[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2829 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2829

To authorize appropriations for the Merit Systems Protection Board and 
the Office of Special Counsel, to provide for the protection of certain 
    disclosures of information by Federal employees, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2002

   Mr. Akaka introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To authorize appropriations for the Merit Systems Protection Board and 
the Office of Special Counsel, to provide for the protection of certain 
    disclosures of information by Federal employees, 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) is amended by 
striking ``1998, 1999, 2000, 2001 and 2002'' and inserting ``2003, 
2004, 2005, 2006, and 2007''.
    (b) Office of Special Counsel.--Section 8(a)(2) of the 
Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by 
striking ``1993, 1994, 1995, 1996, and 1997,'' and inserting ``2003, 
2004, 2005, 2006, and 2007''.
    (c) Effective Date.--This section shall take effect on October 1, 
2002.

SEC. 2. DISCLOSURE OF VIOLATIONS OF LAW; RETURN OF DOCUMENTS.

    Section 1213(g) of title 5, United States Code, is amended--
            (1) in paragraph (1), by striking the last sentence; and
            (2) by striking paragraph (3) and inserting the following:
            ``(3) If the Special Counsel does not transmit the 
        information to the head of the agency under paragraph (2), the 
        Special Counsel shall inform the individual of--
                    ``(A) the reasons why the disclosure may not be 
                further acted on under this chapter; and
                    ``(B) other offices available for receiving 
                disclosures, should the individual wish to pursue the 
                matter further.''.

SEC. 3. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL 
              EMPLOYEES.

    (a) Clarification of Disclosures Covered.--Section 2302(b)(8) of 
title 5, United States Code, is amended--
            (1) in subparagraph (A)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction to time, place, form, motive, 
                context, or prior disclosure made to any person by an 
                employee or applicant, including a disclosure made in 
                the ordinary course of an employee's duties that the 
                employee or applicant reasonably believes is evidence 
                of''; and
                    (B) in clause (i) by striking ``a violation'' and 
                inserting ``any violation'';
            (2) in subparagraph (B)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction of time, place, form, motive, 
                context, or prior disclosure made to any person by an 
                employee or applicant, including a disclosure made in 
                the ordinary course of an employee's duties to the 
                Special Counsel, or to the Inspector General of an 
                agency or another employee designated by the head of 
                the agency to receive such disclosures, of information 
                that the employee or applicant reasonably believes is 
                evidence of''; and
                    (B) in clause (i), by striking ``a violation'' and 
                inserting ``any violation''; and
            (3) by adding at the end the following:
                    ``(C) a disclosure that--
                            ``(i) is made by an employee or applicant 
                        of information required by law or Executive 
                        order to be kept secret in the interest of 
                        national defense or the conduct of foreign 
                        affairs that the employee or applicant 
                        reasonably believes is evidence of--
                                    ``(I) any violation of any law, 
                                rule, or regulation;
                                    ``(II) gross mismanagement, a gross 
                                waste of funds, an abuse of authority, 
                                or a substantial and specific danger to 
                                public health or safety; or
                                    ``(III) a false statement to 
                                Congress on an issue of material fact; 
                                and
                            ``(ii) is made to--
                                    ``(I) a member of a committee of 
                                Congress having a primary 
                                responsibility for oversight of a 
                                department, agency, or element of the 
                                Federal Government to which the 
                                disclosed information relates;
                                    ``(II) any other Member of Congress 
                                who is authorized to receive 
                                information of the type disclosed; or
                                    ``(III) an employee of the 
                                executive branch or Congress who has 
                                the appropriate security clearance for 
                                access to the information disclosed.''.
    (b) Covered Disclosures.--Section 2302(b) of title 5, United States 
Code, is amended--
            (1) in the matter following paragraph (12), by striking 
        ``This subsection'' and inserting the following: ``This 
        subsection''; and
            (2) by adding at the end the following: ``In this 
        subsection, the term `disclosure' means a formal or informal 
        communication or transmission.''.
    (c) Rebuttable Presumption.--Section 2308(b) of title 5, United 
States Code, is amended by adding after the matter following paragraph 
(12) (as amended by subsection (b) of this section) the following: 
``For purposes of paragraph (8), any presumption relating to the 
performance of a duty by an employee may be rebutted by substantial 
evidence.''.
    (d) Nondisclosure Policies, Forms, and Agreements.--
            (1) Personnel action.--Section 2302(a)(2)(A) of title 5, 
        United States Code, is amended--
                    (A) in clause (x), by striking ``and'' after the 
                semicolon; and
                    (B) by redesignating clause (xi) as clause (xii) 
                and inserting after clause (x) the following:
                            ``(xi) the implementation or enforcement of 
                        any nondisclosure policy, form, or agreement; 
                        and''.
    (e) Authority of Special Counsel Relating to Civil Actions.--
            (1) Representation of special counsel.--Section 1212 of 
        title 5, United States Code, is amended by adding at the end 
        the following:
    ``(h) Except as provided in section 518 of title 28, relating to 
litigation before the Supreme Court, attorneys designated by the 
Special Counsel may appear for the Special Counsel and represent the 
Special Counsel in any civil action brought in connection with section 
2302(b)(8) or subchapter III of chapter 73, or as otherwise authorized 
by law.''.
            (2) Judicial review of merit systems protection board 
        decisions.--Section 7703 of title 5, United States Code, is 
        amended by adding at the end the following:
    ``(e) The Special Counsel may obtain review of any final order or 
decision of the Board by filing a petition for judicial review in the 
United States Courts of Appeals for the Federal Circuit if the Special 
Counsel determines, in the discretion of the Special Counsel, that the 
Board erred in deciding a case arising under section 2302(b)(8) or 
subchapter III of chapter 73 and that the Board's decision will have a 
substantial impact on the enforcement of section 2302(b)(8) or 
subchapter III of chapter 73. If the Special Counsel was not a party or 
did not intervene in a matter before the Board, the Special Counsel may 
not petition for review of a Board decision under this section unless 
the Special Counsel first petitions the Board for reconsideration of 
its decision, and such petition is denied. In addition to the named 
respondent, the Board and all other parties to the proceedings before 
the Board shall have the right to appear in the proceedings before the 
Court of Appeals. The granting of the petition for judicial review 
shall be at the discretion of the Court of Appeals.''.

