[Senate Report 110-517]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-517
_______________________________________________________________________
Calendar No. 1108
SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT
__________
R E P O R T
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2148
TO PROVIDE FOR GREATER DIVERSITY WITHIN, AND TO IMPROVE POLICY
DIRECTION AND OVERSIGHT OF, THE SENIOR EXECUTIVE SERVICE
October 1 (legislative day, September 17), 2008.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Kenya N. Wiley, Counsel
Thomas J.R. Richards, Professional Staff Member, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director of Governmental Affairs
Jennifer A. Hemingway, Minority Staff Director, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background.......................................................1
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................8
V. Estimated Cost of Legislation...................................10
VI. Evaluation of Regulatory Impact.................................12
VII. Changes in Existing Law.........................................12
Calendar No. 1108
110th Congress Report
SENATE
2d Session 110-517
======================================================================
SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT
_______
October 1 (legislative day, September 17), 2008.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2148]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2148) to provide
for greater diversity within, and to improve policy direction
and oversight of, the Senior Executive Service, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill (as amended) do pass.
I. Purpose and Summary
The purpose of S. 2148 is to promote diversity in the SES.
S. 2148, as amended, would create a new Senior Executive
Service Resource Office (SESRO) at the Office of Personnel
Management (OPM) to develop and monitor programs for the
advancement and training of senior executives, including the
Senior Executive Service Federal Candidate Development Program.
The bill also requires each agency to submit a plan to OPM on
how the agency is identifying and eliminating barriers to
minorities, women, and individuals with disabilities to obtain
appointments to the SES. The involvement of individuals with a
variety of experiences and perspectives in the consideration of
SES candidates helps ensure the selection of a strong and
diverse SES workforce. S. 2148 requires agencies, to the extent
practicable, to include minorities, women, and individuals with
disabilities on their Executive Resources Boards (ERB) as well
as any other panels that evaluate SES candidates.
II. Background
GENERAL BACKGROUND ON THE SENIOR EXECUTIVE SERVICE
The SES was established by Title IV of the Civil Service
Reform Act of 1978, P.L. 95-454, and encompasses managerial,
supervisory, and policy positions above the GS-15 level that
are not filled by presidential appointment. The SES includes
nearly 7,000 federal employees.\1\ Of those, approximately
6,000 are career appointed executives.\2\ SES career
appointments do not have time limitations, whereas non-career
SES employees are limited in their promotion potential and time
in service. Career SES employees are provided more job
protections and advancement potential than non-career SES
employees, such as adherence to merit system principles and
whistleblower rights. However, career-SES employees still do
not have rights such as collective bargaining that are afforded
other federal employees.\3\
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\1\U.S. Office of Personnel Management, Senior Executive Service
Survey Results, May 2008.
\2\Statement of Katherine Siggerud, Director of Physical
Infrastructure Issues, and George Stalcup, Director of Strategic
Issues, Government Accountability Office, Human Capital: Diversity in
the Federal SES and Senior Levels of the U.S. Postal Service and
Processes for Selecting New Executives (GAO-08-609T) (hereinafter ``GAO
Statement''), for the Joint Hearing on ``Managing Diversity of Senior
Leadership in the Federal Workforce and Postal Service'' Senate
Homeland Security and Governmental Affairs Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District of
Columbia and the House Oversight and Government Reform Subcommittee on
the Federal Workforce, the Postal Service, and the District of
Columbia: April 3, 2008 (hereinafter ``Joint Hearing'').
\3\5 U.S.C. Sec. 7103.
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Career appointees are selected for the SES on the basis of
leadership qualifications. Candidates are initially evaluated
by an internal agency Executive Resources Board (ERB) made up
of SES volunteers or selected by an agency head. The candidates
are ranked by the ERB and written recommendations are made to
the Office of Personnel Management (OPM). OPM is required to
establish Qualifications Review Boards (QRBs) to certify
candidate qualifications. The appointing authority in an agency
makes the final determination of which candidate will be hired.
