[House Report 110-672]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-672
======================================================================
SENIOR EXECUTIVE SERVICE DIVERSITY ASSURANCE ACT
_______
May 22, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3774]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 3774) to provide for greater diversity
within, and to improve policy direction and oversight of, the
Senior Executive Service, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Purpose and Summary.............................................. 6
Background and Need for Legislation.............................. 6
Legislative History.............................................. 8
Section-By-Section............................................... 8
Explanation of Amendments........................................ 11
Committee Consideration.......................................... 11
Roll Call Votes.................................................. 12
Application of Law to the Legislative Branch..................... 12
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 12
Statement of General Performance Goals and Objectives............ 12
Constitutional Authority Statement............................... 12
Federal Advisory Committee Act................................... 12
Unfunded Mandates Statement...................................... 12
Earmark Identification........................................... 12
Committee Estimate............................................... 13
Budget Authority and Congressional Budget Office Cost Estimate... 13
Changes in Existing Law Made by the Bill, as Reported............ 14
Additional Views................................................. 16
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Senior Executive Service
Diversity Assurance Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) according to the Government Accountability
Office--
(A) minorities made up 22.5 percent of the
individuals serving at the GS-15 and GS-14
levels and 15.8 percent of the Senior Executive
Service in 2007;
(B) women made up 34.3 percent of the
individuals serving at the GS-15 and GS-14
levels and 29.1 percent of the Senior Executive
Service in 2007; and
(C) although the number of career Senior
Executive Service members increased from 6,110
in 2,000 to 6,555 in 2007, the representation
of African American men in the career Senior
Executive Service declined during that same
period from 5.5 percent to 5.0 percent; and
(2) according to the Office of Personnel Management--
(A) black employees represented 6.1 percent
of employees at the Senior Pay levels and 17.8
percent of the permanent Federal workforce
compared to 10.1 percent in the civilian labor
force in 2007;
(B) Hispanic employees represented 4.0
percent of employees at the Senior Pay levels
and 7.8 percent of the permanent Federal
workforce compared to 13.3 percent of the
civilian labor force in 2007; and
(C) women represented 28.2 percent of
employees at the Senior Pay levels and 43.9
percent of the permanent Federal workforce
compared to 45.7 percent of the civilian labor
force in 2007.
SEC. 3. DEFINITIONS.
For purposes of this Act--
(1) the term ``Director'' means the Director of the
Office of Personnel Management;
(2) the term ``Senior Executive Service'' has the
meaning given such term by section 2101a of title 5,
United States Code;
(3) the terms ``agency'', ``career appointee'', and
``career reserved position'' have the meanings given
them by section 3132 of title 5, United States Code;
and
(4) the term ``SES Resource Office'' means the Senior
Executive Service Resource Office, established under
section 4.
SEC. 4. SENIOR EXECUTIVE SERVICE RESOURCE OFFICE.
(a) Establishment.--Not later than 180 days after the date of
the enactment of this Act, the Director shall establish within
the Office of Personnel Management an office to be known as the
Senior Executive Service Resource Office. The mission of the
SES Resource Office shall be--
(1) to improve the efficiency, effectiveness, and
productivity of the Senior Executive Service through
policy formulation and oversight;
(2) to advance the professionalism of the Senior
Executive Service; and
(3) to ensure that, in seeking to achieve a Senior
Executive Service reflective of the Nation's diversity,
recruitment is from qualified individuals from
appropriate sources.
