5 U.S.C. app. § 3

Current through P.L. 116-138 (04/10/2020)
Section 3 - Appointment of Inspector General; supervision; removal; political activities; appointment of Assistant Inspector General for Auditing and Assistant Inspector General for Investigations
(a) There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.
(b) An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.
(c) For the purposes of section 7324 of title 5, United States Code, no Inspector General shall be considered to be an employee who determines policies to be pursued by the United States in the nationwide administration of Federal laws.
(d)
(1) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service-
(A) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations of the establishment;
(B) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations; and
(C) designate a Whistleblower Protection Coordinator who shall-
(i) educate agency employees-
(I) about prohibitions against retaliation for protected disclosures; and
(II) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures, including-
(aa) the means by which employees may seek review of any allegation of reprisal, including the roles of the Office of the Inspector General, the Office of Special Counsel, the Merit Systems Protection Board, and any other relevant entities; and
(bb) general information about the timeliness of such cases, the availability of any alternative dispute mechanisms, and avenues for potential relief.1
(ii) assist the Inspector General in promoting the timely and appropriate handling and consideration of protected disclosures and allegations of reprisal, to the extent practicable, by the Inspector General; and
(iii) assist the Inspector General in facilitating communication and coordination with the Special Counsel, the Council of the Inspectors General on Integrity and Efficiency, the establishment, Congress, and any other relevant entity regarding the timely and appropriate handling and consideration of protected disclosures, allegations of reprisal, and general matters regarding the implementation and administration of whistleblower protection laws, rules, and regulations.
(2) The Whistleblower Protection Coordinator shall not act as a legal representative, agent, or advocate of the employee or former employee.
(3) The Whistleblower Protection Coordinator shall have direct access to the Inspector General as needed to accomplish the requirements of this subsection.
(4) For the purposes of this section, the requirement of the designation of a Whistleblower Protection Ombudsman 2 under paragraph (1)(C) shall not apply to-
(A) any agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 401a(4) ) [ 50 U.S.C. 3003(4) ]); or
(B) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counter intelligence activities.
(e) The annual rate of basic pay for an Inspector General (as defined under section 12(3)) shall be the rate payable for level III of the Executive Schedule under section 5314 of title 5, United States Code, plus 3 percent.
(f) An Inspector General (as defined under section 8G(a)(6) or 12(3)) may not receive any cash award or cash bonus, including any cash award under chapter 45 of title 5, United States Code.
(g) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service, obtain legal advice from a counsel either reporting directly to the Inspector General or another Inspector General.

1 So in original. The period probably should be a semicolon.

2 So in original. Probably should be "Coordinator".

5 APPENDIX U.S.C. § 3

Pub. L. 95-452, §3, Oct. 12, 1978, 92 Stat. 1101; Pub. L. 110-409, §§3(a), Oct. 14, 2008, 4, Oct. 14, 2008, 122 Stat. 4302, 4305; Pub. L. 112-199, title I, §117(a), Nov. 27, 2012, 126 Stat. 1474; Pub. L. 114-317, §7(d)(3)(A), Dec. 16, 2016, 130 Stat. 1606; Pub. L. 115-192, §2(a), June 25, 2018, 132 Stat. 1502.

