Legislative Proposals Related to the Removal of Inspectors General in the 116th Congress

Legislative Proposals Related to the Removal of Inspectors General in the 116th Congress

December 9, 2020
Legislative Proposals Related to the Removal of Inspectors
General in the 116th Congress
The role of inspectors general (IGs) within the federal
Proposals in the 116th Congress
government is an issue of perennial interest to Congress. In
There have been at least nine distinct proposals in the 116th
particular, removal protections for IGs have drawn frequent
Congress to alter the removal procedure for IGs. Where
attention. Proposals to adjust the requirements and
substantially similar legislation was introduced on multiple
procedures for IG removal received increased attention in
occasions, those bills are discussed together. Unless
2020, especially after President Donald Trump removed
otherwise stated, provisions apply to presidentially
two Senate-confirmed IGs and replaced two acting IGs.
appointed and DFE IGs governed by the IG Act.
This In Focus describes the current removal procedure
Inspectors General Independence Act of 2020 (H.R.
under the Inspector General Act (IG Act; 5 U.S.C. Appx.)
6668 and S. 3664)
and then briefly summarizes legislation introduced during
This legislation would allow for removal of IGs only for
the 116th Congress that would change this procedure. While
“permanent incapacity, inefficiency, neglect of duty,
policy experts and others have offered other proposals, this
malfeasance, or conviction of a felony or conduct involving
In Focus does not discuss those proposals.
moral turpitude.” The current 30-day written notice
requirement is also retained by this legislation.
Current Removal Procedure
The removal procedure for presidentially appointed IGs is
The bills would also establish seven-year terms for IGs.
found in Section 3(b) of the IG Act. The section reads:
(Currently IGs have no set terms under the IG Act.)
Individuals would be eligible to serve more than one term,
An Inspector General may be removed from office
and presidentially appointed IGs could hold over in their
by the President. If an Inspector General is removed
positions for up to one year or until a successor is
from office or is transferred to another position or
confirmed, whichever comes first.
location within an establishment, the President shal
communicate in writing the reasons for any such
Inspector General Independence Act (H.R. 6984)
removal or transfer to both Houses of Congress, not
This legislation would establish that IGs may be removed
later than 30 days before the removal or transfer.
only for the following reasons and with documentary
Nothing in this subsection shall prohibit a personnel
support: permanent incapacity, neglect of duty,
action otherwise authorized by law, other than
malfeasance, conviction of a felony or conduct involving
transfer or removal.
moral turpitude, knowing violation of a law or regulation,
gross mismanagement, gross waste of funds, abuse of
For the inspectors general of designated federal entities
authority, and inefficiency.
(DFEs), which are listed in Section 8G(2) of the IG Act, the
same notice rule applies, except that the head of the DFE,
The legislation would explicitly require that the
rather than the President, appoints and removes the IG. For
documentation associated with the cause for removal be
DFEs headed by boards, committees, or commissions,
included in the written notice provided to Congress.
removal requires the written concurrence of two-thirds of
the members. The IG for the U.S. Postal Service may be
Securing Inspector General Independence Act of
removed only with agreement of seven out of nine postal
2020 (S. 3994)
governors and only “for cause,” which is not further
S. 3994 would amend the current 30-day notice provision to
defined.
require that the President or head of a DFE removing an IG
provide a “substantive rationale, including detailed and
The 30-day notice requirement was established under the
case-specific reasons” for that action, including specific
Inspector General Reform Act of 2008 (P.L. 110-409).
information about any “open or completed inquiry” into the
Previously, the President (or head of a DFE) was required
IG that is related to the removal action.
to “communicate the reasons for any [IG] removal to both
Houses of Congress” but not to provide advance notice.
The bill would allow for an IG to be placed on non-duty
status if written notice is provided to Congress 15 days in
A more detailed discussion of the current removal
advance at any time except when the President or DFE has
framework can be found in CRS Legal Sidebar LSB10476,
provided notice that an IG will be removed. The legislation
Presidential Removal of IGs Under the Inspector General
would allow for an IG to be placed on non-duty status with
Act, by Todd Garvey.
concurrent (rather than advance) notice to Congress if it is
determined that the IG’s continued presence in the
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Legislative Proposals Related to the Removal of Inspectors General in the 116th Congr ess
workplace would pose a threat as laid out in Title 5, Section
written notice 30 days before placing an IG on non-duty
6329b(b)(2)(A), of the United States Code.
status. In addition, the bills would require the President, if
he or she fails to name a nominee for an IG position by the
Additionally, S. 3994 would provide that, when an IG
210th day after that position becomes vacant, to provide a
position becomes vacant, either a specified first assistant or
written explanation to Congress providing the reasons a
an individual designated by the President who has served in
nomination has not been made and a target date for that
an IG office for at least 90 of the previous 365 days may
action.
serve as the acting IG.
Heroes Act (H.R. 6800, H.R. 8406, S. 4800)
Coronavirus Oversight and Recovery and Ethics
While the different iterations of the Heroes Act (including
(CORE) Act of 2020 (H.R. 7076 and S. 3855)
H.R. 6800, which was passed by the House on May 15,
2020) are largely focused on the federal government’s
The CORE Act includes a number of provisions related to
response to the COVID-19 pandemic, each version also
IGs. First, it would allow for removal of IGs only for the
following causes: “permanent incapacity, neglect of duty,
includes language related to IG independence. Title I of the
Division titled “Accountability of Government Operations”
malfeasance, conviction of a felony or conduct involving
includes the expanded notice requirements also found in the
moral turpitude, knowing violation of a law, gross
Restoring the Public Trust Act (H.R. 706) and a variation of
mismanagement, gross waste of funds, or abuse of
authority.” Second, it would require the Council of
the “for cause” removal provisions of the Inspector General
Independence Act (H.R. 6984). This language includes the
Inspectors General on Integrity and Efficiency (CIGIE) to
same grounds for removal but does not explicitly require
investigate and report on the removal of an IG.
that the notice to Congress include documentation related to
the grounds for removal.
Third, the CORE Act would provide that if there is a
vacancy in an IG position, if possible, the first assistant
Accountability for Acting Officials Act (H.R. 6689)
shall serve as acting IG. If there is no first assistant, the
This legislation would, among other things, require that, if a
President may select from among certain employees already
presidentially appointed IG position becomes vacant, the
serving in an IG office to serve as acting IG. Fourth, if an
first assistant in that office will serve as the acting IG. If the
IG is removed, then that IG, any member of the staff of that
office has no first assistant then the President may appoint
IG office, or “[a]ny individual harmed by an action of the
an acting IG but only among officials serving in any IG
establishment following the removal of the Inspector
office who “occupy a position at the Senior Executive
General and before the position is filled by an individual
Service level or higher.”
appointed by the President, with the advice and consent of
the Senate,” shall have a cause of action to challenge the
William M. (Mac) Thornberry National Defense
IG’s removal in district court.
Authorization Act for FY2021 (H.R. 6395)