(b) Functions.--It shall be the function of the SES Resource
Office to make recommendations to the Director with respect to
regulations, and to provide guidance to agencies, concerning
the structure, management, and diverse composition of the
Senior Executive Service. In order to carry out the purposes of
this section, the SES Resource Office shall--
(1) take such actions as the SES Resource Office
considers necessary to manage and promote an efficient,
elite, and diverse corps of senior executives by--
(A) creating policies for the management and
improvement of the Senior Executive Service;
(B) providing oversight of the performance,
structure, and composition of the Senior
Executive Service; and
(C) providing guidance and oversight to
agencies in the management of senior executives
and candidates for the Senior Executive
Service;
(2) be responsible for the policy development,
management, and oversight of the Senior Executive
Service pay system;
(3) develop standards for certification of each
agency's Senior Executive Service performance
management system and evaluate all agency applications
for certification;
(4) be responsible for developing and monitoring
programs for the advancement and training of senior
executives, including the Senior Executive Service
Federal Candidate Development Program;
(5) provide oversight of, and guidance to, agency
executive resources boards;
(6) be responsible for the administration of the
qualifications review board;
(7) establish and maintain annual statistics (in a
form that renders them useful to appointing authorities
and candidates) on--
(A) the total number of career reserved
positions at each agency;
(B) the total number of vacant career
reserved positions at each agency;
(C) of the positions under subparagraph (B),
the number for which candidates are being
sought;
(D) the number of individuals who have been
certified in accordance with section 3393(c) of
title 5, United States Code, and the
composition of that group of individuals with
regard to race, ethnicity, sex, age, and
individuals with disabilities;
(E) the composition of the Senior Executive
Service with regard to race, ethnicity, sex,
age, and individuals with disabilities;
(F) the composition of executive resources
boards with regard to race, ethnicity, sex, and
individuals with disabilities; and
(G) the composition of qualifications review
boards with regard to race, ethnicity, sex, and
individuals with disabilities;
(8) make available to the public through the official
public internet site of the Office of Personnel
Management, the data collected under paragraph (7);
(9) establish mentoring programs for potential
candidates for the Senior Executive Service, including
candidates who have been certified as having the
executive qualifications necessary for initial
appointment as a career appointee under a program
established pursuant to section 3396(a) of title 5,
United States Code;
(10) conduct a continuing program for the recruitment
of women, members of racial and ethnic minority groups,
and individuals with disabilities for Senior Executive
Service positions, with special efforts directed at
recruiting from educational institutions, professional
associations, and other sources;
(11) advise agencies on the best practices for an
agency in utilizing or consulting with an agency's
equal employment or diversity office or official (if
the agency has such an office or official) with regard
to the agency's Senior Executive Service appointments
process; and
(12) evaluate and implement strategies to ensure that
agencies conduct appropriate outreach to other agencies
to identify candidates for Senior Executive Service
positions.
(c) Protection of Individually Identifiable Information.--For
purposes of subsection (b)(8), the SES Resource Office may
combine data for any agency that is not named in section 901(b)
of chapter 31, United States Code, to protect individually
identifiable information.
(d) Cooperation of Agencies.--The head of each agency shall
provide the Office of Personnel Management with such
information as the SES Resource Office may require in order to
carry out subsection (b)(7).
SEC. 5. CAREER APPOINTMENTS.
(a) Promoting Diversity in the Career Appointments Process.--
Section 3393 of title 5, United States Code, is amended--
(1) in subsection (b), by inserting after the first
sentence the following: ``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.''; and
(2) in subsection (c)(1), by adding after the last
sentence the following: ``Consideration should also be
given to improving diversity by including members of
racial and ethnic minority groups, women, and
individuals with disabilities on qualifications review
boards.''.
(b) Regulations.--Within 1 year after the date of the
enactment of this Act, the Director shall promulgate
regulations to implement subsection (a) and to improve
diversity in executive resources boards and qualifications
review boards.
(c) Report.--Within 1 year after the date of the enactment of
this Act, the Director shall submit to the Committee on
Oversight and Government Reform of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs
of the Senate a report evaluating agency efforts to improve
diversity in executive resources boards and of the members
designated by agencies to serve on qualifications review
boards, based on the information collected by the SES Resource
Office under subparagraphs (F) and (G) of section 4(b)(7).
SEC. 6. ENCOURAGING A MORE DIVERSE SENIOR EXECUTIVE SERVICE.
(a) Senior Executive Service Diversity Plans.--Within 1 year
after the date of the enactment of this Act, each agency, in
consultation with the Office of Personnel Management, shall
submit to the Office of Personnel Management a plan to enhance
and maximize opportunities for the advancement and appointment
of minorities, women, and individuals with disabilities in the
agency to the Senior Executive Service. Agency plans shall
address how the agency is identifying and eliminating barriers
that impair the ability of minorities, women, and individuals
with disabilities to obtain appointments to the Senior
Executive Service and any actions the agency is taking to
provide advancement opportunities, including--
(1) conducting outreach to minorities, women, and
individuals within the agency and outside the agency;
(2) establishing and maintaining training and
education programs to foster leadership development;
(3) identifying career enhancing opportunities for
agency employees;
(4) assessing internal availability of candidates for
Senior Executive Service positions; and
(5) conducting an inventory of employee skills and
addressing current and potential gaps in skills and the
distribution of skills.