Non-career appointees do not have to meet the same competitive
selection requirements as career SES candidates and do not
receive the same entitlements as career senior executives.
The Civil Service Reform Act of 1978 required that OPM have
primary oversight of the SES and help agencies establish
programs for systematic and continuing development of senior
executives.\4\ OPM had a centralized office that handled the
programs and policy development of the SES. However, in 2003,
OPM decentralized those office functions as part of a larger
internal management reorganization. Since then, senior
executives have not had a central office to provide needed
resources. According to the Senior Executives Association
(SEA):
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\4\Pub. L. No. 95-454 (Oct. 10, 1978).
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Until several years ago, a central office at the
Office of Personnel Management dealt with all issues
regarding SES policy and programs, allowing for
appropriate changes in policy to reflect the realities
of managing the SES workforce. It has become evident
that, with no focal point for the SES at OPM, policy
and implementation have been disconnected, and problems
have ensued. The most glaring example of this has been
the poor implementation of certification of SES
performance management systems at the agency level.
With inadequate support from OPM, congressional
oversight and investigation ultimately forced OPM to
take note and provide agencies with greater guidance on
the requirements for certification. By having an office
that is responsible for developing and implementing
policy with regard to the executive corps, as well as
conducting oversight, there will be greater
accountability and response to concerns from both
agencies and Congress.\5\
\5\Letter to Senator Daniel K. Akaka, Chairman, Senate Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia, and Representative Danny K. Davis, Chairman,
House Subcommittee on Federal Workforce, the Postal Service, and the
District of Columbia, from Carol Bonosaro, President, Senior Executives
Association: October 9, 2007.
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As the Executive Director of the Asian American Government
Executive Network (AAGEN) testified at the Joint Hearing, a
single office providing effective oversight of the SES is
essential to ensuring that OPM's and agencies' SES recruitment
efforts adequately address diversity.\6\ S. 2148 requires OPM
to re-establish the SESRO at OPM. The SESRO will serve as a
central resource for agencies and will provide oversight of
agency recruitment and candidate development efforts.
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\6\Statement of Carson Eoyang, Executive Director, Asian American
Government Executive Network for the Joint Hearing (hereinafter Eoyang
Statement).
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OPM believes that the requirement under S. 2148 to
establish a Senior Executive Service Resource Office (SESRO)
would undo significant aspects of their 2003 reorganizational
structure and have substantial cost implications.\7\ Based on
the concerns raised by senior executives, the Committee
recognizes the need for a central office at OPM to address
policy and program development for the SES.
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\7\Statement of Nancy Kichak, Associate Director, Office of
Personnel Management for the Joint Hearing (hereinafter Kichak
Statement).
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IMPROVING DIVERSITY IN THE SENIOR EXECUTIVE SERVICE
According to a 2003 Government Accountability Office (GAO)
report, ``Senior Executive Service: Enhanced Agency Efforts
Needed to Improve Diversity as the Senior Corps Turns Over,''
as the demographics of federal employees change, ``diversity
has evolved from public policy to a business need.''\8\
Diversity within the SES will help better ensure the executive
management of the federal government is responsive to the
needs, policies, and goals of the Nation. As GAO witnesses
testified at the Joint Hearing, having ``[a] diverse SES corps,
which generally represents the most experienced segment of the
federal workforce, can be an organizational strength that can
bring a wider variety of perspectives and approaches to bear on
policy development and implementation, strategic planning,
problem solving, and decision making.''\9\ At the same hearing,
the witness for AAGEN said, ``[t]he federal government should
have a diverse workforce not only to demonstrate that it
represents the American population, but also because diversity
enhances the effectiveness of government.'' That witness
specified law enforcement agencies as an example of how
diversity among senior executives can impact the public: ``our
various law enforcement agencies at all levels and across the
country must begin to mirror our nation's diversity if they are
to maintain domestic peace and equitably enforce our laws
within and across our social strata.''\10\
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\8\GAO, Senior Executive Service: Enhanced Agency Efforts Needed to
Improve Diversity as the Senior Corps Turns Over, GAO-03-34,
Washington, DC: January 2003.
