II 118TH CONGRESS 1ST SESSION S. 1629 To amend title 5, United States Code, to increase the accountability of the Office of Special Counsel in enforcing certain provisions of that title vigorously, consistently, and without regard to the political affili- ation, career status, or personal characteristics of individuals subject to those provisions, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 16, 2023 Mr. LUJA´N introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend title 5, United States Code, to increase the ac- countability of the Office of Special Counsel in enforcing certain provisions of that title vigorously, consistently, and without regard to the political affiliation, career status, or personal characteristics of individuals subject to those provisions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Hatch Act Enforce- 4 ment Transparency and Accountability Act’’. 5 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1629 IS SEC. 2. ADDITION OF DEFINITIONS. 1 (a) IN GENERAL.—Subchapter II of chapter 12 of 2 title 5, United States Code, is amended by adding at the 3 end the following: 4 ‘‘§ 1219a. Definitions 5 ‘‘In this subchapter: 6 ‘‘(1) CAREER EMPLOYEE.—The term ‘career 7 employee’ means an individual who is— 8 ‘‘(A) an employee, as that term is defined 9 in section 7322; and 10 ‘‘(B) not a noncareer employee. 11 ‘‘(2) COVERED ALLEGATION.—The term ‘cov- 12 ered allegation’ means an allegation concerning po- 13 litical activity prohibited under subchapter III of 14 chapter 73. 15 ‘‘(3) NONCAREER EMPLOYEE.—The term ‘non- 16 career employee’ means an individual who is— 17 ‘‘(A) an employee, as defined in section 18 2105, serving in a position in the executive 19 branch; and 20 ‘‘(B)(i) serving in a position to which the 21 President appointed the individual (without re- 22 gard to whether the advice and consent of the 23 Senate was required with respect to that ap- 24 pointment), other than an individual who is— 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1629 IS ‘‘(I) a member of a uniformed service, 1 as that term is defined in section 210(m) 2 of the Social Security Act (42 U.S.C. 3 410(m)); or 4 ‘‘(II) a member of the Foreign Service 5 serving under a career appointment, as de- 6 scribed in section 301 of the Foreign Serv- 7 ice Act of 1980 (22 U.S.C. 3941); 8 ‘‘(ii) a noncareer appointee, as that term is 9 defined in section 3132(a); 10 ‘‘(iii) serving in a position in a Federal ex- 11 ecutive system that is comparable to the Senior 12 Executive Service, the appointment to which is 13 not made through merit-based procedures, such 14 as a position in the Transportation Security 15 Executive Service; or 16 ‘‘(iv) serving in a position with respect to 17 which a determination has been made under 18 section 7511(b)(2).’’. 19 (b) TECHNICAL AND CONFORMING AMENDMENT.— 20 The table of sections for subchapter II of chapter 12 of 21 title 5, United States Code, is amended by adding at the 22 end the following: 23 ‘‘1219a. Definitions.’’. VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6211 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1629 IS SEC. 3. NOTIFYING CONGRESS IN THE EVENT OF A DECI- 1 SION NOT TO INVESTIGATE A NONCAREER 2 EMPLOYEE. 3 Section 1217 of title 5, United States Code, is 4 amended by adding at the end the following: 5 ‘‘(c) NOTIFICATION OF CONGRESS IN THE EVENT OF 6 CERTAIN DECLINATIONS.— 7 ‘‘(1) IN GENERAL.—Not later than 180 days 8 after the date of enactment of this subsection, and 9 once every 180 days thereafter, the Special Counsel 10 shall submit to the Chair and Ranking Member of 11 each of the Committee on Homeland Security and 12 Governmental Affairs of the Senate and the Com- 13 mittee on Oversight and Reform of the House of 14 Representatives a written report that contains, for 15 the period covered by the report, the number of com- 16 plaints received by the Special Counsel that the Spe- 17 cial Counsel referred for disciplinary action. 18 ‘‘(2) CONTENTS.—Each report required under 19 paragraph (1) shall— 20 ‘‘(A) include— 21 ‘‘(i) a copy of the applicable com- 22 plaint; 23 ‘‘(ii) the name and position of the em- 24 ployee who is the subject of the applicable 25 complaint; and 26 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1629 IS ‘‘(B) be organized to indicate whether the 1 employee who is the subject of each complaint 2 contained in the report is a career employee or 3 a noncareer employee.’’. 4 SEC. 4. REPORTING TO CONGRESS. 5 (a) IN GENERAL.