AMENDMENTS 2018-Subsec. (d)(1)(C). Pub. L. 115-192, §2(a)(1)(B), substituted "Coordinator who shall-" for "Ombudsman who shall educate agency employees-" in introductory provisions.Subsec. (d)(1)(C)(i). Pub. L. 115-192, §2(a)(1)(B), inserted cl. (i) designation and introductory provisions. Former cl. (i) redesignated subcl. (I) of cl. (i).Subsec. (d)(1)(C)(i)(I). Pub. L. 115-192, §2(a)(1)(A), (C), redesignated cl. (i) as subcl. (I) of cl. (i) and substituted "against retaliation" for "on retaliation".Subsec. (d)(1)(C)(i)(II). Pub. L. 115-192, §2(a)(1)(A), (D), redesignated cl. (ii) as subcl. (II) of cl. (i), substituted ", including-" for period at end, and added items (aa) and (bb).Subsec. (d)(1)(C)(ii), (iii). Pub. L. 115-192, §2(a)(1)(E), added cls. (ii) and (iii). Former cl. (ii) redesignated subcl. (II) of cl. (i).Subsec. (d)(2). Pub. L. 115-192, §2(a)(2), substituted "Coordinator" for "Ombudsman".Subsec. (d)(3), (4). Pub. L. 115-192, §2(a)(3), (4), added par. (3) and redesignated former par. (3) as (4).2016-Subsec. (a). Pub. L. 114-317 substituted "subpoena" for "subpena".2012-Subsec. (d). Pub. L. 112-199 added subsec. (d) and struck out former subsec. (d) which read as follows: "Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service-"(1) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations of the establishment, and"(2) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations."2008-Subsec. (b). Pub. L. 110-409, §3(a), substituted "If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal." for "The President shall communicate the reasons for any such removal to both Houses of Congress."Subsec. (e). Pub. L. 110-409, §4(a)(1), added subsec. (e).Subsec. (f). Pub. L. 110-409, §5, added subsec. (f).Subsec. (g). Pub. L. 110-409, §6(a), added subsec. (g).

EFFECTIVE AND TERMINATION DATES OF 2012 AMENDMENT Pub. L. 112-199, title I, §117(c), Nov. 27, 2012, 126 Stat. 1475, which terminated the amendments made to this section and section 8D of Pub. L. 95-452 by section 117 of Pub. L. 112-199 5 years after Nov. 27, 2012, and revived the text as it read on the day before Nov. 27, 2012, was repealed by Pub. L. 115-192, §2(d), June 25, 2018, 132 Stat. 1503, effective Nov. 26, 2017.Amendment by Pub. L. 112-199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112-199 set out as an Effective Date of 2012 Amendment note under section 1204 of this title.

CONSTRUCTION Pub. L. 110-409, §6(c), Oct. 14, 2008, 122 Stat. 4305, provided that: "Nothing in the amendments made by this section [amending this section and section 8G of Pub. L. 95-452 set out in this Appendix] shall be construed to alter the duties and responsibilities of the counsel for any establishment or designated Federal entity, except for the availability of counsel as provided under sections 3(g) and 8G(g) of the Inspector General Act of 1978 (5 U.S.C. App.) (as amended by this section). The Counsel to the Inspector General shall perform such functions as the Inspector General may prescribe."

TRANSITION RULE RELATING TO INSPECTORS GENERAL OF THE FEDERAL COMMUNICATIONS COMMISSION Pub. L. 115-141, div. P, title V, §501(b), Mar. 23, 2018, 132 Stat. 1090, provided that: "An individual serving as Inspector General of the Commission [Federal Communications Commission] on the date of the enactment of this Act [Mar. 23, 2018] pursuant to an appointment made under section 8G of the Inspector General Act of 1978 (5 U.S.C. App.)-"(1) may continue so serving until the President makes an appointment under section 3(a) of such Act [subsec. (a) of this section] with respect to the Commission consistent with the amendments made by subsection (a); and"(2) shall, while serving under paragraph (1), remain subject to the provisions of section 8G of such Act which, immediately before the date of the enactment of this Act, applied with respect to the Inspector General of the Commission and suffer no reduction in pay."