Agency plans shall be updated at least every 2 years during the
10 years following enactment of this Act. An agency plan shall
be reviewed by the Office of Personnel Management and, if
determined to provide sufficient assurances, procedures, and
commitments to provide adequate opportunities for the
advancement and appointment of minorities, women, and
individuals with disabilities to the Senior Executive Service,
shall be approved by such Office. An agency may, in updating
its plan, submit to the Office of Personnel Management an
assessment of the impacts of the plan.
(b) Summary and Evaluation.--Within 180 days after the
deadline for the submission of any report or update under
subsection (a), the Director shall transmit to the Committee on
Oversight and Government Reform of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs
of the Senate a report summarizing and evaluating the agency
plans or updates (as the case may be) so submitted.
(c) Coordination.--The Office of Personnel Management shall,
in carrying out subsection (a), evaluate existing requirements
under section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16) and section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791) and determine how agency reporting can be performed
so as to be consistent with, but not duplicative of, such
sections and any other similar requirements.
Purpose and Summary
H.R. 3774, the Senior Executive Service Diversity Assurance
Act, was introduced by Rep. Danny K. Davis on October 9, 2007.
The purpose of H.R. 3774 is to promote diversity in the Senior
Executive Service (SES).
H.R. 3774 requires the Office of Personnel Management (OPM)
to establish an office to oversee the SES, requires agencies
and OPM to consider diversity when designating members of SES
candidate evaluation panels, and requires each agency to submit
a plan to OPM on how the agency will enhance and maximize
opportunities for the advancement and appointment of
minorities, women, and individuals with disabilities to the
SES. OPM must review the agency plans and report to Congress
with a summary and an evaluation of the agency plans.
Background and Need for Legislation
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 with Senate
confirmation. 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 and provide certain job protections and
benefits.
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\1\U.S. Office of Personnel Management, Senior Executive Service
Survey Results (May 2008).
\2\House Committee on Oversight and Government Reform, Subcommittee
on Federal Workforce, Postal Service, and the District of Columbia,
Testimony of Katherine Siggerud and George H. Stalcup, Managing
Diversity of Senior Leadership in the Federal Workforce and Postal
Service, 110th Cong. (Apr. 3, 2008) (GAO-08-609T).
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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 senior executives. The candidates are ranked by the ERB and
written recommendations are made to 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.
Noncareer 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 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.
The senior leadership of the federal government should serve as
a model and should be as strong and effective as possible.
Improving the diversity of the SES is an essential part of
achieving that goal. As the Government Accountability Office
(GAO) testified at an April 3, 2008, hearing of the
Subcommittee on Federal Workforce, Postal Service and the
District of Columbia, ``[h]aving 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.''\3\
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\3\Id.
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Effective oversight of the SES is essential to ensuring
that SES recruitment efforts adequately address diversity. H.R.
3774 requires OPM to re-establish the Senior Executive Service
Resource Office (SESRO) at OPM. The SESRO will serve as a
central resource for agencies and will provide oversight of
agency recruitment and candidate development efforts. OPM
previously had such an office but dissolved the office when the
agency was reorganized in 2003. Concerns have been raised that
OPM's management of the SES is less effective without a central
office to handle SES-related policy development and
implementation. According to the Senior Executives Association:
We are especially delighted that the bills require
effective oversight of the Senior Executive Service by
the Office of Personnel Management. In the past OPM has
had such an office and it worked effectively to monitor
and manage the SES, government-wide. Currently,
different offices within OPM share the responsibility
for managing the SES with policy in one office and
implementation of that policy in another office. In our
opinion, the effect has been a diminishment in the
effectiveness of the management of the government-wide
SES corps. With respect to diversity, this means that
agencies use different systems and standards for
recruiting into the SES with varying outcomes on
diversity resulting in different agencies. With one
office to manage the SES greater diversity is more
likely to become a reality sooner than later.\4\
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\4\House Committee on Oversight and Government Reform, Subcommittee
on Federal Workforce, Postal Service, and the District of Columbia,
Testimony of William Bransford, Managing Diversity of Senior Leadership
in the Federal Workforce and Postal Service, 110th Cong. (Apr. 3,
2008).