—Section 1218 of title 5, United 6 States Code, is amended— 7 (1) in the section heading, by striking ‘‘re- 8 port’’ and inserting ‘‘reports’’; 9 (2) in the matter preceding paragraph (1), by 10 striking ‘‘The Special’’ and inserting the following: 11 ‘‘(a) IN GENERAL.—The Special’’; and 12 (3) by adding at the end the following: 13 ‘‘(b) REPORT REGARDING ALLEGATIONS AGAINST 14 NONCAREER EMPLOYEES.—In addition to each report re- 15 quired under subsection (a), the Special Counsel shall sub- 16 mit to the Chair and Ranking Member of each committee 17 of jurisdiction in Congress, on an annual basis, a report 18 regarding the activities of the Special Counsel with respect 19 to covered allegations against noncareer employees and 20 former noncareer employees, which shall include— 21 ‘‘(1) for the year preceding the submission of 22 the report, the number of such covered allegations 23 received by the Special Counsel; 24 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1629 IS ‘‘(2) the number of such covered allegations 1 that have resulted in an investigation conducted by 2 the Special Counsel, whether the investigation was 3 initiated during the year covered by the report or 4 thereafter; and 5 ‘‘(3) in a confidential addendum submitted to 6 the Chair and Ranking Member of each of the Com- 7 mittee on Homeland Security and Governmental Af- 8 fairs of the Senate and the Committee on Oversight 9 and Reform of the House of Representatives— 10 ‘‘(A) with respect to each such covered al- 11 legation not investigated, the name and position 12 of the noncareer employee (or former noncareer 13 employee) who was the subject of the covered 14 allegation; and 15 ‘‘(B) a description of each such covered al- 16 legation for which processing of the covered al- 17 legation ceased during the year covered by the 18 report, without regard to whether the covered 19 allegation was received during the year covered 20 by the report or earlier, which shall include— 21 ‘‘(i) a description of the outcome of 22 the covered allegation; and 23 ‘‘(ii) in the case of a covered allega- 24 tion against a noncareer employee who is 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1629 IS not serving in a position with respect to 1 which appointment by the President, by 2 and with the advice and consent of the 3 Senate, is required (or against a former 4 noncareer employee who was not serving in 5 such a position, as of the date on which 6 the actions that are the subject of the cov- 7 ered allegation occurred), a statement as 8 to whether— 9 ‘‘(I) the Special Counsel, under 10 section 1215(a), presented a com- 11 plaint to the Merit Systems Protection 12 Board against the noncareer employee 13 (or former noncareer employee) con- 14 cerning the actions that are the sub- 15 ject of the covered allegation; and 16 ‘‘(II) any civil penalty assessed 17 by the Merit Systems Protection 18 Board under section 7326 with re- 19 spect to the covered allegation has 20 been collected in full.’’. 21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 22 The table of sections for subchapter II of chapter 12 of 23 title 5, United States Code, is amended by striking the 24 item relating to section 1218 and inserting the following: 25 ‘‘1218. Annual reports.’’. VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6211 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1629 IS SEC. 5. PUBLIC TRANSPARENCY IN HATCH ACT ENFORCE- 1 MENT. 2 Section 1219 of title 5, United States Code, is 3 amended— 4 (1) in subsection (a)— 5 (A) in paragraph (3), by striking ‘‘and’’ at 6 the end; 7 (B) in paragraph (4), by striking the pe- 8 riod at the end and inserting ‘‘; and’’; and 9 (C) by adding at the end the following: 10 ‘‘(5) a detailed written explanation of the com- 11 plete basis for each decision of the Special Counsel 12 not to present, under section 1215(a), a complaint 13 to the Merit Systems Protection Board against any 14 noncareer employee determined by the Special Coun- 15 sel to have violated subchapter III of chapter 73, ex- 16 cept that this paragraph shall not apply with respect 17 to a noncareer employee who is serving in a position 18 for which nomination by the President, by and with 19 the advice and consent of the Senate, is required 20 (unless such a noncareer employee is serving in a 21 position in the Foreign Service).’’; 22 (2) by redesignating subsection (b) as sub- 23 section (c); and 24 (3) by inserting after subsection (a) the fol- 25 lowing: 26 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1629 IS ‘‘(b) PUBLICATION OF DEMOGRAPHIC STATISTICS 1 REGARDING CERTAIN ENFORCEMENT.