,,ii #aahth ,,congress #ast ,session ,s4 #baeh ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,june #bb1 #bjbc,mr4 ,moran 7for himself1 ,mr4 ,manchin1 and ,mr4 ,rubio7 introduced the following bill2 which was read twice and referred to the ,committee on ,veterans' ,affairs ,a ,,bill ,to amend title #ch1 ,united ,states ,code1 to provide for disciplinary procedures for supervisors and managers at the ,department of ,veterans ,affairs and to modify the procedures of personnel actions against employees of the ,department1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,restore ,department of ,veterans ,affairs ,accountability ,act of #bjbc or the ,restore ,,va ,accountability ,act of #bjbc4 #b4 ,supervisors3 removal1 demotion1 or suspension based on performance or misconduct 7a7 ,discipline of supervisors 7#a7 ,in general ,title #ch1 ,united ,states ,code1 is amended by inserting after section #gaa the following3 #gab4 ,supervisors3 removal1 demotion1 or suspension based on performance or misconduct 7a7 ,in general ,the ,secretary may remove from civil service1 demote1 or suspend a covered individual who is an employee of the ,department if the ,secretary determines by substantial evidence that the performance or misconduct of the covered individual warrants such action4 7b7 ,rights and procedures 7#a7 7,a7 ,when making an initial decision under subsection 7a7 with respect to determining whether a covered individual should be removed1 demoted1 or suspended1 the deciding employee of the ,department shall exclusively apply the following factors3 7i7 ,the nature and seriousness of the offense1 and its relation to the covered individual's duties1 position1 and responsibilities1 including whether the offense was intentional or technical or inadvertent1 or was committed maliciously or for gain1 or was frequently repeated4 7ii7 ,the covered individual's job level and type of employment1 including supervisory or fiduciary role1 and prominence of the position4 7,b7 ,the ,secretary shall review the initial decision and uphold such decision if it is supported by substantial evidence4 7#b7 ,a covered individual subject to an action under subsection 7a7 is entitled to-- 7,a7 advance notice of the action and a file containing all evidence in support of the proposed action2 7,b7 be represented by an attorney or other representative of the covered individual's choice2 and 7,c7 grieve the action in accordance with an internal grievance process that the ,secretary1 in consultation with the ,assistant ,secretary for ,accountability and ,whistleblower ,protection1 shall establish for purposes of this subsection4 7#c7 ,a final decision by the ,secretary under paragraph 7#a77;,b7 that is not grieved1 and a grievance decision under paragraph 7#b77;,c71 shall be final and conclusive4 7#d7 ,the procedures under chapter #dc of title #e shall not apply to a removal1 demotion1 or suspension under this section1 and the ,secretary may carry out such a removal1 demotion1 or suspension without first placing a covered individual on a performance improvement plan4 7c7 ,timing 7#a7 7,a7 ,the aggregate period for notice1 response1 and final decision by the ,secretary of an action under this section may not exceed #ae business days4 7,b7 ,the period for the response of a covered individual to a notice under subsection 7b77#b77;,a7 shall be #g business days4 7,c7 ,the final decision by the ,secretary under subsection 7b77#a77;,b7 shall-- 7i7 be issued not later than #ae business days after notice is provided under subsection 7b77#b77;,a72 and 7ii7 be in writing and shall include the specific reasons for the decision4 7,d7 ,the ,secretary shall ensure that the grievance process established under paragraph 7#b77;,c7 takes fewer than #ba days after the final decision4 7d7 ,judicial review 7#a7 ,a covered individual adversely affected by a final decision under this section that is not grieved1 or by a grievance decision under subsection 7b77#b77;,c71 may obtain judicial review of such decision4 7#b7 ,any removal1 demotion1 or suspension under this section is not appealable to the ,merit ,systems ,protection ,board1 or to any administrative judge or other person appointed by the ,merit ,systems ,protection ,board4 7#c7 ,in any case in which judicial review is sought under paragraph 7#a71 the court shall review the record and may set aside any ,department action found to be-- 7,a7 arbitrary1 capricious1 an abuse of discretion1 or otherwise not in accordance with a provision of law2 7,b7 obtained without procedures required by a provision of law having been followed2 or 7,c7 unsupported by substantial evidence4 7#d7 ,except to the extent that an appeal under this subsection presents a constitutional issue1 such court may not review a challenge to the penalty imposed against the covered individual or mitigate such penalty4 7e7 ,demoted individuals 7#a7 ,a demotion under subsection 7a7 shall be carried out as a reduction in grade for which the covered individual is qualified1 that the ,secretary determines is appropriate1 and that reduces the annual rate of pay of the covered individual4 7#b7 ,notwithstanding any other provision of law1 any covered individual so demoted-- 7,a7 shall1 beginning on the date of such demotion1 receive the annual rate of pay applicable to such grade2 7,b7 may not be placed on administrative leave during the period during