However, the Obama administration threatened a veto even before the vote, saying the provisions “would weaken the rights of Federal employees, and be impractical and administratively burdensome to implement. They would also have harmful unintended consequences, while failing to address the issues they are designed to solve and while raising serious constitutional concerns.”
The bill–which combines a number of measures previously approved individually at the committee level–passed on an almost completely partisan 241-181 vote early Thursday morning.
One major provision would essentially apply to Senior Executive Service members government-wide the limits on appeals for SES members at the Veterans Affairs Department under a 2014 law — the SES is the layer of officials, mostly career employees, between mid-level managers and political appointees. These include shortened times to respond to charges, a requirement that a hearing officer issue a decision within 21 days or else the department wins by default, and a ban on further appeals afterward.
Those changes “would raise significant constitutional concerns under the Appointments Clause and the Due Process Clause” that prompted the VA recently to stop using those powers, following a Justice Department decision to not defend them against a court challenge, the administration said in its statement threatening a veto.
“These provisions would significantly alter and diminish important rights and protections that are available to the vast majority of other employees across the government and that are essential to safeguarding employees’ rights. Moreover, these provisions would hamper the Federal government’s efforts to attract and retain top talent committed to serving in the Senior Executive Service,” it said.
The administration also said that several other provisions affecting senior executives, such as a requirement that they rotate among jobs at least every five years, would merely duplicate already existing policy.
Another provision would require annual reporting on the use of “official time” — working time that federal employees may spend on certain union duties — including the total amount of official time granted, the average amount of official time per bargaining unit employee, the activities for which the time was used, the number of employees who spend all their working hours in that status, and the cost to the government in pay, benefits and space provided to unions.
The White House said those requirements “are subjective and virtually impossible to measure” and would require manually collecting information from some 2,000 local bargaining units across the government.
It also objected to provisions requiring the IRS to maintain certain records and to limit rule-making between the November elections and the next presidential inauguration in January.
Several federal employee organizations also came out against the bill in letters to the House.
The Senior Executives Association said the bill “suggests more of an interest in the appearance of reforming and improving government than a real commitment to undertaking the hard work of understanding what the real problems are, working with stakeholders to craft a solution, and holding parties responsible to see improvements through to a conclusion. ”
“Much like previous reform efforts, this bill seems to be a solution in search of a problem, with the solution being to limit due process rights and terminate federal employees,” the National Active and Retired Federal Employees Association said. “The federal government already has in place several tools to deal with poor performers. It is incumbent on federal agencies to ensure their managers use those tools when necessary.”
In its policy statement, the White House did not specifically address several other provisions, however. One would give agency management the sole discretion to make certain decisions regarding information technology, without having to negotiate with employee unions. That is designed to overturn a labor board’s 2014 ruling that the Immigration and Customs Enforcement agency improperly failed to bargain before moving to cut off employees’ access to personal email accounts through agency computers. The agency had tied such use to a rise in cybersecurity incidents.
Nor did it mention language to require the Office of Management and Budget to issue guidance to block access to pornographic or explicit websites from government computers, and to generally extend from one year to two years the probationary period for newly hired federal employees, a time in which they have fewer rights to appeal discipline including firing.
During floor voting the House rejected several Democratic bids to knock out or scale back many of the provisions.
Meanwhile, on Tuesday a new package of proposed changes to disciplinary and other policies for Veterans Affairs Department employees was offered by House Veterans’ Affairs Committee Chairman Jeff Miller (R-Fla.), the latest in a series of such bills.
The bill would shorten the process of appealing discipline to the Merit Systems Protection Board for all VA employees; allow appeals by senior executives there only to an in-house review panel; strengthen protections for whistleblowing employees and require discipline of those who retaliate against them; allow the department to claw back previously paid bonuses and awards from employees later found to have committed misconduct; and reduce the federal retirement benefits of senior executives convicted of felonies related to their official duties.
Several similar proposals are pending in other bills, including a spending bill that recently passed the House but that the Senate has set aside.