[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] OVERSIGHT OF THE FEDERAL WORKFORCE: THE VIABILITY OF THE SENIOR EXECUTIVE SERVICE ======================================================================= HEARING before the SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL SERVICE AND THE CENSUS of the COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ JULY 11, 2014 __________ Serial No. 113-134 __________ Printed for the use of the Committee on Oversight and Government Reform Available via the World Wide Web: http://www.fdsys.gov http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE 89-782 WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM DARRELL E. ISSA, California, Chairman JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland, MICHAEL R. TURNER, Ohio Ranking Minority Member JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of JIM JORDAN, Ohio Columbia JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts TIM WALBERG, Michigan WM. LACY CLAY, Missouri JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts JUSTIN AMASH, Michigan JIM COOPER, Tennessee PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT, TREY GOWDY, South Carolina Pennsylvania BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois DOC HASTINGS, Washington ROBIN L. KELLY, Illinois CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois ROB WOODALL, Georgia TONY CARDENAS, California THOMAS MASSIE, Kentucky STEVEN A. HORSFORD, Nevada DOUG COLLINS, Georgia MICHELLE LUJAN GRISHAM, New Mexico MARK MEADOWS, North Carolina Vacancy KERRY L. BENTIVOLIO, Michigan RON DeSANTIS, Florida Lawrence J. Brady, Staff Director John D. Cuaderes, Deputy Staff Director Stephen Castor, General Counsel Linda A. Good, Chief Clerk David Rapallo, Minority Staff Director Subcommittee on Federal Workforce, U.S. Postal Service and the Census BLAKE FARENTHOLD, Texas, Chairman TIM WALBERG, Michigan STEPHEN F. LYNCH, Massachusetts, TREY GOWDY, South Carolina Ranking Minority Member DOUG COLLINS, Georgia ELEANOR HOLMES NORTON, District of RON DeSANTIS, Florida Columbia WM. LACY CLAY, Missouri C O N T E N T S ---------- Page Hearing held on July 11, 2014.................................... 1 WITNESSES Mr. Stephen Shih, Deputy Associate Director, Executive Resources and Employee Development, U.S. Office of Personnel Management Oral Statement............................................... 4 Written Statement............................................ 7 Mr. Samuel Retherford, Principal Deputy Assistant Secretary, Office of Human Resources and Administration, U.S. Department of Veterans Affairs Oral Statement............................................... 15 Written Statement............................................ 17 Ms. Carol A. Bonosaro, President, Senior Executives Association Oral Statement............................................... 23 Written Statement............................................ 25 APPENDIX Answers to questions for the record from Carol A. Bonosaro, submitted by Chairman Farenthold............................... 50 Answers to questions for the record from Mr. Stephen Shih, submitted by Chairman Farenthold............................... 53 OVERSIGHT OF THE FEDERAL WORKFORCE: THE VIABILITY OF THE SENIOR EXECUTIVE SERVICE ---------- Friday, July 11, 2014 House of Representatives, Subcommittee on Federal Workforce, U.S. Postal Service, and the Census, Committee on Oversight and Government Reform, Washington, D.C. The subcommittee met, pursuant to call, at 9:29 a.m., in Room 2154, Rayburn House Office Building, Hon. Blake Farenthold [chairman of the subcommittee] presiding. Present: Representatives Farenthold, Walberg, and Lynch. Staff Present: Melissa Beaumont, Assistant Clerk; Will L. Boyington, Deputy Press Secretary; Molly Boyl, Deputy General Counsel and Parliamentarian; Adam P. Fromm, Director of Member Services and Committee Operations; Linda Good, Chief Clerk; Jennifer Hemingway, Senior Professional Staff Member; Laura Rush, Deputy Chief Clerk; Andrew Shult, Deputy Digital Director; Peter Warren, Legislative Policy Director; Jaron Bourke, Minority Director of Administration; Lena Chang, Minority Counsel; Julia Krieger, Minority New Media Press Secretary; Mark Stephenson, Minority Director of Legislation; and Katy Teleky, Minority Staff Assistant. Mr. Farenthold. Good morning. The Subcommittee on the Federal Workforce, U.S. Postal Service, and Census will come to order. I would like to begin this hearing by reading the mission statement of the Oversight Committee, as we normally do. We exist to secure two fundamental principles: First, Americans have a right to know what the money Washington takes from them is well spent. And, second, Americans deserve an efficient, effective government that works for them. Our duty on the Oversight and Government Reform Committee is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right to know what they get from their government. We will work tirelessly in partnership with citizens watchdogs to deliver the facts to the American people and bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government Reform Committee. And we'll start with my opening statement. It is critical and challenging questions surround the future of the Senior Executive Service. The SES was created in 1979, was envisioned as a mobile executive corps with a broad view and ability to manage across the Federal Government. The Office of Personnel Management, the OPM, was charged with administering the program and assisting agencies in selecting, developing, and managing the most experienced segment of the Federal workforce. More than a decade ago, changes to the SES pay system were implemented to alleviate pay compensation and better focus--I'm sorry--pay compression and better focus compensation based on performance. Despite these statutory requirements, the committee's oversight work has shown that the government continues to lack the quality executive leadership necessary to administer key governmental services and programs. We have seen scandals like an senior executive relaxing in a hot tub with a glass of wine on the taxpayers' dime, while another refuses to cooperate with Congress despite her admission that her employing agency targeted conservative organizations for applying to tax-exempt status. Data from the OPM shows career SES employees received, on average, approximately $62 million in performance awards each year for the last 5 fiscal years, that's 2009 through 2013. At some agencies, 90 percent or more of the career SES folks received bonuses. Questions about the viability of SES also come to mind when thinking about the Department of Veterans Affairs. The VA became embroiled in a scandal where employees falsified waitlists and made veterans wait for months for needed care while VA executives took more than $2.8 million in bonuses. That was in fiscal year 2013. Clearly, they were failing to deliver on the agency's promise to our Nation's veterans. These are just some examples of the many points that need to be addressed to restore public confidence in government by increasing accountability and performance within the executive corps. So today's hearing is an opportunity to take a detailed look at the SES, from the assignment of SES positions to the accountability and compensation of individual leaders. It is a chance to discuss how we can institute a system that allows agencies to more quickly and fairly remove poor leaders whose