U.S. Merit Systems Protection BoardOffice of the Clerk of the Board

1615 MStreet, NW. 5'" FloorWashington, DC 20419

Phone: 202 653 7200. Fax: 202 653 7130, E-Mail: MSPB@MSPB.gov

Clerk of the Board

July 16, 2014

Mr. David Pardo

P.O. Box 30806

Albuquerque, NM 87190-0806

FOIA Tracking No. MSPB-OCB-2014-000200

Dear Mr. Pardo:

This is in response to your Freedom of Information Act (FOIA) request(MSPB-OCB-2014-000200) dated June 14, 2014. You request the following:

"...any records governed by 5 U.S.C. § 1204(1), related to MSPB's duty tosubmit 'any legislative recommendations of the Board relating to any of itsfunctions' to the President and/or the Congress since January 1, 2012."

Your request was processed in accordance with the Merit Systems ProtectionBoard's (MSPB) regulations at 5 CFR Part 1204 that implement the FOIA.

We conducted a search of our records and found information responsive toyour request. We are releasing to you the enclosed documents in their entirety.

You have the right to appeal this determination. Should you decide to do so,address and mail your appeal to the Chairman, Merit Systems Protection Board,1615 M Street, NW, Washington, DC 20419. Your appeal should be identified asa "FOIA Appeal" on both the letter and the envelope. Your appeal should includea copy of your original request, a copy of this letter and your justification forappealing this decision. You can send your appeal by email or fax atfoiahq@mspb.gov and 202-653-7130, respectively. Your must file your appealwithin 10 working days from the date of this letter.

mkyl R. AaronDirector, Infonnation Services Team

Enclosures: (1) MSPB Reauthorization Act of 2014.(2) Section-by-Section Analysis of the MSPB Reauthorization Act of

2014.

(3) Justification for Legislative Proposals.

ENCLOSURES

MERIT SYSTEMS PROTECTION BOARD REAUTHORIZATION ACT OF 2014

A BILL

To amend title5, United StatesCode, to authorize appropriations forthe Merit Systems

Protection Board, and for other purposes

Be it enactedby the Senateand theHouseofRepresentatives ofthe United Statesof

America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Merit Systems Protection Board

Reauthorization Act of 2014."

SECTION 2. AUTHORIZATION OF APPROPRIATIONS.

Section 8(a) (1) of the Whistleblower Protection Act of 1989 (5 U.S.C. §

5509 note, Pub. L. 101-12, April 10, 1989, 103 Stat. 34, as amended. Pub. L.

103-424, Section 1, October 29, 1994, 108 Stat. 4361, and Pub. L. 104-208, Div.

A, Title I, § 101(f) [Title VI, §§ 641, 642], September 30, 1996, 110 Stat. 3009-

365) is amended by striking the words "for each of fiscal years 2003, 2004,

2005, 2006 and 2007" and inserting in lieu thereof "for each of fiscal years 2015,

2016, 2017, 2018, and 2019."

SECTIONS. ORDER OF SUCCESSION.

Section 1203 of title 5, United States Code, is amended —

(1) by redesignating said section as "Chairman, Vice Chairman,

Order of Succession;"

(2) by adding at the end of subsection (c) new subsections (d), (e),

(f) and (g) to read as follows:

^/^cUscure CO

"(d) In the event that no member has been designated to serve as

Chairman or Vice Chairman or is eligible to serve in either position by operation

of subsections (b) or (c) of this section, the member who is an adherent of the

same political party as the President shall perform the duties and functions of the

Chairman;"

"(e) If the only members currently in office are adherents of the same

political party as the President and neither of the members has been designated to

serve as Chairman or Vice Chairman or is eligible to serve in either position by

operation of subsections (b) or (c) of this section, the member who was first

appointed to the Board shall perform the duties and functions of the Chairman;"

"(f) If neither of the members currently in office are adherents of the same

political party as the President and neither has been designated to serve as

Chairman or Vice Chairman or is eligible to serve in either position by operation

of subsections (b) or (c) of this section, the member who was first appointed to

the Board shall perform the duties and functions of the Chairman;"

"(g) The person who performs the duties and functions of the Chairman,

as provided in subsections (d) or (e) of this section, shall do so only until such

time as the President makes an appointment or designation as described in

subsection (a) or (b); the President makes an appointment in accordance with

Article II, Section 2 of the U.S. Constitution; or the member's term (including

the holdover period) expires, whichever occurs first."

SECTION 4. CLARIFICATION OF AUTHORITY TO COLLECT

INFORMATION FOR MERIT SYSTEMS STUDIES

Section 1204 of title 5, United States Code, is amended -

(1) by amending subsection (e)(3) by inserting after the last

sentence the following:

"The Office of Personnel Management and other agencies shall provide

assistance to the Board to facilitate its efforts to conduct surveys of Federal

employees. The Office of Petsonnel Management and other agencies shall

further provide to the Board, upon request, records and information concerning

applicants for Federal employment."