\9\See GAO Statement at p. 2.
\10\See Eoyang Statement at p. 3.
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The percentage of minorities and women at senior pay levels
in the federal government, including the SES, is lower than in
the civilian workforce and the federal workforce as a whole.
According to the 2007 Federal Equal Opportunity Recruitment
Program report by OPM, minorities represent 32.8 percent of the
overall federal workforce and women represent 43.9 percent of
the overall federal workforce.\11\ GAO reports that in the SES,
minorities represent less than 16 percent of the senior
executive workforce and women represent 29 percent of the
senior executive workforce.\12\
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\11\Federal Equal Opportunity Recruitment Program Report for Fiscal
Year 2007, Linda Springer, Director, Office of Personnel Management,
http://www.opm.gov/About_OPM/Reports/FEORP/2007/feorp2007.pdf.
\12\See GAO Statement.
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There also are lower numbers of minorities and women in the
SES compared to the numbers of minorities and women employed in
the GS-14 and GS-15 levels, the feeder pools for the SES. GAO
reports that in 2007, minorities made up 22.5 percent of the
employees in the SES development pool (compared to the
previously cited 16 percent of career SES employees), and that
women made up 34 percent of the employees serving at the GS-14
and GS-15 levels (compared to the previously cited 29 percent
of the career SES in 2007).\13\
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\13\See id.
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In a GAO report from January 2003, OPM cited a number of
steps it had taken to diversify the SES, including fostering
the establishment and growth of agency development
programs.\14\ OPM's subsequent strategy, launched in 2003, for
increasing executive diversity included efforts to encourage
agencies to enhance diversity at entry and middle levels,
identify individuals with leadership ability early in their
careers, and provide experience and learning opportunities to
prepare them for senior level positions.\15\
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\14\Enhanced Agency Efforts Needed to Improve Diversity as the
Senior Corps Turns Over, Government Accountability Office, GAO-03-34,
January 17, 2003.
\15\Building and Maintaining a Diverse and High Qualified
Workforce, A Guide for Federal Agencies, Office of Personnel
Management, 2003, http://www.opm.gov/diversity/guide.htm.
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In 2003, OPM announced the Candidate Development Program
(CDP) to ``bring together a diverse cadre of potential
executives.''\16\ The CDP was designed to create pools of
qualified executives for SES positions and was intended to
include a variety of elements that prepare candidates for
career success. Elements of the program include rotational
assignments, formal training, mentoring, and performance
assessment. Graduates of the CDP are certified by the SES
Qualifications Review Board and may be selected for an SES
position anywhere in the federal government without further
competition. The program is open to individuals at the GS-14
and GS-15 grade levels, or the equivalent from outside the
federal government, with the duration of the candidate's
participation lasting 12 to 24 months.
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\16\News Release: OPM Launches the SES Candidate Development
Program, Office of Personnel Management, April 10, 2003, http://
www.opm.gov/pressrel/2003/EB-SESCDP.asp.
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Despite these efforts, there is room for improvement. In
2003, GAO evaluated data from 2000 on diversity in the SES.\17\
At the time, the report showed 67 percent of senior executives
were white males; 19 percent were white females; and about 14
percent were minority males and females.\18\ According to GAO's
testimony at the April 3, 2008, joint hearing, by the end of
fiscal year 2007, there were small improvements made in the
overall representation of women and minorities over the past
six years, but gains were inconsistent among the 25 federal
agencies analyzed and offset by losses of women and minorities
at nine agencies.\19\ More than 60 percent of SES employees
serving in 2000 had retired by 2007, and in the next ten years,
90 percent of senior executives serving today will be eligible
for retirement.\20\ The new hiring required as a result of
turnover in the SES workforce presents an opportunity for
improving diversity among SES employees.