appointments do not have time limitations while guarding against politically-motivated actions. Some will argue the government has all the laws, regulations, and tools in place to fire people. Yet in May, the House agreed on a need for a higher standard and overwhelmingly passed legislation to make senior executives at the VA at-will employees. One year ago, the House passed legislation to place SES workers on unpaid leave for misappropriation of funds, neglect of duty, or malfeasance. I look forward to discussing how these and other reforms can help us ensure the government hires, compensates, and manages the executive workforce to meet the needs of their taxpayer-funded mission. At this point, I will now recognize the distinguished ranking member, the gentleman in Massachusetts, Mr. Lynch, for his opening statement. Mr. Lynch. Thank you, Mr. Chairman. I would like to thank you for holding this hearing and the purpose of examining issues concerning performance, management, and accountability in the Senior Executive Service. I'd also like to welcome our witnesses. Thank you for your willingness to help this committee with its work. Recent reports concerning unacceptable patient wait times and inappropriate scheduling practices at facilities within the Department of Veterans Affairs healthcare system have again underscored the importance of enacting meaningful reform. In addition, allegations of wrongdoing by senior officials at the Phoenix VA Medical Center and several other VA clinics nationwide have given rise to the question of whether we must also reform the current system under which Federal Government agencies evaluate and compensate their senior executive personnel and hold them accountable for poor job performance. In the context of VA, Congress has recently undertaken a series of bills that seek to strengthen department management of Senior Executive Service personnel. Including among these efforts is H.R. 4031, the Department of Veterans Affairs Management Accountability Act, which passed the House of Representatives by a vote of 309 to 33. This legislation would authorize the Secretary of Veterans Affairs to remove an individual from Senior Executive Service at will, as the chairman has noted, upon the Secretary's determination that the performance of the individual warrants such removal. Most recently, Senator Kelly Ayotte of New Hampshire and Senator Claire McCaskill of Missouri have introduced Senate bill 2545, legislation to require the Secretary of Veterans Affairs to revoke bonuses to any employees involved in the manipulation of electronic patient waitlists. I would note that these measures are largely based on the management issues that have been cited as specific to the Department of the VA. As noted by White House Deputy Chief of Staff Rob Nabors in his June 27th report to the President on issues impacting timely care at the VA, ``a corrosive culture has led to personnel problems across the Department that are seriously impacting morale and by extension the timeliness of health care. The problems inherent within the agency with an extensive field structure are exacerbated by poor management and communication structures. Distrust between some VA employees and management, a history of retaliation toward employees raising issues, and a lack of accountability across all grade levels.'' While I am positive that that is not the case in all VA facilities, and we did a very stem-to-stern review of the three VA hospitals in my district, and they received 5-star rating on review, and I do not want to impugn all VA employees, I do strongly believe that we must make every effort to hold accountable those senior agency personnel who are found to be complicit in wrongdoing at the VA. It is my understanding that some of my colleagues across the aisle may now be considering legislation that seeks to dramatically impact the Senior Executive Service across the board in all agencies, even those that are doing very well, including a proposal that would subject Senior Executive Service personnel at every Federal agency to at-will determination without notification, due process, or the right of appeal. I would urge my colleagues to exercise caution and due diligence before taking such a severe step. I want to remind my colleagues that such a reform would eliminate one of first and most significant Federal laws to prevent political patronage and corruption, the Pendleton Act, passed back in 1883. And thanks to the Pendleton Act, the great majority of our nearly 7,400 career reserves and general members of the Senior Executive Service and dedicated--are dedicated and effective nonpartisan public servants. With that, I would just like to close and say I--that I look forward to hearing the testimony of our witnesses. Thank you. I yield back. Mr. Farenthold. Thank you very much. Mr. Farenthold. Just as a matter of housekeeping, we do have early votes in the House today. Hopefully, we will get finished before the votes. If not, we will recess and come back and complete immediately following the votes. And also, members will have 7 days to submit opening statements for the record. Now we will recognize our panel. Mr. Stephen Shih is Deputy Associate Director of Executive Resources and Employee Development at the United States Office of Personnel Management. Welcome sir. Mr. Samuel Retherford is a Principal Deputy Assistant Secretary of the Office of Human Resources and Administration at the United States Department of Veterans Affairs. Welcome to you, sir. And Ms. Carol A. Bonosaro is president of the Senior Executives Association. Welcome, Ms. Bonosaro. Pursuant to the committee rules, all witnesses will be sworn in before they testify. Would you please rise and raise your right hand. Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? Let the record reflect all witnesses have answered in the affirmative. Please be seated. Thank you very much. Again, we're going to follow the normal rules of the committee, where you will have--each have 5 minutes to make your opening statement, and then we will rotate through the panel up here with a 5-minute rounds of questions. So let's go ahead and begin with Mr. Shih. You are recognized for 5 minutes, sir. WITNESS STATEMENTS STATEMENT OF STEPHEN SHIH Mr. Shih. Thank you, Chairman Farenthold. Chairman, Ranking Member Lynch, and distinguished members of the subcommittee. Thank you for holding this hearing and for inviting me to speak today about the Senior Executive Service and the United States Office of Personnel Management's role in managing the SES. I appreciate your interest in ensuring the Federal Government is doing everything possible to enable and hold accountable an effective senior leadership corps. Members of the SES are front and center in managing the challenges that come with operating in a budget-constrained environment where Federal agencies are often asked to continue to carry out their critical missions, and in some cases, increased requirements with reduced resources. SES members are responsible for providing leadership within agencies and across agencies to meet the changing needs and priorities of the American people, and to provide consistency in leadership across administrations. SES members are directly accountable for individual and organizational performance. Their compensation is based upon their performance, and they are subject to removal from the SES for performance or from Federal service entirely