SECTION 5. POWERS AND FUNCTIONS OF THE MERIT

SYSTEMS PROTECTION BOARD CHAIRMAN - TECHNICAL

CORRECTIONS.

Section 1204 of title 5, United States Code, is further amended —

(1) by amending subsection (g) to read as follows:

"(g) The Chairman of the Board may delegate to any employee of theBoard authority to perform any administrative functions under this title";

and

(2) by amending subsection (k) to read as follows:

"(k) The Chairman of the Board shall prepare and submit to the

President, and, at the same time, to the appropriate committees of

Congress, an annual budget ofthe expenses and other items relating to theBoard which shall, as revised, be included as a separate item in the budgetrequired to be transmitted to the Congress under section 1105 of title 31."

SECTION 6. EFFECTIVE DATE

Unless indicated otherwise, the amendments made herein shall take effect uponenactment.

JUSTIFICATIONS FOR LEGISLATIVE PROPOSALS

To Accompany The

MERIT SYSTEMS PROTECTION BOARD REAUTHORIZATION ACT OF 2014

The current authorization ofAe U.S. Merit Systems Protection Board expired onSeptember 30,2007. In addition to reauthorization of appropriations, weare alsorequesting the enactment of three legislative proposals. These proposals seek: 1) anorderofsuccession for executive leadership ofthe agency; 2) clarification ofthe responsibilityofthe Office ofPersonnel Management and other Federal agencies to cooperate with theBoard in its efforts to fulfill its statutory duty toconduct special studies; and3) two technical corrections to the Board's authorizing statute that clarify the Chainnan'sauthority to make administrative decisions regarding the management ofthe agency. Webelieve that these proposals are enhancements necessary for theeffective and efficientoperation ofthe agency.

ORDER OF SUCCESSION

The first proposal seeks to amend section 1203 ofTitle 5 to provide for an order ofsuccession for the executive leadership of the Board. Two incidents in the Board'shistory have highlighted the necessity for these statutory provisions. Pursuant to 5 U.S.C.§ 1203, the Chairman serves as the chief executive and administrative officer of theagency. When the office ofChairman isvacant, the Vice Chairman serves as ActingChairman. When the offices ofChairman and Vice Chairman are both vacant, theremaining Member becomes Acting Chairman. In twoinstances since theBoard waslastauthorized, theagency was faced with thepossibility ofa vacuum in itschiefexecutiveleadership. Inone instance, the agency was on the brink ofhaving no Members atall.

In the first instance, the Board entered fiscal year 2002 atfull strength, with itsmembership consisting ofaChairman, Vice Chairman, and Member. The expiration oftherecess appointment of the ViceChairman in December 2001 lefttheBoard withonevacancy. Because the recess appointment ofthe Chairman also expired inDecember2001, the incumbent of the Chairman's position reverted to the position ofBoardmember. Thus, two Members remained on the Board; however, neither held the positionofChairman orVice Chairman. Toprovide for continuing executive and administrativeleadership, the two Members agreed to ashared-leadership arrangement. While majoradministrative decisions—such as filling the vacant Senior Executive Service (SES)positions—^were deferred, the two Board Meihbers made all other administrativedecisions jointly until the President designated one member tobeVice Chair on February7,2002.

OnFebruary 7,2002, President Bushdesignated oneof theMembers to serve asViceChairmanofthe Board and annoimced his intentionto nominate this Memberto beChairman of theBoard. With the designation ofVice Chairman, the Member became the

Acting Chaimian. Subsequently, on August 6,2002, she received a recess appointmentby the President to the position ofChairman. For a period ofmore that 6 months, theBoard was comprised of only a Chairman and a Member.

The Member retired from the Board on March 1,2003. From March 1,2003 until April23,2003, the Chairman was the only Member of the Board. No Board decisions coidd beissued during this 6-week time period because there was no quorum (at least two out ofthree members).

On April 23,2003, President Bush made a recess appointment ofa new Member to theBoard. On December 10,2003, the new Member became Acting Chairman ofthe MSPBwhen President Bush designated him to be Vice Chairman, again under a recessappointment. The former Chairman reverted to Member ofthe Board and servedt^ou^out the rest ofthe fiscal year 2004 pursuant to the holdover provision oftheBoard's governing statute.^ For the next 18 months, theBoard fimctioned with less thanits frill complement ofmembers, and without Senate confirmation ofits executiveleadership.