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\17\Supra note 13.
\18\Id.
\19\See GAO Statement at p. 4.
\20\Congressional Budget Justification, Performance Budget, Fiscal
Year 2009, U.S. Office of Personnel Management, February 4, 2008.
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S. 2148, as amended, attempts to improve the diversity of
the SES by encouraging diversity in the ERB panels that review
applicants. This provision would allow the reviewing panels to
reflect the diversity of the candidate pool. The SESRO would be
required to develop a range of programs focused on recruitment
and mentoring for women, minorities, and individuals with
disabilities. Agencies would have to work with OPM and the
Chief Human Capital Officers Council to develop plans to
improve diversity in the SES. In addition, the SESRO would be
required to collect data on diversity in the SES and report
that information to Congress.
CONSTITUTIONAL CONCERNS
OPM and the Department of Justice (DOJ) have expressed
concerns over the constitutionality of the provisions in S.
2148, as introduced, and the provisions of the companion House
legislation, H.R. 3774. Specifically, they argued that
provisions in the two bills violated the equal protection
requirements under the Due Process Clause of the Fifth
Amendment and the Appointments Clause of the Constitution.\21\
In a letter to Congressman Henry Waxman, DOJ elaborated on the
concerns that several of the provisions in the legislation
violated the equal protection requirements pursuant to the Due
Process Clause of the Fifth Amendment.\22\ For example, DOJ
argued that requiring ``at least one woman and one minority''
sit on a three-person review panel would impose an
unconstitutional racial and gender quota. DOJ also argued that
provisions requiring targeted recruitment of minorities and
women, and requiring that hiring officials be notified of the
racial and gender demographics of the applicant pool, may be
held unconstitutional on equal protection grounds.\23\
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\21\See Kichak Statement at p. 3.
\22\Letter to Congressman Henry Waxman, Chairman, House Oversight
and Government Reform Committee, from the U.S. Department of Justice,
Office of Legislative Affairs, April 30, 2008.
\23\Id.
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During its consideration of S. 2148, the Committee adopted
a substitute amendment offered by Senator Akaka that included
provisions addressing the agencies' constitutional concerns.
For example, the amendment removed the requirement for a three-
person review panel to be made up of one woman and one ethnic
or racial minority. The substitute amendment requires that ``to
the extent practicable'' agencies create diversity in the
existing Executive Review Boards, which evaluate and select
candidates for the SES.
In a memo prepared for the Senate Subcommittee on Oversight
of Government Management, the Congressional Research Service
(CRS) provided a legal analysis of the amended version of S.
2148 as it pertains to the equal protection concerns raised by
OPM and DOJ, and concluded that the new provisions contained in
Senator Akaka's substitute amendment likely would survive a
constitutional challenge.\24\ CRS noted that ``the distinction
between `inclusive' forms of affirmative action--such as
recruitment, advertising in minority media, and other outreach
to minority communities--and `exclusive' affirmative action--
such as quotas, set-asides, or layoff preferences--has featured
prominently in many decisions.''\25\
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\24\Congressional Research Service (CRS) memorandum of legal
analysis on the Akaka Substitute Amendment to S. 2148 to Senate
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia, by Jody Feder, June 24, 2008
(hereinafter ``CRS Memo'') at p. 5.
\25\See CRS Memo at p. 3 (citing Allen v. Alabama State Bd. of
Educ., 164 F.3d 1347, 1352 (11th Cir. 1999) (racially conscious
outreach efforts to broaden applicant pool not subject to strict
scrutiny), vacated 216 F.3d 1263 (11th Cir. 2000); Duffy v. Wolle, 123
F.3d 1026, 1038-39 (8th Cir. 1997) (``An employer's affirmative efforts
to recruit female and minority applicants does not constitute
discrimination.''); Ensley Branch, NAACP, 31 F.3d 1548, 1571 (11th Cir.