for misconduct and other reasons. The responsibilities for human capital management of the SES have been divided by statute between agencies and OPM. And this division reflects a balancing of the important needs of individual agencies and the important needs of the entire Federal Government. On one hand, agencies strongly need direct operational control and flexibility to apply their expertise in best addressing their mission and agency-specific requirements. On the other hand, the Federal Government in our entire Nation have a strong interest in ensuring that agencies operate consistently and efficiently, accomplished through the centralized leadership, government-wide standards, and oversight for which OPM is responsible. For example, OPM is required, in consultation with OMB, to review requests from each agency to allocate a specific number of SES positions for each agency. And this responsibility helps ensure appropriateness and consistency in the establishment of SES positions. In this way, OPM also helps ensure appropriate numbers of senior executive positions are in place within each agency and across the Federal Government to enable effective and continual operations of government agencies and programs. Agencies have authority to recruit, assess, and hire SES employees. Specifically, agencies make career SES appointments through a competitive merit staffing process that includes requirements to ensure fair and open competition and selection based upon merit. OPM is required to establish one or more Qualifications Review Boards, QRBs, to certify the executive qualifications of agencies' proposed candidates for initial appointment to the SES cadre. OPM also has reserved the authority to review agencies' proposed career SES appointments to ensure that they comply with all merit staffing requirements and are free of any impropriety. Agencies also have the authority to determine, in accordance with OPM criteria, initial pay for SES members, and then to determine additional compensation through salary adjustments and performance awards. These are a combination of tools for the overall compensation of the Senior Executive Service members based on performance. OPM annually reviews data on agencies' SES performance ratings, pay adjustments, and performance awards to assess whether agencies differentiate pay based upon performance, including appropriately granting SES performance awards to encourage excellence in performance. Again, this is OPM's responsibility to help provide appropriateness and consistency across the Federal Government. Each agency is required to develop one or more performance appraisal systems for SES members subject to OPM standards and the agency's appointing authority. Typically the agency head issues final performance ratings and determines correlating compensation for SES members in the agency. OPM is responsible for reviewing the agency's SES performance appraisal system for compliance with government- wide requirements of law, regulations, and OPM standards to determine appropriateness for OPM approval of the system. This approval allows the agency to implement the system. Subsequently, OPM may review the agency's implementation of the system to determine adherence to government-wide law, regulations, and standards. Based upon this review, OPM may, with OMB concurrence, then certify the system, and the certification enables the agency to access the higher rates of pay to recruit and compensate their senior executives. Agencies have the authority and responsibility, and in specific situations, are required by law to address poor SES performance by reducing pay, reassigning or transferring SES members, or removing them entirely from the SES. Agencies also have the authority and responsibility to address SES disciplinary matters, including misconduct, neglect of duty, or malfeasance, by taking actions against the SES members, such as reductions in pay, suspensions lasting more than 14 days, or removal entirely from the Federal service. OPM takes seriously its responsibilities pertaining to the SES and remains committed to providing centralized leadership and oversight on the management of the SES members across the government. Thank you for inviting me here today, and I am happy to answer any questions you may have. Mr. Farenthold. Thank you very much, Mr. Shih. [Prepared statement of Mr. Shih follows:] [GRAPHIC] [TIFF OMITTED] Mr. Farenthold. Mr. Retherford, you are now recognized for 5 minutes for your opening statement. STATEMENT OF SAMUEL RETHERFORD Mr. Retherford. Thank you. Chairman Farenthold, Ranking Member Lynch, distinguished members of the subcommittee, thank you for this opportunity to appear before you today. I would like to express on behalf of the VA workforce our commitment to serve veterans. To accomplish this mission, we must recruit and retain the best talent, many of whom require special skills in health care, information technology, and benefits delivery. In general, VA requires talented executives to manage the complex set of VA facilities and programs. We are competing in tough public and private labor markets, and to remain competitive, we rely in part on incentives and awards that attract and retain talent and recognize superior performance. I want to highlight that awards are part of the SES pay structure. As outlined in the statute, awards were designed to be part of SES compensation. That is the premise of pay for performance. Failure to recognize performance puts VA at risk of losing our most effective senior talent. Most critical to applying higher salary and performance awards is having an OPM-certified appraisal system. Without OPM certification, salaries are restricted and awards are not permitted. The OPM process is rigorous and requires that performance distinctions must be made. VA has such an executive appraisal position approved by OPM. That said, we definitely recognize that we must do better in holding our leaders accountable. Fundamental to obtaining accountability is rigorous implementation and oversight of performance plans that align organizational goals to executives. To have a good program, we must improve our performance management capabilities. The VA leadership must also more thoroughly engage in managing SES performance plans to include setting and verifying outcomes and documenting shortcomings. Performance management has many challenges. By its nature, it is very subjective and complex. It is used to identify superlative and poor performers, and it is the foundation of development, mentoring, and accountability. Our senior executives must know how to craft good outcome- focused objectives. They must fully understand the process and know how to document deficiencies so that decisions on performance will be defensible and prevail during the due- process steps that follow those decisions. In the evaluation of performance, the process VA uses is only in the second year. It is described in my written testimony, but I would like to touch on a few points. First, we use the OPM-approved government-wide form and the five rating standards. Executive performance objectives are assembled into five OPM-critical elements or competencies and are weighted by VA with the heaviest weightings of 40 percent on the results-driven element and 40 percent in the two elements for leading. With more experience with the new system, we believe there will be greater consistency and clarity. Second, I want to point out