— 2 ‘‘(1) IN GENERAL.—The Special Counsel shall 3 track, publish, and keep current on the official 4 website of the Office of Special Counsel the following 5 information, which shall remain on that website for 6 a period of not less than 10 fiscal years, beginning 7 with the fiscal year to which the information per- 8 tains: 9 ‘‘(A) On an ongoing basis, the following 10 anonymized information pertaining to covered 11 allegations against career employees, which 12 shall be organized by fiscal year: 13 ‘‘(i) The number of career employees 14 who were the subject of covered allegations 15 received by the Special Counsel during the 16 applicable fiscal year. 17 ‘‘(ii) With respect to the career em- 18 ployees identified under clause (i)— 19 ‘‘(I) the number of those career 20 employees who the Special Counsel in- 21 vestigated, without regard to whether 22 the investigation occurred during the 23 fiscal year in which the Special Coun- 24 sel received the initial covered allega- 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1629 IS tion with respect to such a career em- 1 ployee or during a subsequent fiscal 2 year; and 3 ‘‘(II) the number of those career 4 employees who were the subject of a 5 complaint presented to the Special 6 Counsel with the Merit Systems Pro- 7 tection Board with respect to the ap- 8 plicable covered allegation, without re- 9 gard to whether the Special Counsel 10 presented such a complaint during the 11 fiscal year in which the Special Coun- 12 sel received the initial covered allega- 13 tion with respect to such a career em- 14 ployee or during a subsequent fiscal 15 year. 16 ‘‘(iii) For clauses (i) and (ii), demo- 17 graphic information pertaining to the race, 18 sex, ethnicity, national origin, and dis- 19 ability status of the applicable career em- 20 ployees. 21 ‘‘(B) On an ongoing basis, the following 22 anonymized information pertaining to covered 23 allegations against noncareer employees, which 24 shall be organized by fiscal year: 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1629 IS ‘‘(i) The number of noncareer employ- 1 ees who were the subject of covered allega- 2 tions received by the Special Counsel dur- 3 ing the applicable fiscal year. 4 ‘‘(ii) With respect to the noncareer 5 employees identified under clause (i)— 6 ‘‘(I) the number of those non- 7 career employees who the Special 8 Counsel investigated, without regard 9 to whether the investigation occurred 10 during the fiscal year in which the 11 Special Counsel received the initial 12 covered allegation with respect to such 13 a noncareer employee or during a sub- 14 sequent fiscal year; and 15 ‘‘(II) the number of those non- 16 career employees who were the subject 17 of a complaint presented to the Spe- 18 cial Counsel with the Merit Systems 19 Protection Board with respect to the 20 applicable covered allegation, without 21 regard to whether the Special Counsel 22 presented such a complaint during the 23 fiscal year in which the Special Coun- 24 sel received the initial covered allega- 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1629.IS S1629 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1629 IS tion with respect to such a noncareer 1 employee or during a subsequent fis- 2 cal year. 3 ‘‘(iii) For clauses (i) and (ii), demo- 4 graphic information pertaining to the race, 5 sex, ethnicity, national origin, and dis- 6 ability status of the applicable noncareer 7 employees. 8 ‘‘(2) DEMOGRAPHIC INFORMATION.—The Di- 9 rector of the Office of Personnel Management, the 10 head of the agency employing an individual who is 11 the subject of a complaint filed with the Special 12 Counsel, and, as applicable, the White House Presi- 13 dential Personnel Office shall, upon request, provide 14 the Special Counsel with information pertaining to 15 the race, sex, ethnicity, national origin, disability 16 status, and status as a career employee or noncareer 17 employee of that individual, if that information has 18 already been collected in connection with the Federal 19 employment or former Federal employment of that 20 individual.’’. 21 SEC. 6. SEVERABILITY. 22 If any provision of this Act, or of any amendment 23 made by this Act, or the application of any provision of 24 this Act, or of any amendment made by this Act, to any 25 VerDate Sep 11 2014 03:04 May 26, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\ [Text truncated for display. Full text available on Congress.gov.]