Because the Acting Chairman was serving under a recess appointment, it was during thisperiod (between October 1,2004 and November 21,2004) that the Board was faced withthe possibilityofhaving no sittingMembers ofthe Board. In the absenceofactionby theSenate, the Acting Chairman's recess appointment would have expired with theadjournment ofthe 107^ Congress (which was scheduled to occur inDecember 2004).The adjournment ofCongress would have also triggered the expiration ofhis nominationand that of the nominee for Board Member, leaving the one member who was serving aholdover period"that would expire on March 1,2005. Given the fact that the Presidentialelection was held in November 2004, it was unlikely that a new Presidential nominee orrecess appointee would have been in place by March 1,2005. While the Senate did actto confirmthe nomination ofthe Acting Chair to be Chairmanand the nomination ofanew member on November 21,2004, the uncertainty ofexecutive leadership for the"agency in such circumstances calls for an effective statutory solution.

We believe that the proposed legislationrecognizes the Presidentialprerogative to controlkey appointments in the Executive branch while preserving the continuity ofagencyoperations in the absence of the affirmative exercise of such prerogatives and/orconfirmation ofPresidential nominees by the Senate.

CLARIFICATION OF THE BOARD'S AUTHORITY TO COLLECT

INFORMATION INCIDENT TO ITS STUDIES FUNCTION

The second proposal concerns the Board's statutory mission to conduct special studiesrelating to the civil service and to other merit systems in the executive branch. Althoughmost agencies cooperate with the Board's efforts to conduct employee surveys inconnection with its studies function. The Board encoimters resistance from some agencies

' This member's term expired onMarch 1,2004.

on occasion. This problem would likely be reduced or eliminated ifthe Board hadexpress statutory authority to conduct surveys of federal employees.

The merit systems principles and the prohibitedpersonnel practices cover not just currentemployees, but applicants for federal employment as well. Express authority for theBoard to obtain information about applicants from OPM and other executive branchagencies would enhance the Board's studies function.

TECHNICAL CORRECTIONS • AUTHORITIES OF THE CHAIRMAN OF THEBOARD

The third proposal concerns two provisions of the Board's authorizing statutethat relateto thepowers and duties of theChairman of the_Merit Systems Protectioi^Board.Pursuant to 5 U.S.C. § 1203, the Chairmanofthe Merit SystemsProtection Board servesas the chiefexecutive andadministrative officer ofthe agency. As such, the incumbentof thisposition is vested with theauthority to makeall decisions relating theadministration andmanagement of theagency's operations. Forexample. Section1204(j) specifies thattheChairman has theauthority to exercise independent hiringauthority on behalfof the Board.

Sections 1204(g) and 1204(k), appear tobestow such management authority upon theBoard, collectively, rather thansolely upon the Chairman. Section 1204 (g)reads: "TheBoard may delegate the performance ofany ofits administrative functions under this titleto any employee of the Board." Section 1204(k) reads: "TheBoard shall prepare andsubmit to thePresident, and, at the same time, to theappropriate committees of Congress,an annual budget ofthe expenses and other items relating to theBoard which shall, asrevised, be and included as a separate itemin the budgetrequired to be transmitted to theCongress under section 1105oftitle 31." Both provisions involve administrativeresponsibilities that are within the sole purview ofthe Chairman, as chief executive andadministrative officerof the agency pursuant to 5 U.S.C. § 1203. Thus, the amendmentscontained in Section 5 of the legislativeproposal which substitute the words "theChairman oftheBoard" for *the Board" seek to correct and clarify any ambiguity thatmay exist in the Chairman's authority as described in Section 1204.

SECTION-BY-SECTION ANALYSIS

OF THE

MERIT SYSTEMS PROTECTION BOARD

REAUTHORIZATION ACT OF 2014

Sec. 1 Short Title

Provides that this Act may be cited as the "Merit Systems Protection BoardReauthorization Act of 2014."

Sec. 2 Authorization of Appropriations

Section 2 authorizes appropriations to the Board for fiscal years 2015,2016,2017,2018 and 2019.

Sec. 3 Order of Succession

This section provides for the continuity of senior executive leadership ofthe Board,

Section 3(1) changes the title of section 1203 to "Chairman, ViceChairman, Order of Succession;"

Section 3(2) designates the person who has authority to manage the agencywhen the Board membership is comprised of two or more members but nomember has been designated to serve as Chairman or Vice Chairman.

This section also describes the circumstances for the termination of suchtemporary authority.

Sec. 4 Clarification of Authority to Collect Information for MeritSystems Studies

This section clarifies the responsibility of the Office of Personnel Managementand other Federal agencies to cooperate with the Merit Systems Protection Boardin its efforts to fulfill its statutory duty to conduct special studies relating to thecivil service and to other merit systems in the executive branch.

Sec. 5 Powers and Functions of the Merit Systems ProtectionBoard Chairman - Technical Corrections

This section clarifies the Chairman's authority to make certain administrativedecisions and take certain administrative actions consistent with the Chairman's

statutory role as chief executive and jadministrative officer of the agency.

Sec. 6 Effective Date

This section establishes the effective date of these amendments.