that VA's performance appraisal system goes beyond minimum OPM standards. VA added a reviewing official, which is not required, as part of the rating process and added performance review committees that conducted initial review of appraisals prior to review by the VA Performance Review Board. These new features provide four levels of scrutiny: rater, reviewer, committee, and the board, prior to recommendation to the Secretary. Third, VA added our I Care Values of integrity, commitment, advocacy, respect, and excellence to leading people. We are currently working to add standards of conduct to our SES appraisal system. And lastly, we are working towards moving away from paper towards information technology solution. This is our first year of an automated system. Automating our performance management system will enable visibility and oversight of the process, allow full and timely review of performance plans as they are being developed, and to provide a repository for documentation. We are also working to automate talent management, which will allow visibility of requirements and the skill sets of our executives. In closing, I am a recent addition to VA, having arrived last January. I have read the reports, assessed many of our systems and capabilities, and noted areas of concern. We are working hard on solutions, which includes revising policies, establishing new executive training, and applying information technology. The Acting Secretary is committed to use all authorities to enforce accountability, restore trust, and change the VA culture. I believe our efforts in improving performance management in the VA will set many of the conditions for the new VA culture. Thank you for this opportunity to appear before you today. I look forward to answering your questions. Mr. Farenthold. Thank you, Mr. Retherford. [Prepared statement of Mr. Retherford follows:] [GRAPHIC] [TIFF OMITTED] Mr. Farenthold. Ms. Bonosaro, you are up for 5 minutes. STATEMENT OF CAROL A. BONOSARO Ms. Bonosaro. Chairman, Ranking Member Lynch, and members of the subcommittee. Thank you for the opportunity to testify today. The Senior Executives Association represents nearly 7,000 career members of the SES. For several years, we have been sounding the alarm about the challenges facing the SES in areas of needed reform. Many of these issues have now become critical in the face of problems at the Department of Veterans Affairs. So I would like to make just two points: First, with regard to the state of the SES. A strong SES is critical to effective agency operations and workforce management. Yet there are serious risks to both the short- and long-term viability of the senior career executive system. Career SES are highly qualified professionals who oversee sizeable agency budgets and complex programs, have a large span of control, and are often also technical experts in their fields, and face a rigorous selection process to enter the SES. They are in a completely different personnel system with no locality pay, all pay adjustments and awards based on performance and entirely discretionary with the agency, and they have no effective appeal rights. The perception seems to be that a certain number of executives must be poor performers and that the ratings of many are inflated. If a large number of senior executives were not working at the ``fully successful'' or better level, it would indicate an ineffective selection process. Where there are poor performers, sufficient remedies exist to hold them accountable with relative ease. And let me make clear, SEA believes that they should and must be held accountable. A February survey of our membership found 51 percent of respondents rating overall morale among the SES at their agencies as low or very low. The rate of retirement of current SES is up 40 percent since 2009. And talented, able GS-14s and 15s are declining to go into the SES. Thus the service may well become a place of last resort as high-performing employees take their skills to the private sector. What's led to this situation? An essentially broken pay- for-performance system, the pay freeze, substantial reduction in performance awards, a suspension of the Presidential Rank Awards in 2013, ever increasing challenges to do more with less. But also, a series of punitive legislative proposals to penalize all senior executives, regardless of their performance and an atmosphere which inhibits risk-taking and innovation because failure is unacceptable and in which too many executives facing investigations have been treated as guilty until proven innocent. SEA recommends some essential reforms for the SES. Outlined--they are outlined in our written statement. And we stand ready to work with the subcommittee in a comprehensive review of the system to ensure reforms that promote fairness, transparency, and efficient government management. The continued viability of the SES depends on such reform. My second point has to do with the serious allegations regarding operations at the VA. And we fully appreciate Congressional concerns regarding those allegations. However, the focus on career leadership is wrong. The systemic issues at VA will remain, irrespective of changes in the personnel system. Because these are systemic issues, they are ones which political leadership has repeatedly failed to address. Political leadership, not career executives, call the shots, to use the vernacular. Tools exist to fire senior executives with ease, and it is total nonsense to suggest that they don't. If they are not being used, it is for one of two reasons: Either the executive isn't actually accountable, or political leadership isn't willing to use the tools. To provide just one example, falsifying government records is a criminal act. If someone is believed to have falsified records, a case can and should be referred to the IG, and upon verification the case should be referred to the Department of Justice for prosecution. Punishing all VA senior executives by banning performance awards, irrespective of performance, or creating at-will employment in the SES which could enable a new administration to clean out the Department and bring in ill-qualified candidates, will do more harm than good. The best current executives will retire, excellent candidates will refrain from applying. And who will be left to provide the care and services which veterans need and deserve? What has been proposed will create more harm than good. But what SEA is suggesting is not a quick or easy fix. But if we care about ensuring that taxpayers have the best career leadership corps necessary to provide quality programs and services, then the focus should be turned to needed reforms to the SES system and to holding political leadership accountable. Mr. Farenthold. Thank you very much, Ms. Bonosaro. [Prepared statement of Ms. Bonosaro follows:] [GRAPHIC] [TIFF OMITTED] Mr. Farenthold. And I will begin with the first round of questions. Mr. Retherford, you testified that the bonus structure was actually, you know, part of the compensation package, I believe--I don't remember your exact words. But you said it is used as consideration of the part of overall compensation package. When that's the case, then, is there--doesn't that create a reluctance to not award the bonuses when, in fact, it hasn't been earned, or there hasn't been exceptional performance? Mr. Retherford. Chairman, not necessarily so. The performance plans are evaluated through a various--the