[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 622 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 622

  To authorize appropriations for the United States Office of Special 
  Counsel, the Merit Systems Protection Board, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               March 19 (legislative day, March 3), 1993

   Mr. Levin (for himself, Mr. Cohen, and Mr. Pryor) introduced the 
 following bill; which was read twice and referred to the Committee on 
                          Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
  To authorize appropriations for the United States Office of Special 
  Counsel, the Merit Systems Protection Board, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. AUTHORIZATION OF APPROPRIATIONS.

    (a) Merit Systems Protection Board.--Section 8(a)(1) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public Law 
101-12; 103 Stat. 34) is amended by striking out ``1989, 1990, 1991, 
1992, 1993, and 1994'' and inserting in lieu thereof ``1993, 1994, and 
1995''.
    (b) Office of Special Counsel.--Section 8(a)(2) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note; Public Law 
101-12; 103 Stat. 34) is amended by striking out ``1989, 1990, 1991, 
and 1992'' and inserting in lieu thereof ``1993, 1994, and 1995''.

SEC. 2. OFFICE OF SPECIAL COUNSEL.

    (a) Succession.--Section 1211(b) of title 5, United States Code, is 
amended by inserting after the first sentence: ``The Special Counsel 
may continue to serve beyond the expiration of the term until a 
successor is appointed and has qualified, except that the Special 
Counsel may not continue to serve for more than one year after the date 
on which the term of the Special Counsel would otherwise expire under 
this subsection.''.
    (b) Limitations on Disclosures.--Section 1212(g) of title 5, United 
States Code, is amended--
            (1) in paragraph (1), by striking out ``provide information 
        concerning'' and inserting in lieu thereof ``disclose any 
        information from or about''; and
            (2) in paragraph (2), by striking out ``a matter described 
        in subparagraph (A) or (B) of section 2302(b)(2) in connection 
        with a'' and inserting in lieu thereof ``an evaluation of the 
        work performance, ability, aptitude, general qualifications, 
        character, loyalty, or suitability for any personnel action of 
        any''.
    (c) Determinations.--Section 1214(b)(2) of title 5, United States 
Code, is amended--
            (1) by redesignating subparagraphs (A), (B) and (C) as 
        subparagraphs (B), (C) and (D), respectively;
            (2) by inserting before subparagraph (B) (as redesignated 
        by paragraph (1) of this subsection) the following:
                    ``(A)(i) Except as provided under clause (ii), no 
                later than 240 days after the date of receiving an 
                allegation of a prohibited personnel practice under 
                paragraph (1), the Special Counsel shall make a 
                determination whether there are reasonable grounds to 
                believe that a prohibited personnel practice has 
                occurred, exists, or is to be taken.
                    ``(ii) If the Special Counsel is unable to make the 
                required determination within the 240-day period 
                specified under clause (i) and the person submitting 
                the allegation of a prohibited personnel practice 
                agrees to an extension of time, the determination shall 
                be made within such additional period of time as shall 
                be agreed upon between the Special Counsel and the 
                person submitting the allegation.''; and
            (3) by inserting after subparagraph (D) (as redesignated by 
        paragraph (1) of this subsection) the following new 
        subparagraph:
                    ``(E) A determination by the Special Counsel under 
                this paragraph may not be admissible as evidence in any 
                judicial or administrative proceeding, without the 
                consent of the person submitting the allegation of a 
                prohibited personnel practice.''.
    (d) Reports.--Section 1218 of title 5, United States Code, is 
amended by inserting ``cases in which it did not make a determination 
whether there are reasonable grounds to believe that a prohibited 
personnel practice has occurred, exists, or is to be taken within the 
240-day period specified in section 1214(b)(2)(A)(i),'' after 
``investigations conducted by it,''.

SEC. 3. INDEPENDENT RIGHT OF ACTION.

