Federal Information Systems Safeguards Act of 2016

Floor Speech

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Ms. NORTON. Mr. Chairman, it is a mystery to me why we would want to move forward with this bill. I will have amendments to strike portions of this bill later. I just want to speak to a couple of the reasons.

The extension of the probationary period, for example, may not raise constitutional issues. A GAO report was done and indicated that the problem was not with length of the probationary period, but with the use of the probationary period; that supervisors simply weren't using it, and that many of them didn't even know when the probationary period ends.

So why would we want to lengthen the probationary period?

I am not sure who that helps. Does it help the employee or does it help the agency?

In any case, depending, as I do, on an objective source, this section is unnecessary.

To cite another section, the termination of an employee in the SES is an absolutely bad way to deal with somebody who is not making it as a manager, but was good enough to be promoted to the SES. We have invested millions of dollars in an employee by the time that employee gets to be a top SES employee and gets promoted to manager. It won't be the first time that somebody has been an excellent employee, but when he got to managing whole divisions, he was not good.

Why get rid of that employee instead of demoting that employee, as is now done?

Finally, this bill is replete with due process problems. For example, it expedites the removal and appeals process and takes it away entirely in some instances. This bill reeks of constitutional infirmities. It should not be passed.

You will find Members on our side who want to sit down and improve the process and are ready to do so.

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Ms. NORTON. Mr. Chairman, I yield myself such time as I may consume.

My amendment would strike sections 402, 405(b), 406, 407, and 408. While some reforms to the Senior Executive Service may well be necessary, these sections go too far because they roll back significant due process rights for Federal employees and raise potential constitutional issues.

Section 402, which lengthens the probationary period for SES employees from 1 year to 2 years, is unnecessary. There is no evidence to indicate that such a provision will help agencies deal with poor performers in the workplace. In fact, a Federal 2015 GAO report found that agencies are already using probationary periods but could be using them more effectively. Of the 3,500 Federal employees who were dismissed in 2013, the majority were dismissed during the probationary period. Instead of extending this period, we should be looking at ways to improve its use by agencies and increasing congressional oversight to ensure that the Federal workforce is operating at its best.

Section 405(b) is similarly problematic. This section would allow an agency to remove an SES employee from civil service entirely for poor performance. Under current law, poor-performing employees, instead, are initially downgraded to a GS position, a level at which they could perform very well. Even if they were poor performers at the SES level, they would not have been promoted in the first place if they had not achieved good records, but may not be good managers. This section also shortens the notice period from 30 days to 15, making it extremely difficult for affected employees to exercise their due process rights.

Section 406 represents a serious constitutional issue by giving agencies the authority to place an SES employee on mandatory leave, forcing these employees to use their own accrued leave. This violates basic constitutional principles, as it is likely a taking of a vested property right or it is a suspension that triggers due process rights. This mandatory leave provision has little chance of withstanding constitutional scrutiny and should be struck.

Section 407 further represents an attack on Federal employees' due process rights. This provision expedites the removal and appeals process and adopts provisions of other Federal law that is currently being challenged in the Federal circuit.

In a Statement of Administration Policy in opposition to this bill, the White House has said that the President will veto it if it comes across his desk, at least in part because this section ``would raise significant constitutional concerns under the Appointments Clause and the Due Process Clause.'' It is unlikely that this section could withstand constitutional scrutiny and also should be struck now.

Section 408 requires reassignment of SES employees to different geographical locations, which is arbitrary, inflexible, and ignores the needs of individual agencies. This provision is unnecessary, given that the President signed an executive order in November 2015 that would strengthen the Senior Executive Service by requiring agency heads to develop a 2-year plan for increasing the mobility of SES employees.

We may need reform legislation to deal with poor performers, Mr. Chairman, but we cannot do so by rolling back due process rights and protections for Federal employees who, unlike private employees, are protected by the Constitution of the United States. I urge my colleagues to vote in favor of my amendment.

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Ms. NORTON. Mr. Chairman, I remind the gentleman that SES employees already have fewer rights than other employees because they are management and that we have invested millions of dollars in them. We have gotten them into the SES, a very competitive service, in the first place, so this off-with-your-head approach punishes the American people who may have perfectly fine employees at the SES level. But, for example, to indicate one of my amendments might downgrade them rather than getting rid of them, there are other provisions here that would doubtlessly not survive constitutional scrutiny.

Mr. Chairman, I urge the adoption of my amendment.

I yield back the balance of my time.

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