1994) (describing efforts to actively encourage minorities to apply for
jobs, including waivers of application fees, as ``race-neutral'');
Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992)
(describing aggressive recruiting as ``race-neutral procedures'') rev'd
on other grounds, 989 F.2d 890 (7th Cir. 1993) (en banc)).
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OPM and DOJ had raised concerns that requiring the
collection of data and statistical information on diversity in
the SES violated equal protection requirements. OPM and DOJ
argued that under the original legislation a provision
requiring that demographic information be given to hiring
officials ``is likely to be construed as a means of impelling
the consideration of race in hiring decisions.''\26\ The
requirement to provide hiring officials with this statistical
data was removed in the amended bill, although the SESRO is
still required to collect the data. CRS noted that courts
generally have not found data collection activities concerning
the racial or gender makeup of a workforce to violate the
Constitution.\27\
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\26\Supra note 23.
\27\See CRS Memo at p. 3 (citing Sussman v. Tanoue, 39 F.Supp.2d
13, 24 (D.D.C. 1999) (quoting U.S. v. New Hampshire, 539 F.2d 277, 280
(1st Cir. 1976) (``Statistical information as such is a rather neutral
entity, which only becomes meaningful when it is interpreted'').
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In addition, DOJ raised concerns with the requirement for
the minority recruitment program proposed by the bill.\28\
However, there is already a requirement under section 7201 of
title 5, U.S.C., for OPM to conduct a minority recruitment
program. Furthermore, under section 2302(b) of title 5, hiring
officials may not take into consideration ``race, color,
religion, sex, or national origin'' when making employment
decisions. According to the U.S. Court of Appeals for the
Eleventh Circuit, ``where the government does not exclude
persons from benefits based on race, but chooses to undertake
outreach efforts to persons of one race, broadening the pool of
applicants, but disadvantaging no one, strict scrutiny is
generally inapplicable.''\29\ CRS noted in its legal analysis:
\28\Supra note 23.
\29\Allen v. Alabama State Bd. of Educ., 164 F.3d at 1352.
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The SES recruitment provision as currently drafted,
appears strikingly similar to the dozens, if not
hundreds, of existing federal statutory and regulatory
provisions that specifically refer to race, ethnicity,
gender, or disability as factors to be considered in
the administration of federal programs. Such measures
may include, but are not limited to, goals, timetables,
set-asides, priorities, outreach, recruitment, and
quotas, and few, if any, of these provisions appear to
have been subject to constitutional scrutiny.\30\
\30\See CRS Memo at p. 5 (citing CRS Report RL32565, Survey of
Federal Laws and Regulations Mandating Affirmative Action Goals, Set-
Asides, or Other Preferences Based on Race, Gender, or Ethnicity, by
Charles V. Dale and Cassandra Foley).
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DOJ also expressed concerns that the legislation violated
the Appointments Clause of the Constitution. DOJ argued that
the authority proposed for the SESRO in S. 2148 ``would entail
the kind of delegated sovereign authority, or significant
governmental authority, that can only be exercised by Officers
of the United States appointed in accordance with the
Appointments Clause, U.S. Constitution Article 2, section 2,
clause 2.''\31\ Senator Akaka's substitute amendment addressed
the Appointments Clause concern by explicitly giving the
Director of OPM the authority to appoint employees to staff the
SESRO.
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\31\Supra note 23.
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III. Legislative History
S. 2148, the Senior Executive Service Diversity Assurance
Act, was introduced by Senator Daniel K. Akaka on October 4,
2007. The bill was read twice and referred to the Committee on
Homeland Security and Governmental Affairs. S. 2148 was
referred to the Senate Homeland Security and Governmental
Affairs Subcommittee on Oversight of Government Management, the
Federal Workforce, and the District of Columbia on October 19,
2007. Representative Danny K. Davis introduced a companion
bill, H.R. 3774, on October 9, 2007.