One problem that has been identified is that there are
lower numbers of minorities and women in the SES compared to
the numbers of minorities and women employed in the GS-15 and
GS-14 levels, the feeder pools for the SES. GAO reports that,
in 2007, minorities made up 22.5% of the employees in the SES
development pool but only made up 16% of career employees in
the SES. GAO reports that women made up 34% of the employees
serving at the GS-15 and GS-14 levels but only 29% of the
career SES in 2007.
H.R. 3774 requires the new SESRO 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.
Involving 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.
H.R. 3774 requires agencies, to the extent possible, to include
minorities, women, and individuals with disabilities on their
ERBs as well as any other panels that evaluate SES candidates
and provides that agencies should consider diversity in
selecting members to serve on OPM's QRBs.
Legislative History
H.R. 3774, the Senior Executive Service Diversity Assurance
Act, was introduced by Rep. Danny K. Davis on October 9, 2007,
and referred to the Committee on Oversight and Government
Reform. Senator Daniel K. Akaka introduced a companion bill, S.
2148, on October 4, 2007.
On April 3, 2008, the Subcommittee on Federal Workforce,
Postal Service and the District of Columbia held a hearing on
the Senior Executive Service Diversity Assurance Act. The
witnesses were 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.
On April 15, 2008, the Subcommittee held a business meeting
to consider H.R. 3774 and forwarded the bill to the full
Committee by a voice vote.
The full Committee held a business meeting to consider H.R.
3774 on May 1, 2008, and ordered the bill to be favorably
reported, as amended, by a voice vote.
Section-by-Section
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.
According to GAO, minorities made up 22.5% of the individuals
serving at the GS-15 and GS-14 levels and 15.8% of the career
SES in 2007; women made up 34.3% of the individuals at the GS-
15 and GS-14 levels and 29.1% of the career SES in 2007; and
despite an increase in the number of SES members from 6,110 in
2000 to 6,555 in 2007, the representation of African-American
men in the career SES declined from 5.5% to 5%. According to
OPM, in 2007: black employees represented 6.1% of employees at
senior pay levels and 17.8% of the federal workforce compared
to 10.1% in the civilian workforce; Hispanic employees
represented 4% of employees at the senior pay levels and 7.8%
of the permanent federal workforce compared to 13.3% of the
civilian labor force; and women represented 28.2% of employees
at the senior pay levels and 43.9% of the permanent federal
workforce compared to 45.7% of the civilian labor force.
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.
Sec. 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 reestablishes 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 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
forcertification 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.
This subsection 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 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 make-up
of executive resources boards (ERBs) and QRBs 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.
Section 5. Career Appointments
Subsection (a) requires the head of an agency, where
possible, to ensure diversity of the agency's ERBs by including
minorities, women, and individuals with disabilities on these
boards. This subsection provides that consideration should also
be given, in appointing members to a QRB, to improving
diversity by including minorities, women, and individuals with
disabilities. OPM is responsible for establishing QRBs but OPM
relies on agencies to designate agency employees to serve on
QRBs. This subsection is intended to encourage OPM and agencies
to consider diversity when identifying potential panel members
who have professional knowledge of public management and
knowledge of the appropriate occupational fields of the
appointee.
Subsection (b) requires OPM to issue regulations to
implement subsection (a).
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 and QRBs 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, 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.
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. 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. The intent of this section is
for agencies and OPM to carefully evaluate how diversity in the
SES can be improved through new actions aimed at eliminating
barriers to advancement. The intent is not for the reports
required by this section to become rote exercises that
duplicate existing agency reports.
Explanation of Amendments
At the full Committee business meeting on May 1, 2008, Rep.
Waxman offered an amendment in the nature of a substitute,
which passed by voice vote. The Waxman amendment maintains the
requirement in the bill as introduced that OPM reestablish the
SESRO, but adds new requirements for the office. The new
requirements include collecting diversity data on the makeup of
ERBs and QRBs. The bill as introduced requires each agency to
establish a three-person SES evaluation panel within each
agency that must include at least one woman and one member of a
racial or ethnic group. The Waxman amendment replaces this
section with several provisions aimed at promoting diversity in
the SES. The amendment requires agencies, to the extent
practicable, to include minorities, women, and individuals with
disabilities in ERBs and any subgroups of those panels and to
consider diversity in designating members for QRBs. The
amendment requires OPM to issue regulations and report to
Congress on agency efforts to improve diversity of ERBs and
QRBs. Under the Waxman amendment, agencies must submit plans to
OPM on efforts to improve opportunities for advancement to the
SES for minorities, women, and individuals with disabilities.