SEC. 4. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

    (a) In General.--Each agreement in Standard Forms 312 and 4414 of 
the Government and any other nondisclosure policy, form, or agreement 
shall contain the following statement: ``These restrictions are 
consistent with and do not supersede, conflict with, or otherwise alter 
the employee obligations, rights, or liabilities created by Executive 
Order No. 12958; section 7211 of title 5, United States Code (governing 
disclosures to Congress); section 1034 of title 10, United States Code 
(governing disclosure to Congress by members of the military); section 
2302(b)(8) of title 5, United States Code (governing disclosures of 
illegality, waste, fraud, abuse or public health or safety threats); 
the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et 
seq.) (governing disclosures that could expose confidential Government 
agents); and the statutes which protect against disclosure that may 
compromise the national security, including sections 641, 793, 794, 
798, and 952 of title 18, United States Code, and section 4(b) of the 
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The definitions, 
requirements, obligations, rights, sanctions, and liabilities created 
by such Executive order and such statutory provisions are incorporated 
into this agreement and are controlling.'' Any nondisclosure policy, 
form, or agreement that does not contain the above statement may not be 
implemented or enforced to the extent that it conflicts with language 
in the above statement.
    (b) Persons Other Than Federal Employees.--Notwithstanding 
subsection (a), a nondisclosure policy, form, or agreement that is to 
be executed by a person connected with the conduct of an intelligence 
or intelligence-related activity, other than an employee or officer of 
the United States Government, may contain provisions appropriate to the 
particular activity for which such document is to be used. Such form or 
agreement shall, at a minimum, require that the person will not 
disclose any classified information received in the course of such 
activity unless specifically authorized to do so by the United States 
Government. Such nondisclosure forms shall also make it clear that such 
forms do not bar disclosures to Congress or to an authorized official 
of an executive agency or the Department of Justice that are essential 
to reporting a substantial violation of law.
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