On April 3, 2008, the Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District
of Columbia held a joint hearing with the House Subcommittee on
Federal Workforce, the Postal Service, and the District of
Columbia on the Senior Executive Service Diversity Assurance
Act. Testimony was received from: Nancy Kichak, Associate
Director, OPM; George Stalcup, Director, Strategic Issues, GAO;
Katherine Siggerud, Director, Physical Infrastructure Issues,
GAO; William Bransford, General Counsel, Senior Executives
Association; William Brown, President, African American Federal
Executives Association; Rhonda Trent, President, Federally
Employed Women; Carson Eoyang, Executive Director, Asian
American Government Executives Network; Jose Osegueda,
President, National Association of Hispanic Federal Executives;
and Darlene Young, President, Blacks in Government.
The Committee considered S. 2148 on June 25, 2008. By voice
vote the Committee ordered the bill favorably reported, as
amended by Senator Akaka's amendment in the nature of a
substitute, with Senator Coburn recorded as ``no.'' Members
present were Lieberman, Akaka, Carper, Pryor, McCaskill,
Collins, Coleman, Coburn, and Sununu. The substitute amendment
offered by Senator Akaka added a findings section to the bill
to demonstrate the need for improving diversity in the SES. It
also assigned specific duties to the SESRO that included
tracking statistical data on diversity in the SES, establishing
a diversity recruitment program, and helping agencies improve
diversity in their SES. The substitute amendment deleted the
language from the original bill establishing a diversity panel,
and instead required agencies to make the ERBs diverse to the
extent practical. Finally, language was added requiring
agencies to develop plans to improve diversity, coordinate the
development of those plans with OPM and the Chief Human Capital
Officers Council, and report the progress to Congress on the
extent to which the agency has demonstrated a commitment to
diversity.
IV. Section-by-Section Analysis
Section 1. Short title
This section provides that the short title of the bill is
the ``Senior Executive Service Diversity Assurance Act.''
Section 2. Findings
This section provides findings, including statistics from
GAO and OPM that demonstrate the need for this legislation. The
statistics reveal the under-representation of women and
minorities in the SES.
Section 3. Definitions
This section includes the following definitions:
The term ``Director'' means the Director of OPM.
The term ``Senior Executive Service'' means Senior
Executive Service positions, which include any position in an
agency which is classified above GS-15 or in level IV or V of
the Executive Schedule, or an equivalent position which fits
certain criteria and does not require a Senate confirmed
presidential appointment.
The term ``agency'' has the meaning provided in 5
U.S.C. 3132 which is an executive agency, except a government
corporation and GAO, and excluding some agencies identified in
section 3132 such as the Federal Bureau of Investigation, the
Drug Enforcement Agency, and the Central Intelligence Agency.
The term ``career appointee'' means an individual
in an SES position whose appointment to the position or
previous appointment to another SES position was based on
approval by OPM of the individual's executive qualifications.
The term ``career reserved position'' means a
position which is required to be filled by a career appointee
and which is designated as a career reserved position by the
head of the agency.
The term ``SES Resource Office'' refers to the
Senior Executive Service Resource Office established by section
four of the bill.
Section 4. Senior Executive Service Resource Office
This section re-establishes the Senior Executive Service
Resource Office (SESRO) within OPM. Subsection (a) requires the
Director of OPM to establish the SESRO within six months of
enactment. This subsection provides that the mission of the new
office is to improve the efficiency, effectiveness, and
productivity of the SES; to advance the professionalism of the
SES; and to ensure that in seeking to achieve an SES that is
reflective of the nation's diversity, recruitment is from
qualified individuals.