four levels I mentioned, the rate, review, official review committees, and the board. And recommendations go to the Secretary. We make distinctions in evaluation. Our highest level, the ``outstanding'' rating, we only had 21 percent this year. And I think at the next level, we had--I don't have the exact numbers. But government-wide, the ``outstanding'' rating is much higher than that. But the awards, performance awards are only given to the highest performers who clearly exceed their performance objectives and their performance plan. Mr. Farenthold. Now, you talked about rolling out a system of automated metrics for determining bonuses. My concern with that is in the recent scandal that we have seen with the VA, it was like that system was being gamed. Rather than entering appointment requests into the computer system, you saw pressure on folks at the VA to keep separate paper lists. So the automated metrics system then wouldn't have caught those delays. What actions are being taken to ensure the system--other automated metrics aren't being gamed in the same fashion? Mr. Retherford. Thank you, Mr. Chairman. The information technology system I referred to will automate all the SES performance plans across the VA. We have over 501 senior executives. Right now it is all paper. This was the first year we required performance plans to be put into an automated system. Therefore, we can look and see what the performance objectives are. We can review all the performance plans at the essential level. Not only that, we can make sure they are all done within the first 30 days of the rating period. We can make sure counselings are done. And will have an audit trail of documents of mid-year assessments and identification of shortcomings. Prior to that, we had no ability at an organization as large as the VA Mr. Farenthold. Mr. Retherford, I don't mean to sound like I'm picking on you, but one of my big concerns is the VA. We have a responsibility to keep the promises we have made to our veterans. So I am a little bit worried. And then the committee has learned that in 20--fiscal year 2011 and 2013, 339 SES employees at the VA charged an average of 90 days' administrative leaves for various reasons, as compared to a government-wide average of 4 days per SES employee during the same time period for various reasons. Would you explain the reasons behind the VA high average use of administrative leave by SES? Mr. Retherford. Mr. Chairman, I don't have the information on that. I would like to take that for the record. Mr. Farenthold. Would you please get back to us on this? Mr. Retherford. I will. Mr. Farenthold. Can you tell us what some of the reasons or activities SES employees are allowed to use administrative leave? Mr. Retherford. Administrative leave is used for a variety of reasons. In the current system, we can't tell exactly what the reasons are. But they are for investigations; a person will be put on administrative leave when they can't perform duties in the VA where it is just too inconvenient or present a bad-- -- Mr. Farenthold. I'm quickly running out of time and I do have some questions about the SES overall. So, Mr. Shih, what, if any, impediments are there to terminating poorly performing SES employees across the Federal Government and within the VA? Mr. Shih. Thank you, Mr. Chairman. I appreciate the question. The current system, the SES statute and regulations by OPM provide tools for agencies to quickly address poor performance by Senior Executive Service members and also misconduct and all other types of wrongdoing. With respect to performance, I'd like to make a couple of quick points. It is very important for agencies to pay close attention to performance during the first year, which is a probationary period of SES's initial appointment to the SES, because there are great flexibilities here for agencies to be able to immediately remove poorly performing probationary SESers from the Senior Executive Service. Following the probationary period, there are strong flexibilities. Agencies can reduce pay, based upon poor performance. One unsatisfactory performance rating requires an agency to reassign, transfer, or remove the senior executive from the SES. All that's required is a written notification 30 days before the effective date. There is no right of an MSPB appeal. There is the availability of an informal hearing before the MSPB within 15 days, but that informal hearing is not binding and it doesn't hold up the effective action. Two unsatisfactory ratings in a period of 5 consecutive years requires to the agency to remove the senior executive member. Same notification, same appeal rights, which is only an informal hearing before of the MSPB. And then two, less than ``fully successful'' ratings in a period of any 3 consecutive years requires the agency also to remove the SESer. Then on the conduct side, again, there are stronger flexibilities for an agency to deal with probationary SESer. And so my recommendation is, again, for agencies to have very strong scrutiny of their senior executives' performance and conduct during that probationary period. Following the conclusion of the probationary period, for any reasons related to misconduct, neglect of duty, malfeasance, or other reasons, agencies can take a number of actions, including reduction in pay, removal from Federal service, or suspension greater than 14 days. What's required is 30 days' advanced written notice, a few other procedural rights, 7 days for the senior executive to respond, and then that executive does have the right to file an MSPB appeal. Mr. Farenthold. All right. I am out of time. I will follow up on that if we get around to a second round of questions. Mr. Lynch, we will recognize for you your questions. Mr. Lynch. Thank you, Mr. Chairman. Again, thank you for being here. I think we are all familiar with the problems at the VA regarding the treatment delays for our veterans. And also, falsified wait times that were used to determine awards and also salary increases. I also understand that the inspector general and the VA have not completed their investigations and audits in order to determine the employees who were responsible for these unacceptable practices. But I do think it makes sense to go after those who need to be held accountable, who made these decisions. And I want to find out from our discussion whether the VA has the tools to do what they need to do, whether they need additional authorization from Congress to hold people accountable. At a very basic level, these veterans have earned, earned this right to excellent health care. They have served. We have an obligation now to step up and meet our obligation to make sure that these veterans and their families are cared for. It is a very, very high bar. This is a--when you think about the way our military works, we're asking people to put their lives aside, to put on that uniform, to serve our country. And so that's a very deep and abiding obligation that they have taken here. And what we are promising, what this Nation has promised is that we will meet that obligation and we will honor that service. And one part of how we honor that service to those veterans is to provide decent health care. And in this case, we have dropped the ball. We have failed in our obligation as a nation. And that's serious, that is dead serious. And so we need to--we need to take a good hard look at this. Mr. Retherford and Mr. Shih, does the VA