which an appeal 7if any7 under this section is ongoing1 and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual1 sick1 family medical1 military1 or court leave2 and 7,c7 who does not report for duty or receive approval to use accrued unused leave shall not receive pay or other benefits4 7f7 ,whistleblower protection 7#a7 ,in the case of a covered individual seeking corrective action 7or on behalf of whom corrective action is sought7 from the ,office of ,special ,counsel based on an alleged prohibited personnel practice described in section #bcjb7;b7 of title #e1 the ,secretary may not remove1 demote1 or suspend such covered individual under subsection 7a7 without the approval of the ,special ,counsel under section #abad7;f7 of title #e4 7#b7 ,in the case of a covered individual who has made a whistleblower disclosure to the ,assistant ,secretary for ,accountability and ,whistleblower ,protection1 the ,secretary may not remove1 demote1 or suspend such covered individual under subsection 7a7 until-- 7,a7 in the case in which the ,assistant ,secretary determines to refer the whistleblower disclosure under section #cbc7;c77#a77;,d7 of this title to an office or other investigative entity1 a final decision with respect to the whistleblower disclosure has been made by such office or other investigative entity2 or 7,b7 in the case in which the ,assistant ,secretary determines not to refer the whistleblower disclosure under such section1 the ,assistant ,secretary makes such determination4 7g7 ,termination of investigations by office of special counsel 7#a7 ,notwithstanding any other provision of law1 the ,special ,counsel 7established by section #abaa of title #e7 may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the ,department after the ,special ,counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation4 7#b7 ,such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee4 7h7 ,application ,this section shall apply to any performance or misconduct of a covered individual beginning on the date of enactment of the ,department of ,veterans ,affairs ,accountability and ,whistleblower ,protection ,act of #bjag 7,public ,law #aae-da74 7i7 ,definitions ,in this section3 7#a7 ,the term civil service has the meaning given that term in section #baja of title #e4 7#b7 ,the term covered individual means an employee of the ,department who is a supervisor or management official as defined in section #gajc7;a7 of title #e occupying a position at the ,department1 including individuals appointed pursuant to this title1 title #e1 and hybrid employees appointed pursuant to section #gdja of this title1 but does not include-- 7,a7 an individual occupying a senior executive position 7as defined in section #gac7;d7 of this title72 7,b7 an individual appointed pursuant to section #gcjf1 #gdja7a71 #gdja7d71 or #gdje of this title2 7,c7 an individual who has not completed a probationary or trial period2 or 7,d7 a political appointee4 7#c7 ,the term grade has the meaning given such term in section #geaa7;a7 of title #e4 7#d7 ,the term misconduct includes neglect of duty1 malfeasance1 or failure to accept a directed reassignment or to accompany a position in a transfer of function4 7#e7 ,the term political appointee means an individual who is-- 7,a7 employed in a position described under sections #ecab through #ecaf of title #e 7relating to the ,executive ,schedule72 7,b7 a limited term appointee1 limited emergency appointee1 or noncareer appointee in the ,senior ,executive ,service1 as defined under paragraphs 7#e71 7#f71 and 7#g71 respectively1 of section #cacb7;a7 of title #e2 or 7,c7 employed in a position of a confidential or policy-determining character under schedule ,c of subpart ,c of part #bac of title #e1 ,code of ,federal ,regulations1 or successor regulation4 7#f7 ,the term suspend means the placing of an employee1 for disciplinary reasons1 in a temporary status without duties and pay for a period in excess of #ad days4 7#g7 ,the term whistleblower disclosure has the meaning given such term in section #cbc7;g7 of this title4 4 7#b7 ,clerical amendment ,the table of contents for title #ch1 ,united ,states ,code1 is amended by inserting after the item relating to section #gaa the following3 #gab4 ,supervisors3 removal1 demotion1 or suspension based on performance or misconduct4 4 #c4 ,senior executives3 modification of procedures to remove1 demote1 or suspend based on performance or misconduct ,section #gac of title #ch1 ,united ,states ,code1 is amended-- 7#a7 in subsection 7a7-- 7,a7 in paragraph 7#a71 by inserting by substantial evidence after determines2 and 7,b7 by adding at the end the following new paragraphs3 7#c7 ,when making an initial decision under this subsection with respect to determining whether a covered individual should be reprimanded or suspended1 involuntarily reassigned1 demoted1 or removed1 the deciding employee of the ,department shall exclusively apply the following factors3 7,a7 ,the nature and seriousness of the offense1 and its relation to the covered individual's duties1 position1 and responsibilities1 including whether the offense was intentional or technical or inadvertent1 or was committed maliciously or for gain1 or was frequently repeated4 7,b7 ,the covered individual's job level and type of employment1 including supervisory or fiduciary role1 and prominence of the position4 7#d7 ,the ,secretary shall review the initial decision and uphold such decision if it is supported by substantial evidence4 2 7#b7 in subsection 7b7-- 7,a7 in paragraph 7#c71 by inserting after the final decision after #ba days2 and 7,b7 by adding at the end the following3 7#g7 ,except to the extent that an appeal under this subsection presents a constitutional issue1 such court may not review a challenge to the penalty imposed against the covered individual or mitigate such penalty4 2 and 7#c7 by redesignating subsection 7d7 as subsection 7e72 and 7#d7 by inserting after subsection 7c7 the following new subsection 7d73 7d7 ,application ,this section shall apply to any misconduct or performance of a covered individual beginning on the date of the enactment of the ,department of ,veterans ,affairs ,accountability and ,whistleblower ,protection ,act of #bjag 7,public ,law #aae-da74 4 #d4 ,modification of disciplinary procedures for employees of the ,department of ,veterans ,affairs 7a7 ,department of ,veterans ,affairs employee discipline modifications ,section #gad of title #ch1 ,united ,states ,code1 is amended-- 7#a7 in subsection 7a7-- 7,a7 in paragraph 7#a71 by inserting by substantial evidence after the ,secretary determines2 and 7,b7 by adding at the end the following3 7#c7 7,a7 ,when making an initial decision under this subsection with respect to determining whether a covered individual should be removed1 demoted1 or suspended1 the deciding employee of the ,department shall exclusively apply the following factors3 7i7 ,the nature and seriousness of the offense1 and its relation to the covered individual's duties1 position1 and responsibilities1 including whether the offense was intentional or technical or inadvertent1 or was committed maliciously or for gain1 or was frequently repeated4 7ii7 ,the covered individual's job level and type of employment1 including supervisory or fiduciary role1 and prominence of the position4 7iii7 ,the covered individual's past disciplinary record4 7iv7 ,the covered individual's past work record1 including length of service1 performance on the job1 ability to get along with fellow workers1 and dependability4 7v7 ,mitigating circumstances surrounding the offense such as unusual job tensions1 personality problems1 mental impairment1 harassment1 or bad faith1 malice1 or provocation on the part of others involved in the matter4 7,b7 ,the ,secretary shall review the initial decision and uphold such decision if it is supported by substantial evidence4 2 7#b7 in subsection 7c7-- 7,a7 by striking paragraph 7#a77;,d72 and 7,b7 in paragraph 7#c71 by inserting before the period the following3 1 and the ,secretary may carry out such a removal1 demotion1 or suspension without first placing a covered individual on a performance improvement plan2 7#c7 in subsection 7d7-- 7,a7 in paragraph 7#b71 by adding at the end the following3 7,c7 ,except to the extent that an appeal under this subsection presents a constitutional issue1 the administrative judge may not review a challenge to the penalty imposed against the covered individual4 2 7,b7 in paragraph 7#c71 by adding at the end the following3 7,d7 ,except to the extent that an appeal under this subsection presents a constitutional issue1 the ,merit ,systems ,protection ,board may not review a challenge to the penalty imposed against the covered individual4 2 7,c7 in paragraph 7#e71 by adding at the end the following3 7,c7 ,except to the extent that an appeal under this subsection presents a constitutional issue1 such ,court may not review a challenge to the penalty imposed against the covered individual or mitigate such penalty4 2 and 7,d7 by striking paragraph 7#aj72 7#d7 by redesignating subsection 7h7 as subsection 7j72 7#e7 by inserting after subsection 7g7 the following3 7h7 ,collective bargaining agreements ,the procedures in this section shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures4 7i7 ,application ,this section shall apply to any performance or misconduct of a covered individual beginning on the date of the enactment of the ,department of ,veterans ,affairs ,accountability and ,whistleblower ,protection ,act of #bjag 7,public ,law #aae-da74 2 and 7#f7 in paragraph 7#a7 of subsection 7j71 as redesignated by paragraph 7#d7-- 7,a7 in the matter before subparagraph 7,a71 by inserting including individuals appointed pursuant to this title1 title #e1 and hybrid employees appointed pursuant to section #gdja of this title1 after ,department12 7,b7 in subparagraph 7,d71 by striking the period and inserting 2 or2 and 7,c7 by adding after subparagraph 7,d7 the following3 7,e7 a supervisor or management official as defined in section #gajc7;a7 of title #e4 4 7b7 ,veterans ,health ,administration employee discipline modifications ,section #gdjc7;f77#c7 of such title is amended-- 7#a7 by striking ,notwithstanding any other provision of this title or other law1 and inserting 7,a7 ,notwithstanding any other provision of this title or other law1 and consistent with subparagraph 7,b712 and 7#b7 by adding at the end the following3 7,b7 ,with respect to any covered individual 7as that term is defined in section #gab or #gad7 appointed to such positions1 such matters shall be resolved1 at ,secretary's sole discretion1 under-- 7i7 section #gab2 7ii7 section #gad2 or 7iii7 title #e as though such individuals had been appointed under that title4 4