PAY OF INSPECTORS GENERAL Pub. L. 110-409, §4(a)(3), Oct. 14, 2008, 122 Stat. 4303, as amended by Pub. L. 111-259, title IV, §405(b), Oct. 7, 2010, 124 Stat. 2719, provided that:"(A) IN GENERAL.-Notwithstanding any other provision of law, the annual rate of basic pay of the Inspector General of the Intelligence Community, the Inspector General of the Central Intelligence Agency, the Special Inspector General for Iraq Reconstruction, and the Special Inspector General for Afghanistan Reconstruction shall be that of an Inspector General as defined under section 12(3) of the Inspector General Act of 1978 (5 U.S.C. App.) (as amended by section 7(a) of this Act)."(B) PROHIBITION OF CASH BONUS OR AWARDS.-Section 3(f) of the Inspector General Act of 1978 (5 U.S.C. App.) (as amended by section 5 of this Act) shall apply to the Inspectors General described under subparagraph (A)." Pub. L. 110-409, §4(b)-(d), Oct. 14, 2008, 122 Stat. 4304, provided that:"(b) INSPECTORS GENERAL OF DESIGNATED FEDERAL ENTITIES.-"(1) IN GENERAL.-Notwithstanding any other provision of law, the Inspector General of each designated Federal entity (as those terms are defined under section 8G of the Inspector General Act of 1978 (5 U.S.C. App.)) shall, for pay and all other purposes, be classified at a grade, level, or rank designation, as the case may be, at or above those of a majority of the senior level executives of that designated Federal entity (such as a General Counsel, Chief Information Officer, Chief Financial Officer, Chief Human Capital Officer, or Chief Acquisition Officer). The pay of an Inspector General of a designated Federal entity (as those terms are defined under section 8G of the Inspector General Act of 1978 (5 U.S.C. App.)) shall be not less than the average total compensation (including bonuses) of the senior level executives of that designated Federal entity calculated on an annual basis."(2) LIMITATION ON ADJUSTMENT.-"(A) IN GENERAL.-In the case of an Inspector General of a designated Federal entity whose pay is adjusted under paragraph (1), the total increase in pay in any fiscal year resulting from that adjustment may not exceed 25 percent of the average total compensation (including bonuses) of the Inspector General of that entity for the preceding 3 fiscal years."(B) SUNSET OF LIMITATION.-The limitation under subparagraph (A) shall not apply to any adjustment made in fiscal year 2013 or each fiscal year thereafter."(c) SAVINGS PROVISION FOR NEWLY APPOINTED INSPECTORS GENERAL.-"(1) IN GENERAL.-The provisions of section 3392 of title 5, United States Code, other than the terms 'performance awards' and 'awarding of ranks' in subsection (c)(1) of such section, shall apply to career appointees of the Senior Executive Service who are appointed to the position of Inspector General."(2) NONREDUCTION IN PAY.-Notwithstanding any other provision of law, career Federal employees serving on an appointment made pursuant to statutory authority found other than in section 3392 of title 5, United States Code, shall not suffer a reduction in pay, not including any bonus or performance award, as a result of being appointed to the position of Inspector General."(d) SAVINGS PROVISION.-Nothing in this section [amending this section, section 5315 of Title 5, Government Organization and Employees, and section 12651e of Title 42, The Public Health and Welfare, and enacting provisions set out as a note under this section] shall have the effect of reducing the rate of pay of any individual serving on the date of enactment of this section [Oct. 14, 2008] as an Inspector General of-"(1) an establishment as defined under section 12(2) of the Inspector General Act of 1978 (5 U.S.C. App.) (as amended by section 7(a) of this Act);"(2) a designated Federal entity as defined under section 8G(2) of the Inspector General Act of 1978 (5 U.S.C. App.);"(3) a legislative agency for which the position of Inspector General is established by statute; or"(4) any other entity of the Government for which the position of Inspector General is established by statute."