currently have the authority to rescind or claw back the performance awards that have been rendered to senior executives who may be culpable in this case? Mr. Retherford. Congressman Lynch, currently we do not have the authority to go back and rescind an award. The performance plan, once done, is final. Mr. Lynch. Okay. So what are the parameters and--what's the timetable that--well. You're saying you have no recourse currently? Mr. Retherford. That's correct, sir. Mr. Lynch. Okay. So we need to pass legislation. Mr. Retherford. Sir, if legislation was there, the VA would use all authorities to enforce accountability. Mr. Lynch. Okay. Would--I'm going to ask you, would each of you be supportive of legislation that would allow the VA to downgrade the performance evaluations and rescind the bonus awards for those who were found to be culpable in either falsifying or, you know, perpetrating this fraud upon our veterans and their families? Mr. Retherford. Congressman Lynch, we would use all authorities granted. Mr. Lynch. But would you support the legislation? That's what I'm asking. Mr. Retherford. The legislation to allow us to go back and change ratings once we find--once investigations are completed and we found that there was wrongdoing? Mr. Lynch. Yes. Mr. Retherford. We have indicated that, yes, sir, we would use all authorities. Mr. Lynch. Because I intend to introduce legislation in the House here that would revoke the bonuses paid to VA employees in the manipulation--that were culpable in the manipulation of appointment wait times but also ensure that the performance of these employees are downgraded accordingly. You know, we're going to have to recognize the due process rights. As I said, you know, in my own inspection, going to the VA hospitals in my district, talking to the patients, talking to the families, meeting with the administrators, we found a very high level of performance. So I am interested in focusing like a laser on those individuals who were culpable in this case. And getting back those--those bonuses. And also--and also putting that out as a marker to those in the future who might think about manipulating the process in a way that harms our veterans. So I appreciate the witnesses' testimony. And look forward to working with you. Mr. Farenthold. And if you will give me a copy of that legislation, I would like to read it and possibly sign on as a cosponsor. I agree with the principles there a hundred percent. Mr. Walberg, you are now recognized for 5 minutes. Mr. Walberg. Thank you, Mr. Chairman. And thanks to the witnesses for being here today. Mr. Retherford, how many SES employees have been removed from their positions this year? Mr. Retherford. I am not aware of the number this year. I do have the number for last year. Mr. Walberg. What about the past 5 years? Mr. Retherford. Past 5 years, I don't have. I will take that for the record. Last year, we removed six employees, six executive employees. Mr. Walberg. Six executives. Okay. Records that I have here for fiscal years 2010, 2013 indicate that all 470 VA senior executives received performance ratings of ``fully successful'' or higher. In fiscal year 2010, 76 percent of the VA SES received bonuses averaging $15,000. In fiscal year 2011, 74 percent of the VA SES received bonuses averaging $11,500. In fiscal year 2012, 54 percent of the VA SES received bonuses of $12,000. In fiscal year 2013, 78 percent of VA senior managers had performance ratings that exceeds ``fully successful'' or ``outstanding.'' And more than 2.8 million was paid out in bonuses to executives. Is it likely and realistic that all 470 senior executives would receive the same ``fully satisfactory'' rating today? Mr. Retherford. It is not. The data do not tell the whole story. The VA is at fault for not completing many of the performance evaluations once we remove an executive. For example, the six we removed last year, we should have rendered performance appraisal on them. They had 90 days at the job. The administration, after the action to remove, whether it was performance or misconduct, was not completed, not reflected. We find that is the case in many of the years that we looked at. The administration never caught up, the unsatisfactory performance was never captured, and therefore---- Mr. Walberg. And again, the main reason for not capturing that, catching up with the problem? Mr. Retherford. Failure to adhere to our policies and process. The information technology will help us a long way in monitoring this type of administrative details. Mr. Walberg. Did the bonus system help lead to this problem? Mr. Retherford. I don't think the performance award system led to this problem. The performance awards in 2013 were greatly reduced down to an average of about 9,000 to about 5.5 percent of base salary. So it has been coming down. Mr. Walberg. You testified that the absence of ratings in these two lowest categories is not uncommon for most agencies. Adding that in all of the Federal Government, there were only 12 senior executives rated ``minimally satisfactory'' and three rated ``unsatisfactory'' in fiscal year 2012. Do you really believe that almost 100 percent of career senior executives were successful in their jobs? Mr. Retherford. I do not. And I don't believe the data tell the whole story. Like I said, reports were not rendered after actions were taken. And, additionally, poor-performing senior executives tend to depart and resign and leave before appraisals are submitted. But it is a matter of administration. You still have to complete the performance plan. Mr. Walberg. And clean up with what is left behind. Mr. Retherford. Absolutely. Absolutely. That has not been done. Mr. Walberg. We have certainly seen that with the VA and the IRS. We could talk about that all day here as well. The supervision that went on that allowed destruction of emails and the like, a real problem. Let me ask a general question for all of you, if you'd care to answer. What, if any, impediments are there to terminating poorly performing SES employees across the Federal Government and at the VA? And I'm open to answers from anyone. Mr. Retherford. I think we have all the authorities to do our job and hold folks accountable, executives accountable. The hardest part is performance management, and evaluation is subjective. It's hard. You have to document. You have to know what you're doing to be defensible in the due process steps that follow. So you have to have a good system. You have good objectives aligned to the executive. You have to track them, you have to counsel, you have to document. Because at the end, you have to defend your decision. I think that's the hard part. Executives knowing how to confront poor performance. Mr. Walberg. Ms. Bonosaro? Ms. Bonosaro. I would argue that I think what Mr. Retherford has suggested would be what would be fair; in other words, to make perfectly clear the executive, here is what we expect from you, we're going to hold you to it. The trick is to be certain you have a good enough system that really is-- enables to you evaluate that. But the fact of the matter is that the agency, the Department does not have to put on a major defense if they decide to fire a senior executive. And that's a matter of spine. It is called take the action when it's appropriate. Because that executive has no effective appeal right if they are fired for poor performance. They can go to the MSPB. And if the MSPB agrees with