The amendment requires OPM to summarize andevaluate agency
plans and report to the House Committee on Oversight and Government
Reform and the Senate Committee on Homeland Security and Governmental
Affairs.
Committee Consideration
On Thursday, May 1, 2008, the Committee met in open session
and ordered H.R. 3774, as amended, to be reported to the House
by a voice vote.
Roll Call Votes
No roll call votes were held.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations.
H.R. 3774 creates an office in OPM and requires executive
branch agencies to take actions aimed at improving diversity in
the Senior Executive Service and therefore does not apply to
the legislative branch.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of Rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report, including the need for a more diverse Senior
Executive Service.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report, including encouraging the appointment and
advancement of minorities, women, and individuals with
disabilities to the Senior Executive Service.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 3774. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement on
whether the provisions of the report include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.
Earmark Identification
H.R. 3774 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 3774. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 3774 from the Director of
the Congressional Budget Office:
May 22, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3774, 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.
H.R. 3774--Senior Executive Service Diversity Assurance Act
Summary: H.R. 3774 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 H.R. 3774 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. H.R.
3774 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 H.R. 3774 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-
2009 2010 2011 2012 2013 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. They 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 H.R. 3774 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 H.R. 3774 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: H.R. 3774
contains no intergovernmental or private-sector impact as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Elizabeth Cove;
and Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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 (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
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) * * *
* * * * * * *
(c)(1) The Office shall establish one or more qualifications
review boards, as appropriate. It is the function of the boards
to certify the executive qualifications of candidates for
initial appointment as career appointees in accordance with
regulations prescribed by the Office. Of the members of each
board more than one-half shall be appointed from among career
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the
professional knowledge of public management and knowledge of
the appropriate occupational fields of the intended appointee.
Consideration should also be given to improving diversity by
including members of racial and ethnic minority groups, women,
and individuals with disabilities on qualifications review
boards.
* * * * * * *
ADDITIONAL VIEWS OF RANKING MEMBER TOM DAVIS
The purpose of this legislation is to promote diversity
within the ranks of the Senior Executive Service (SES). This
proposal would establish within the Office of Personnel
Management a Senior Executive Service Resource Office to
identify ways to improve the professionalism and diversity of
the SES. It would also require each agency to ensure, to the
extent practicable, the diversity of any new Executive Resource
Board or any subgroup of an Executive Resource Board. In
addition, this legislation would require each agency to create
a plan to enhance and maximize opportunities for the
advancement and appointment of minorities, women, and
individuals with disabilities in the agency to the Senior
Executive Service.
Promoting diversity within the Senior Executive Service is
a laudable goal and it is clear that agencies--working hand in
hand with the Office of Personnel Management--are taking steps
to improve diversity in the SES. However, although the GAO
recently found that percentages of women and minorities in the
SES have increased since 2000, the overall number of women and
minorities in the SES remains low.
The reforms listed above will likely have some effect on
improving diverse hiring practices within the SES. But creating
a large, talented, purposefully trained pool of applicants
would have a much greater and more positive effect on diversity
within the SES. This bill does very little to actually ensure
that candidates from every sector of American society are
appropriately trained with the high level leadership and
executive skills the SES was designed to harness.
Furthermore, the reforms in H.R. 3774 only address one area
of weakness in the SES system The Senior Executive Service was
created to be an elite cadre of federal employees and managers
specially equipped with skills and experience in the areas of
leadership, management, vision, and creativity. SES employees
must demonstrate a unique understanding of the challenges
agencies face and be equipped to respond with excellent
executive leadership.
Congress should be trying to create an environment within
SES which fosters excellence. Congress should look at the pay
compression issues facing the Senior Executive Service, expand
SES employees' access to training, and take steps to make the
SES a more coveted career path for young federal employees.
Congress must identify other ways to improve the SES while
promote diversity at the same time.
Tom Davis.