Subsection (b) describes the functions of the SESRO,
including recommending regulations to the Director of OPM and
providing guidance to agencies on the structure, management,
and diverse composition of the SES. This subsection provides a
number of ways that the SESRO must carry out its
responsibilities, including: creating policies for the
management and improvement of the SES; providing oversight of
the performance, structure, and composition of the SES;
managing the SES pay system; developing standards for
certification of each agency's SES performance management
system; and developing programs for the advancement and
training of senior executives. OPM is currently required by 5
U.S.C. Sec. 3393(c) to establish qualifications review boards
(QRBs) to certify the qualifications of SES candidates. Under
subsection (b), the SESRO will be responsible for administering
QRBs.
Subsection (b) also requires the SESRO to compile and
maintain annual statistics related to the composition of the
SES and requires OPM to make those statistics publicly
available on its website. The SESRO must collect information
such as the number of career reserve positions at each agency;
the number of vacant career reserve positions at each agency;
the time it takes to fill a position; how long the position is
vacant; the number of individuals who have been certified as
having the qualifications necessary to be appointed to the SES
and the make-up of that group with regard to race, ethnicity,
sex, age, and individuals with disabilities; and the make-up of
the SES with regard to race, ethnicity, sex, age, and
individuals with disabilities. The SESRO must also collect data
on the makeup of executive resources boards (ERBs) with regard
to race, ethnicity, sex, and individuals with disabilities. OPM
does not currently collect data on the composition of these
boards.
Subsection (b) also requires the SESRO to establish
mentoring programs for potential SES candidates, conduct a
continuing program to recruit women, minorities, and
individuals with disabilities for SES positions, advise
agencies on how an agency's equal employment or diversity
office could be helpful in the SES appointments process, and
evaluate and implement strategies to ensure that agencies
conduct outreach to identify SES candidates in other agencies.
Subsection (c) provides that, in making the annual
statistics publicly available, the SESRO may combine data for
smaller agencies to protect individually identifiable
information.
Subsection (d) requires the head of each agency to provide
OPM with the information needed for the SESRO to compile its
annual statistics.
Subsection (e) provides that the Director of the OPM shall
appoint employees to staff the SESRO.
Section 5. Career appointments
Subsection (a) requires the head of an agency, to the
extent practicable, to ensure diversity of the agency's ERBs by
including minorities, women, and individuals with disabilities
on these boards.
Subsection (b) requires OPM to issue regulations to
implement subsection (a) within one year of enactment.
Subsection (c) requires OPM to report to the House
Committee on Oversight and Government Reform and the Senate
Committee on Homeland Security and Governmental Affairs within
one year of enactment with an evaluation of agency efforts to
improve the diversity of ERBs based on the annual statistics
maintained by the SESRO.
Section 6. Encouraging a more diverse senior executive service
Subsection (a) requires each agency, in consultation with
OPM and the Chief Human Officers Council, to submit to OPM a
plan to improve opportunities for the advancement and
appointment of minorities, women, and individuals with
disabilities to the SES. Each agency plan must address how the
agency will identify and eliminate barriers that impair the
ability of minorities, women, and individuals with disabilities
to obtain SES appointments and any actions the agency is taking
to provide opportunities for advancement. Such plans will be
included in agencies' overall human capital plan. Subsection
(a) provides examples of ways agencies can help employees
advance, including conducting outreach, providing training
programs to foster leadership development, identifying
opportunities for employees to enhance their careers, assessing
internal availability of candidates for SES positions, and
taking inventory of employee skills and addressing any gaps in
skills identified.
Under subsection (a), agency plans are required to be
updated at least every two years during the ten years following
enactment of this Act. OPM is required to evaluate whether each
agency plan sufficiently demonstrates the agency's commitment
to providing opportunities for SES appointments of minorities,
women, and individuals with disabilities and determine whether
to approve the plan.
Subsection (b) requires OPM, within six months after the
deadline for agencies to submit a report or update, to submit a
summary and evaluation of agency plans to the House Committee
on Oversight and Government Reform and the Senate Committee on
Homeland Security and Governmental Affairs.
Subsection (c) requires OPM to evaluate existing reporting
requirements such as section 717 of the Civil Rights Act of
1964 and determine how agency reporting can be done in a way
that is consistent with similar reporting requirements but does
not duplicate those requirements.