them that their firing was inappropriate, it's only a recommendation to the agency. And which the agency or department can ignore. So it's not as though there is a major bureaucratic effort that one has to go through. And it is quite true that many executives who have not done well, in fact, will retire or get the message and move on out. Mr. Walberg. Thank you. My time has expired. Yield back. Mr. Farenthold. Thank you very much. And I've got just a couple more questions, and we'll give Mr. Lynch an opportunity to ask any questions that he may still have. So Mr. Shih, it's my understanding that a senior executive removed for performance can retain his or her SES pay if placed in a position with lower pay, such as a GS-15. Can you help me understand why we would allow executives removed from their position for performance to retain their pay if placed in a new position? Mr. Shih. Chairman, thank you very much for your thoughtful question. It is a question that I believe is open to discussion. The point that I would have emphasize is the SES statute, all of its purposes are intended to foster, support, and enable the recruitment and retention of top executive talent into the Federal Government. The purpose of the statute is to provide conditions of employment, including compensation and civil service protections that would make the Federal Government an attractive employer and make the Federal Government an attractive place to work. And so all of these provisions that we have been discussing today relating to performance, relating to compensation, relating to due process and also protections such as the fall- back position and safe pay are intended again to foster an environment where we can recruit the top talent. Mr. Farenthold. Do you think that one of the unintended consequences of that is you create a situation where if you can check all the boxes, you're fine, and you can hang on to your job, and there's no real incentive to innovate and for excellence. I mean, you look at your system for rating employees. You'd expect there to be a bell curve with, you know, satisfactory and slightly above satisfactory being the high point in the bell curve. But we see practically no folks getting unacceptable reviews. And a very high percentage at the very top. Mr. Shih. Thank you, Chairman. I believe that with respect to any type of personnel system, including a performance appraisal system, the effectiveness of that system depends greatly on the implementation of that system. And so some of the proposals that have been discussed in terms of providing new tools and new flexibilities and more control for agencies to be able to address situations, I think the answer still is going to remain the same, which is that the success of any of those new tools or new systems is going to depend on the implementation. The other point I'd like to add to that very briefly is that following up on Representative--Ranking Member Lynch's comments regarding actions that employers can take to deal with poor performance, I'd also like to remind the subcommittee that agencies have the authority to address some of these issues after the fact, not only through performance, but also through conduct, malfeasance, neglect of duty, and even law enforcement proceedings. Mr. Farenthold. Great. And let me visit with you for a second, Ms. Bonosera; I didn't mean to ignore you throughout this whole hearing. In the past you've--and in some of your testimony, you've expressed concerns that several so-called scandals have surfaced. As a result, the SES is bearing the brunt of poor judgment and the damaging actions of a few. My frustration is that it seems with each oversight hearing that we have and each oversight review and each ID report, we see an example of poor performance and misconduct. Yesterday, the Commerce Department inspector general found that high ranking executive in the U.S. Patent and Trademark Office improperly used her position to ensure the hiring of the live-in boyfriend of an immediate family member. The IG investigated after receiving a whistleblower complaint and found not only did the executive exert undue influence in the hiring process, but the applicant was not among the most qualified candidates, as determined by the PTO hiring officials. In fact, to the applicant was twice rejected. The executive then interviewed and created an additional position specifically for the applicant. That intervention doesn't seem proper to me. The senior executive threatened to the sue the inspector general for making the report publicly available. It is these examples that have damaged and shaken the faith that Congress has in the leadership. What is the SES doing to tighten up its ranks? And do you think this is acceptable behavior? Ms. Bonosera. Of course that's not acceptable behavior, and it should be dealt with appropriately. You know, I think that's the really sad part of this. We've got so many executives that are doing a phenomenal job. And then we have some who have behaved egregiously. And when they do, they should be dealt with, up to and including, where it is appropriate, criminal prosecution. Because I go back to the point, if senior executives are found to have ordered or falsified records, government records, that includes their own results for performance reviews, for waiting time, whatever, that is a criminal act. And all we need to do is refer it for prosecution when it has been found to have been determined---- Mr. Farenthold. But you don't have to suggest that for us to terminate an executive it has to rise to the level of criminal offense. There have got to be other---- Ms. Bonosera. No. But the point is that those are criminal acts. And I think a few instances of prosecution, where it is found that that has been done, will send the message pretty clearly. I mean, we are talking about making the entire Senior Executive Service at will, with all of the tremendous dangers that that poses, instead of dealing with specific cases that very much deserve to be dealt with. Mr. Farenthold. Do you think the system is perfect as it is? Ms. Bonosera. No. Mr. Farenthold. Or do you come up with some tweaks? Ms. Bonosaro. Absolutely not. I mean, we've got--apart from what you do vis-a-vis the SES itself, for example, we think you need far more training and a straightforward handbook for managers on dealing with poor performance and problem employees. We think agencies have to limit their use of administrative leave to ensure it is used appropriately. We are well aware of cases that have dragged on, people are put on administrative leave for months and months and months. We're also aware of agencies that are ignoring IG recommendations, which are appropriate and based upon their investigation. So there are a lot of issues here that are contributing to this situation. Mr. Farenthold. Thanks so much. I am way over on my time. We are about to run up on votes. I do want to give Mr. Lynch and Mr. Walberg, if they have additional questions, an opportunity. Mr. Lynch. Mr. Retherford, under the standards that are in place right now, you can remove somebody for malfeasance; right? Mr. Retherford. For misconduct--yes. Yes. You can. Mr. Lynch. Why can't we do that? Why can't we, you know, go after these employees? I mean, would part of that--would part of that--look, if an employee conceals that they're--that they're manipulating the wait times and hurting our veterans, that would seem to qualify as