[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1317 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 1317

 To amend title 5, United States Code, to clarify which disclosures of 
   information are protected from prohibited personnel practices; to 
require a statement in nondisclosure policies, forms, and agreements to 
  the effect that such policies, forms, and agreements are consistent 
      with certain disclosure protections; and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 15, 2005

Mr. Platts (for himself, Mr. Blumenauer, Mr. Cummings, Mrs. Blackburn, 
   Ms. Woolsey, Mr. Paul, Mr. Markey, Mr. Shays, Ms. Schakowsky, Ms. 
   Baldwin, Mr. McNulty, Mr. Berman, Mr. Stark, Mr. Van Hollen, Ms. 
   DeGette, Ms. McCollum of Minnesota, Mr. Simmons, and Mr. LaHood) 
 introduced the following bill; which was referred to the Committee on 
                           Government Reform

_______________________________________________________________________

                                 A BILL


 
 To amend title 5, United States Code, to clarify which disclosures of 
   information are protected from prohibited personnel practices; to 
require a statement in nondisclosure policies, forms, and agreements to 
  the effect that such policies, forms, and agreements are consistent 
      with certain disclosure protections; 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. SHORT TITLE.

    This Act may be cited as the ``Federal Employee Protection of 
Disclosures Act''.

SEC. 2. 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 as 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''; and
            (2) in subparagraph (B)--
                    (A) by striking ``which the employee or applicant 
                reasonably believes evidences'' and inserting ``, 
                without restriction as 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, 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 (other than a violation of 
                this section)''.

SEC. 3. COVERED DISCLOSURES.

    Section 2302(a)(2) of title 5, United States Code, is amended--
            (1) in subparagraph (B)(ii), by striking ``and'' at the 
        end;
            (2) in subparagraph (C)(iii), by striking the period at the 
        end and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(D) `disclosure' means a formal or informal 
        communication, but does not include a communication concerning 
        policy decisions that lawfully exercise discretionary authority 
        unless the employee providing the disclosure reasonably 
        believes that the disclosure evidences--
                    ``(i) any violation of any law, rule, or 
                regulation; or
                    ``(ii) gross mismanagement, a gross waste of funds, 
                an abuse of authority, or a substantial and specific 
                danger to public health or safety.''.

SEC. 4. REBUTTABLE PRESUMPTION.

    Section 2302(b) of title 5, United States Code, is amended by 
adding at the end the following: ``For purposes of paragraph (8), any 
presumption relating to the performance of a duty by an employee who 
has authority to take, direct others to take, recommend, or approve any 
personnel action may be rebutted by substantial evidence. For purposes 
of paragraph (8), a determination as to whether an employee or 
applicant reasonably believes that such employee or applicant has 
disclosed information that evidences any violation of law, rule, 
regulation, gross mismanagement, a gross waste of funds, an abuse of 
authority, or a substantial and specific danger to public health or 
safety shall be made by determining whether a disinterested observer 
with knowledge of the essential facts known to or readily ascertainable 
by the employee or applicant would reasonably conclude that the actions 
of the Government evidence such violations, mismanagement, waste, 
abuse, or danger.''.

SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

    (a) Personnel Action.--Section 2302(a)(2)(A) of title 5, United 
States Code, is amended--
            (1) in clause (x), by striking ``and'' at the end;
            (2) by redesignating clause (xi) as clause (xii); and
            (3) by inserting after clause (x) the following:
                    ``(xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and''.
    (b) Prohibited Personnel Practice.--Section 2302(b) of title 5, 
United States Code, is amended--
            (1) in paragraph (11), by striking ``or'' at the end;
            (2) in paragraph (12), by striking the period and inserting 
        a semicolon; and
            (3) by inserting after paragraph (12) the following:
            ``(13) implement or enforce any nondisclosure policy, form, 
        or agreement, if such policy, form, or agreement does not 
        contain the following statement:
    ```These provisions 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 disclosures 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 and following) (governing 
disclosures that could expose confidential Government agents); and the 
statutes which protect against disclosures that could compromise 
national security, including sections 641, 793, 794, 798, and 952 of 
title 18, United States Code, and section 4(b) of the Subversive 
Activities Control 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.'; or
            ``(14) conduct, or cause to be conducted, an investigation, 
        other than any ministerial or nondiscretionary factfinding 
        activities necessary for the agency to perform its mission, of 
        an employee or applicant for employment because of any activity 
        protected under this section.''.

SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT.

    Section 2302(a)(2)(C) of title 5, United States Code, is amended by 
striking clause (ii) and inserting the following:
                    ``(ii)(I) the Federal Bureau of Investigation, the 
                Central Intelligence Agency, the Defense Intelligence 
                Agency, the National Imagery and Mapping Agency, the 
                National Security Agency; and
                    ``(II) as determined by the President, any 
                Executive agency or unit thereof the principal function 
                of which is the conduct of foreign intelligence, 
                counterintelligence activities, or homeland security, 
                if the determination (as that determination relates to 
                a personnel action) is made before that personnel 
                action; or''.

SEC. 7. DISCIPLINARY ACTION.

    Section 1215(a)(3) of title 5, United States Code, is amended to 
read as follows:
    ``(3)(A) A final order of the Board may impose--
            ``(i) disciplinary action consisting of removal, reduction 
        in grade, debarment from Federal employment for a period not to 
        exceed 5 years, suspension, or reprimand;
            ``(ii) an assessment of a civil penalty not to exceed 
        $1,000; or
            ``(iii) any combination of disciplinary actions described 
        under clause (i) and an assessment described under clause (ii).
    ``(B) In any case in which the Board finds that an employee has 
committed a prohibited personnel practice under paragraph (8) or (9) of 
section 2302(b), the Board shall impose disciplinary action if the 
Board finds that the activity protected under such paragraph (8) or (9) 
(as the case may be) was the primary motivating factor, unless that 
employee demonstrates, by a preponderance of the evidence, that the 
employee would have taken, failed to take, or threatened to take or 
fail to take the same personnel action, in the absence of such 
protected activity.''.

SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON REVOCATION OF 
              SECURITY CLEARANCES.

    (a) Requirement.--The Comptroller General shall conduct a study of 
security clearance revocations, taking effect after 1996, with respect 
to personnel that filed claims under chapter 12 of title 5, United 
States Code, in connection therewith. The study shall consist of an 
examination of the number of such clearances revoked, the number 
restored, and the relationship, if any, between the resolution of 
claims filed under such chapter and the restoration of such clearances.
    (b) Report.--Not later than June 30, 2006, the Comptroller General 
shall submit to the Committee on Government Reform of the House of 
Representatives and the Committee on Governmental Affairs of the Senate 
a report on the results of the study required by subsection (a).

SEC. 9. EFFECTIVE DATE.

    This Act shall take effect 30 days after the date of enactment of 
this Act.
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