Senate HSGAC Advances MSPB Nominees, Cybersecurity Bills, to Full Senate
On October 6, 2021, the Senate Committee on Homeland Security and Governmental Affairs (HSGAC) approved three nominees to restore a quorum on the Merit Systems Protection Board (MSPB). The decision to confirm the Biden Administration’s nominees, Cathy Ann Harris, Tristan Leavitt, and Raymond Limon, now advances to the full Senate.
The MSPB is an executive branch quasi-judicial agency that’s statutorily bipartisan. The board adjudicates federal employees appeals, and retirement decisions, and produces studies on the federal merit system and human capital management issues, and reviews significant OPM actions.
“The MSPB protects the merit system principles and promotes a highly qualified, diverse federal workforce that is fairly and effectively managed and that provides excellent service to the American people,” stated Senator Gary Peters (D-MI), Chairman of the committee.
The “MSPB faces its most dire crisis since it was established,” stated the Merit Systems Protection Board Congressional Budget Justification for Fiscal Year 2022. The governing board has lacked a quorum since 2017 and was left completely vacant in early 2019. If approved, the new board faces a backlog of over 3,000 appeals from administrative judge decisions. Though, the number cases potentially reaching the board is expected to rise with the COVID-19 vaccine mandate, telework eligibility, and return to office protocols.
The committee’s vote followed a hearing on September 22, 2021. Leavitt and Limon were approved unanimously by voice vote; however, Harris’ advancement was a tighter seven to six votes along party lines. Republican lawmakers voiced concern over previous tweets by Harris that allegedly reveal a partisan position.
At the hearing, lawmakers dedicated time to the MSPB’s potential response to the impending wave of COVID-19 related cases as the vaccine deadline for federal workers draws near. All nominees stressed the importance of not deciding a case before hearing it.
“There is two ways that the board would be able to address these issues. One is the board has the authority to review OPM rules and regulations to ensure conformance that they don't commit a prohibited personnel practice. So that would be one way, the board with OPM presumably will develop rules and regulations regarding this issue. I am sure that something the board would review at that time and be able to look down list of prohibited personnel practices. Is it a problem? And if so, we take action,” stated Harris. “The other way is disciplinary cases come before the board, if someone was eventually disciplined for not complying with whatever rules and regulations are eventually promulgated, the way the board looks at it in addition to seeing whether the person committed misconduct. We get to look at what is at well known as the Douglas factors. Either mitigating or aggravating factors that require the penalty to be imposed or the penalty to be mitigated.”
Senator Portman (R-OH), Ranking Member of the committee, further questioned the nominees on the importance of whistleblower protection. Nearly a quarter of backlogged cases are whistleblower retaliation, according to a Freedom of Information Act request.
“Actively regularly touting the importance of whistleblowers is really key to helping federal employees and federal managers know, OK, people are serious about [respecting whistleblower claims and creating open environments for whistleblowers],” stated Leavitt, “Certainly as a member and for any member of the board that… taking those laws applying them fairly and just making sure that the tools are there to protect whistleblowers are used fairly. I think is really an important role that the board can fulfill to help send that message across government help create a culture.”
The Senate Homeland Security and Governmental Affairs Committee also advanced bipartisan legislation – the Cyber Incident Reporting Act – that requires the Cybersecurity and Infrastructure Security Agency (CISA) receive reports of a cyberattack from critical infrastructure owners and operators within 72 hours. The Federal Information Security Modernization Act of 2021 would replace the act of the same name from 2014, and supports the creation of effective federal cybersecurity policies and collaboration between Office of Management and Budget (OMB) and CISA to allocate resources.