    (a) Subpoenas.--Section 1221(d) of title 5, United States Code, is 
amended by striking out paragraph (1) and inserting in lieu thereof the 
following:
            ``(1) At the request of an employee, former employee, or 
        applicant for employment seeking corrective action under 
        subsection (a), the Board shall issue a subpoena for the 
        attendance and testimony of any person or the production of 
        documentary or other evidence from any person if the Board 
        finds that the testimony or production requested is not unduly 
        burdensome and appears reasonably calculated to lead to the 
        discovery of admissible evidence.''.
    (b) Referrals.--Section 1221(f) of title 5, United States Code, is 
amended by adding after paragraph (2) the following new paragraph:
            ``(3) If, based on evidence presented to it under this 
        section, the Merit Systems Protection Board determines that 
        there is reason to believe that a current employee may have 
        committed a prohibited personnel practice, the Board shall 
        refer the matter to the Special Counsel to investigate and take 
        appropriate action under section 1215.''.
    (c) Attorneys' Fees.--Section 1221(g) of title 5, United States 
Code, is amended--
            (1) in paragraph (1), by striking out ``and any other 
        reasonable costs incurred'' and inserting in lieu thereof ``and 
        any other reasonable costs incurred directly or indirectly by 
        the employee, former employee, or applicant.''; and
            (2) in paragraph (2), by striking out ``and any other 
        reasonable costs incurred,'' and inserting in lieu thereof 
        ``and any other reasonable costs incurred directly or 
        indirectly by the employee, former employee, or applicant,''.

SEC. 4. PROHIBITED PERSONNEL PRACTICES.

    (a) Personnel Actions.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (ix) by striking out ``and'' after the 
        semicolon;
            (2) by redesignating clause (x) as clause (xi) and 
        inserting before such clause the following:
            ``(x) a decision to order psychiatric testing or 
        examination; and''; and
            (3) in the matter following designated clause (xi) (as 
        redesignated by paragraph (2) of this subsection) by inserting 
        before the semicolon the following: ``, and in the case of an 
        alleged prohibited personnel practice described in subsection 
        (b)(8), an employee or applicant for employment in a Government 
        corporation as defined in section 9101 of title 31, United 
        States Code''.
    (b) Covered Positions.--Section 2302(a)(2)(B) of title 5, United 
States Code, is amended to read as follows:
            ``(B) `covered position' means, with respect to any 
        personnel action, any position in the competitive service, a 
        career appointee position in the Senior Executive Service, or a 
        position in the excepted service, but does not include any 
        position which is, prior to the personnel action--
                    ``(i) excepted from the competitive service because 
                of its confidential, policy-determining, policy-making, 
                or policy-advocating character; or
                    ``(ii) excluded from the coverage of this section 
                by the President based on a determination by the 
                President that it is necessary and warranted by 
                conditions of good administration.''.
    (c) Agencies.--Section 2302(a)(2)(C) of title 5, United States 
Code, is amended in clause (i) by inserting before the semicolon: ``, 
except in the case of an alleged prohibited personnel practice 
described in subsection (b)(8)''.
    (d) Informational Program.--Section 2302(c) of title 5, United 
States Code, is amended in the first sentence by inserting before the 
period ``, and for ensuring (in consultation with the Office of Special 
Counsel) that agency employees are informed of the rights and remedies 
available to them under this chapter and chapter 12 of this title''.

SEC. 5. PERFORMANCE APPRAISALS.

    Section 4313(5) of title 5, United States Code, is amended to read 
as follows:
            ``(5) meeting affirmative action goals, achievement of 
        equal employment opportunity requirements, and compliance with 
        the merit systems principles set forth in section 2301 of this 
        title.''.

SEC. 6. IMPLEMENTATION.

    (a) Policy Statement.--No later than 6 months after the date of 
enactment of this Act, the Special Counsel shall issue a policy 
statement regarding the implementation of the Whistleblower Protection 
Act of 1989. Such policy statement shall be made available to each 
person alleging a prohibited personnel practice described under section 
2302(b)(8) of title 5, United States Code, and shall include detailed 
guidelines identifying specific categories of information that may (or 
may not) be communicated to agency officials for an investigative 
purpose, or for the purpose of obtaining corrective action under 
section 1214 of title 5, United States Code, or disciplinary action 
under section 1215 of such title, the circumstances under which such 
information is likely to be disclosed, and whether or not the consent 
of any person is required in advance of any such communication.
    (b) Termination Statement.--The Special Counsel shall include in 
any letter terminating an investigation under section 1214(a)(2) of 
title 5, United States Code, the name and telephone number of an 
employee of the Special Counsel who is available to respond to 
reasonable questions from the person regarding the investigation or 
review conducted by the Special Counsel, the relevant facts ascertained 
by the Special Counsel, and the law applicable to the person's 
allegations.

SEC. 7. EFFECTIVE DATE.

    The provisions of this Act and the amendments made by this Act 
shall be effective on and after the date of the enactment of this Act.

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