malfeasance and misconduct. We can fire them. Are you saying that even if we fire them, having done that, and concealed that from their evaluators, we can't take back the bonus? Is that what you're saying? Mr. Retherford. We don't have the authority--we don't have the authority, Congressman Lynch to do that right now. Mr. Lynch. All right. Thank you, that is good to know. Ms. Bonosera, thank you for your help this morning. Some of my colleagues are suggesting that we apply an at- will standard for all employees across the SES. The problem I have with that is the last time we tried that, every time the administration changed, a new president would come in. If he was a Democrat, he would fire all the Republicans and put all Democrats in. And if the Republican President got elected, he would fire all the Democrats and put all Republicans in. So-- and it really--it stopped the government from working even closely to what we would expect. I don't want to go back to that point. I don't want to go back to that point. And I don't think applying an at-will standard, you know, so that you serve at the will of your boss, you know, the President of the United States, and they can kick whoever they want, whether they are doing a good job or not, I don't think that's the way we should go. But I'd like to hear your thoughts on this idea that we go to and at-will standard across the board. Ms. Bonosera. Well, we're terribly worried about it. We know already that there are a good number of very talented, able GS-14s and 15s who would make terrific SES candidates who aren't interested. They look at this situation, they look at the broken pay system, pay for performance, they look at the pressure on these senior executives, they look at the current atmosphere of guilty till proven innocent, they look at having to deal with political appointees, be on call 24/7. Say, you know what? I don't need that. I'm very happy where I am. So we are terribly concerned about the next generation. I think if we go to at-will employment, I am really fearful for what we're going to see by way of candidates and with the number of executives retiring government-wide. It is a real concern. I mean, if we want the taxpayers to get the quality career leadership they deserve, I think we've got to be far more thoughtful about the kind of reforms we do to the Senior Executive Service. Mr. Lynch. I agree. And I yield back. Mr. Farenthold. Thank you very much. They have just called for votes in the House, but we--we're close enough and have the subway across here from Rayburn that we'll be able to allow Mr. Walberg one more round of questions. Mr. Walberg. I thank the chairman, and I'll be brief. Ms. Bonosera, let me just go back to the issue of compensation. You stated that the balance of risk and reward within the SES has eroded over the years because they are being asked to take on more duties and work longer hours without the same compensation given to general schedule workers. Ms. Bonosaro. Well, that's part of the erosion. It's not without the same compensation. What we've seen happen is that there are an awful lot of senior executives who are supervising those in the general schedule who are earning more than they do. And that creates part of the disincentive, when a talented, able GS-14 or 15 looks at the idea of moving into the SES, why would I do that? Mr. Walberg. Of course, why would I do that would be the opportunity to lead. Opportunity to set policy, opportunity to expand, to encourage people to do a better job. You know, I'm thinking that an average $161,000 per year, plus when you add the potential of salaried bonuses to about $233,000, and then benefits, approximately $70,000, in other words, total compensation potential of $300,000, and the ability to lead, to direct, to establish policy, to expand the capabilities, wow. Ms. Bonosaro. Well, I absolutely agree in terms of the ability to have an impact on the mission, to lead, to innovate, et cetera. The problem is that GS-15 is already getting those benefits, and they are probably, in many cases, earning very close to what that senior executive is earning. So the additional responsibility, plus the additional--the tremendous risk, I've often said it's like having one foot on a banana peel, no matter how well you do, is what's dissuading a lot of them. And it's not--my concept is what they're saying themselves. And I think that that's very worrisome. Mr. Walberg. Well, it is worrisome. And I guess I can understand that feeling. But, Mr. Chairman, as we--as we hold these hearings, I mean, we're talking about a much broader issue then. We have public servants that are serving at the will of the people expressed through us in establishing departments, in establishing agencies, establishing thrusts are necessary for the ongoing of this government. It is a special duty. They, indeed, could go out in the private sector, some of them, some of them. And I have met some of them that could make a better living. However, they've chosen this service. We need to perform it as honestly, uprightly, effectively, and as low cost as humanly possible and still giving credit where credit is due. And so I don't think it's a selling point to say that GS- 15s, 14s don't want to go in because they don't make any more money at that level when they would have the opportunity to do good public service for the people, establish a pattern, expand the opportunities to impact of this government. And, yes, if we did follow due process, if we did give incentives to continue serving well and also make it very clear that if you don't, it's not automatic that you stay, it might encourage some of these lower level--well, at the top of the pay grade until they go to that SES--encourage them with the fact that I can make an impact. I won't make any more income, maybe, I can make an impact. Having said that, Mr. Chairman, I think there's a problem that goes in attitude as well that responds in action. And I yield back. Ms. Bonosera. May I just say one thing in response? And that is that it isn't just the money. They are concerned, which they have expressed, has to do with they are subject to being geographically reassigned. They are--the younger ones are far more concerned about work/life balance, being available to their families. So the money is just one of the factors. So that there is not a sufficient attraction above and beyond. There is for a good number of them. Mr. Walberg. I understand that only 3 percent--forgive me for breaking in there--but only 3 percent have been reassigned to other agencies. I mean, we are talking pretty good security there, a lot better security than most of us people at this rostrum right now. Mr. Farenthold. Every 2 years, we have a job review. Thank you very much. You know, it is disappointing, in summation, that you've had these scandals specifically at the VA where everybody is looking for our veterans to be taken care of. And hopefully this is exception but not the rule. And we will continue on this committee our diligent oversight work over the entire Federal Government. I would like to thank our witnesses for being here. We were able to wrap this up in time for us to get to votes. We'll let you get back to your day job serving the taxpayers as well. Thank you for your participation, and we're adjourned. [Whereupon, at 10:29 a.m., the subcommittee was adjourned.] APPENDIX ---------- Material Submitted for the Hearing Record [GRAPHIC] [TIFF OMITTED]