V. Estimated Cost of Legislation
June 27, 2008.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2148, the Senior
Executive Service Diversity Assurance Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 2148--Senior Executive Service Diversity Assurance Act
Summary: S. 2148 would establish a Senior Executive Service
Resource Office within the Office of Personnel Management (OPM)
to oversee executive agencies' efforts to improve the
management of the Senior Executive Service (SES). The bill also
would require agencies to prepare plans to increase diversity
within the SES.
CBO estimates that implementing S. 2148 would cost $2
million in 2009 and $22 million over the 2009-2013 period,
assuming appropriation of the necessary amounts. Enacting the
legislation would not affect direct spending or revenues. S.
2148 contains no intergovernmental or private-sector mandates
as defined in Unfunded Mandates Reform Act (UMRA) and would not
affect the budgets of state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2148 is shown in the following table.
The costs of this legislation fall primarily within budget
function 800 (general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 2 5 5 5 5 22
Estimated Outlays............................................ 2 5 5 5 5 22
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2009 and
that spending would follow historical patterns for similar
programs.
The SES was created in 1979 to provide a systematic program
to recruit, retain, develop, and manage senior executives in
the federal government. Its members generally represent the
most experienced segment of the federal workforce and operate
and oversee approximately 75 federal agencies. OPM manages the
overall program and assists agencies as they select, develop,
and manage federal executives. According to the Government
Accountability Office (GAO), there are currently about 6,500
SES employees.
According to OPM, GAO, and selected agencies with SES
employees, most of the provisions of S. 2148 would expand the
current SES-related duties of OPM and affected agencies. The
legislation would establish a new office within OPM to provide
additional oversight of executive agencies' efforts to recruit
and develop candidates for SES positions. In addition, the
legislation would require individual agencies to develop and
implement plans to enhance the diversity of their SES employees
and to report on those efforts.
Based on information from OPM and other affected agencies,
CBO estimates that implementing S. 2148 would cost $2 million
in 2009 and $22 million over the 2009-2013 period, assuming
appropriation of the necessary amounts. Those costs would cover
additional staff and expenses related to the new office in OPM,
which CBO expects would be fully operational in 2010. Our
estimate also includes increased costs for other agencies to
comply with new reporting requirements.
Intergovernmental and private-sector impact: S. 2148
contains no intergovernmental or private-sector impact as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Previous CBO estimate: On May 22, 2008, CBO provided a cost
estimate for H.R. 3774, the Senior Executive Service Diversity
Assurance Act, as ordered reported by the House Committee on
Oversight and Government Reform on May 1, 2008. The two pieces
of legislation are similar, and the CBO cost estimates are
identical.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Elizabeth Cove,
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. CBO states that
there are no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and no costs on
State, local, or tribal governments. The legislation contains
no other regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, 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 and existing law, in which no
change is proposed, is shown in roman):
TITLE 5
PART III--EMPLOYEES
* * * * * * *
Subpart B--Employment and Retention
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
Subchapter VIII--Appointment, Reassignment, Transfer, and Development
in the Senior Executive Service
* * * * * * *
Sec. 3393. Career appointments
(a) * * *
(b) Each agency shall establish one or more executive
resources boards, as appropriate, the members of which shall be
appointed by the head of the agency from among employees of the
agency or commissioned officers of the uniformed services
serving on active duty in such agency. In establishing an
executive resources board, the head of the agency shall, to the
extent practicable, ensure diversity of the board and of any
subgroup thereof or other evaluation panel related to the merit
staffing process for career appointees, by including members of
racial and ethnic minority groups, women, and individuals with
disabilities. The boards shall, in accordance with merit
staffing requirements established by the Office, conduct the
merit staffing process for career appointees, including--
(1) all groups of qualified individuals within the
civil service; or
(2) all groups of qualified individuals whether or not
within the civil service.
* * * * * * *