois, Assistant Attorney General).