ACTING TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION Pub. L. 105-277, div. C, title I, §101, Oct. 21, 1998, 112 Stat. 2681-584, as amended by Pub. L. 106-113, div. B, §1000(a)(5) [title II, §239(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-302, provided that:"(a) IN GENERAL.-Notwithstanding any other provision of law, the President may appoint an acting Treasury Inspector General for Tax Administration to serve during the period-"(1) beginning on the date of the enactment of this section [Oct. 21, 1998] (or, if later, the date of the appointment), and"(2) ending on the earlier of-"(A) April 30, 1999, or"(B) the date on which the first Treasury Inspector General for Tax Administration takes office (other than pursuant to this section)."(b) DUTIES BEFORE JANUARY 18, 1999.-The acting Treasury Inspector General for Tax Administration appointed under subsection (a) shall, before January 18, 1999, take only such actions as are necessary to begin operation of the Office of Treasury Inspector General for Tax Administration, including-"(1) making interim arrangements for administrative support for the Office,"(2) establishing interim positions in the Office into which personnel will be transferred upon the transfer of functions and duties to the Office on January 18, 1999,"(3) appointing such acting personnel on an interim basis as may be necessary upon the transfer of functions and duties to the Office on January 18, 1999, and"(4) providing guidance and input for the fiscal year 2000 budget process for the Office."(c) ACTIONS NOT TO LIMIT AUTHORITY OF IG.-None of the actions taken by an individual appointed under subsection (a) shall affect the future authority of any Treasury Inspector General for Tax Administration not appointed under subsection (a)."(d) LIMITATIONS.-"(1) NOMINATION.-No individual appointed under subsection (a) may serve on or after January 19, 1999, unless on or before such date the President has submitted to the Senate his nomination of an individual to serve as the first Treasury Inspector General for Tax Administration."(2) TREASURY INSPECTOR GENERAL MAY NOT SERVE.-No individual appointed under subsection (a) may serve during any period such individual is serving as the Inspector General of the Treasury of the United States or the acting Inspector General of the Treasury of the United States."(3) EMPLOYMENT RESTRICTIONS.-The provisions of section 8D(j) of the Inspector General Act of 1978 (5 U.S.C. App.) shall not apply to any individual appointed under subsection (a)."[ Pub. L. 106-113, div. B, §1000(a)(5) [title II, §239(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A-302, provided that: "The amendment made by subsection (a) [amending section 101 of Pub. L. 105-277 set out above] shall be effective as if included in the enactment of section 101 of title I of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 [ Pub. L. 105-277]."]

TRANSITIONAL PROVISIONS RELATING TO APPOINTMENT OF INSPECTOR GENERAL OF FEDERAL DEPOSIT INSURANCE CORPORATION Pub. L. 103-204, §23(c), Dec. 17, 1993, 107 Stat. 2408, provided that:"(1) CURRENT SERVICE.-Except as otherwise provided by law, the individual serving as the Inspector General of the Federal Deposit Insurance Corporation before the date of enactment of this Act [Dec. 17, 1993] may continue to serve in such position until the earlier of-"(A) the date on which the President appoints a successor under section 3(a) of the Inspector General Act of 1978 [subsec. (a) of this section]; or"(B) the date which is 6 months after the date of enactment of this Act."(2) DEFINITION.-For purposes of paragraph (1), the term 'successor' may include the individual holding the position of Inspector General of the Federal Deposit Insurance Corporation on or after the date of enactment of this Act."

EXECUTIVE ORDER NO. 12993Ex. Ord. No. 12993, Mar. 21, 1996, 61 F.R. 13043, which related to administrative allegations against Inspectors General, was omitted from the Code pursuant to Pub. L. 110-409, §7(c)(2), Oct. 14, 2008, 122 Stat. 4313, which provided that Ex. Ord. No. 12933 (probably meaning Ex. Ord. No. 12993), as in effect before Oct. 14, 2008, was to have no force or effect on and after the earlier of either the date on which the Council of the Inspectors General on Integrity and Efficiency becomes effective and operational or the last day of the 180-day period beginning on Oct. 14, 2008. See section 7(c)(2) of Pub. L. 110-409 set out as an Effective Date; Existing Executive Orders note under section 11 of this Appendix.