The House version of the FY2021 National Defense
Fifth, the bill would provide for the appointment of a
Authorization Act included a section similar to H.R. 6689
temporary IG by a panel of three IGs named by the CIGIE
that limits those officials who can serve as an acting IG for
chair. This would occur if a presidentially appointed IG
a presidentially appointed position to an identified first
position remains vacant for 210 days or more. A temporary
assistant or to qualifying individuals already serving in an
IG office.
IG may serve until a permanent IG is confirmed by the
Senate, and the President can remove the temporary IG with
Protecting Out Democracy Act (H.R. 8363 and S.
30-day written notice to Congress.
4880)
This legislation includes the expanded notice requirements
Sixth, the bill would require 30-day written notice to
also found in the Restoring the Public Trust Act (H.R. 706)
Congress before the placement of an IG on non-duty status.
and the “for cause” removal provisions of the Inspector
General Independence Act (H.R. 6984). In addition, it
Finally, like the Inspectors General Independence Act of
includes provisions similar to those in the Accountability
2020 (H.R. 6668 and S. 3664), the CORE Act would
for Acting Officials Act (H.R. 6689) defining which
establish seven-year terms for IGs and allow individuals to
officials may serve as acting IGs. Finally, the bill would
serve additional terms.
extend “for cause” removal and notice requirements to the
IGs in the intelligence community.
In addition to presidentially appointed and DFE IGs
covered by the IG Act, the CORE Act would apply to the
Demanding Unconditional Accountability under
IGs for the Intelligence Community, Central Intelligence
the Law for Inspectors General (DUAL IG) Act
Agency, Government Accountability Office, U.S. Capitol
(H.R. 8047)
Police, Architect of the Capitol, Library of Congress,
The DUAL IG Act would require that, in the event that a
Government Publishing Office, and the special inspectors
presidentially appointed IG position is vacant, the acting IG
general for the Troubled Asset Relief Program and for
performing the duties of the IG “may not perform the
Afghanistan Reconstruction.
functions and duties of any other position with the
Government.”
Restoring the Public Trust Act (H.R. 706) and the
Inspector General Protection Act (H.R. 1847)
Ben Wilhelm, Analyst in Government Organization and
Title III of H.R. 706 and H.R. 1847 include provisions that
Management
would require the President or the head of a DFE to provide
IF11698
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Legislative Proposals Related to the Removal of Inspectors General in the 116th Congress

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