[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2968 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 646
114th CONGRESS
  2d Session
                                S. 2968

                          [Report No. 114-360]

 To reauthorize the Office of Special Counsel, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 23, 2016

Mr. Johnson (for himself, Mr. Grassley, and Mrs. McCaskill) introduced 
the following bill; which was read twice and referred to the Committee 
             on Homeland Security and Governmental Affairs

                           September 27, 2016

                Reported by Mr. Johnson, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
 To reauthorize the Office of Special Counsel, 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 ``Office of Special Counsel 
Reauthorization Act of 2016''.

SEC. 2. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.

    Section 1212(b) of title 5, United States Code, is amended by 
adding at the end the following:
    ``(5)(A) The Special Counsel, in carrying out this subchapter--
            ``(i) shall have timely access to all records, data, 
        reports, audits, reviews, documents, papers, recommendations, 
        or other material available to the applicable agency which 
        relate to a matter within the jurisdiction or authority of the 
        Special Counsel;
            ``(ii) may request from any agency the information or 
        assistance that may be necessary for the Special Counsel to 
        carry out the duties and responsibilities of the Special 
        Counsel under this subchapter; and
            ``(iii) may require, during an investigation, review, or 
        inquiry of an agency, any employee of the agency to provide to 
        the Special Counsel any record or other information that 
        relates to a matter within the jurisdiction or authority of the 
        Special Counsel.
    ``(B)(i) A claim of common law privilege by an agency, or an 
officer or employee of an agency, shall not prevent the Special Counsel 
from obtaining any material described in subparagraph (A)(i) with 
respect to the agency.
    ``(ii) The submission of material described in subparagraph (A)(i) 
by an agency to the Special Counsel may not be deemed to waive any 
assertion of privilege by the agency against a non-Federal entity or 
against an individual in any other proceeding.
    ``(iii) With respect to any record or other information made 
available to the Special Counsel by an agency under subparagraph (A), 
the Special Counsel may only disclose the record or information for a 
purpose that is in furtherance of any authority provided to the Special 
Counsel in this subchapter.
    ``(6) The Special Counsel shall submit to the Committee on Homeland 
Security and Governmental Affairs of the Senate, the Committee on 
Oversight and Government Reform of the House of Representatives, and 
each committee of Congress with jurisdiction over the applicable agency 
a report regarding any case of contumacy or failure to comply with a 
request submitted by the Special Counsel under paragraph (5)(A).''.

SEC. 3. PROHIBITED PERSONNEL PRACTICES; INFORMATION ON WHISTLEBLOWER 
              PROTECTIONS.

    Section 2302 of title 5, United States Code, is amended--
            (1) in subsection (a)(2)(A)--
                    (A) in clause (xi), by striking ``and'' at the end;
                    (B) by redesignating clause (xii) as clause (xiii); 
                and
                    (C) by inserting after clause (xi) the following:
                    ``(xii) for the purposes of paragraph (8) or (9) of 
                subsection (b), the accessing of a medical record of 
                the employee or applicant for employment; and'';
            (2) in subsection (b)(9)(D), by inserting ``, rule, or 
        regulation'' after ``order'' ``law''; and
            (3) by striking subsection (c) and inserting the following:
    ``(c)(1) In this subsection--
            ``(A) the term `new employee' means an individual--
                    ``(i) appointed to a position as an employee on or 
                after the date of enactment of the Office of Special 
                Counsel Reauthorization Act of 2016; and
                    ``(ii) who has not previously served as an 
                employee; and
            ``(B) the term `whistleblower protections' means the 
        protections against and remedies for a prohibited personnel 
        practice described in paragraph (8) or subparagraph (A)(i), 
        (B), (C), or (D) of paragraph (9) of subsection (b).
    ``(2) The head of each agency shall be responsible for--
            ``(A) preventing prohibited personnel practices;
            ``(B) complying with and enforcing applicable civil service 
        laws, rules, and regulations, and other aspects of personnel 
        management; and
            ``(C) ensuring, in consultation with the Special Counsel 
        and the Inspector General of the agency, that employees of the 
        agency are informed of the rights and remedies available to the 
        employees under this chapter and chapter 12, including--
                    ``(i) information with respect to whistleblower 
                protections available to new employees during a 
                probationary period;
                    ``(ii) the role of the Office of Special Counsel 
                and the Merit Systems Protection Board with respect to 
                whistleblower protections; and
                    ``(iii) the means by which, with respect to 
                information that is otherwise required by law or 
                Executive order to be kept classified in the interest 
                of national defense or the conduct of foreign affairs, 
                an employee may make a lawful disclosure of the 
                information to--
                            ``(I) the Special Counsel;
                            ``(II) the Inspector General of an agency;
                            ``(III) Congress; or
                            ``(IV) another employee of the agency who 
                        is designated to receive such a disclosure.
    ``(3) The head of each agency shall ensure that the information 
described in paragraph (2) is provided to each new employee of the 
agency not later than 180 days after the date on which the new employee 
is appointed.
    ``(4) The head of each agency shall make available information 
regarding whistleblower protections applicable to employees of the 
agency on the public website of the agency and on any online portal 
that is made available only to employees of the agency, if such portal 
exists.
    ``(5) Any employee to whom the head of an agency delegates 
authority for any aspect of personnel management shall, within the 
limits of the scope of the delegation, be responsible for the 
activities described in paragraph (2).''.

SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS.

    (a) Explanations for Failure To Take Action.--Section 1213 of title 
5, United States Code, is amended--
            (1) in subsection (b), by striking ``15 days'' and 
        inserting ``45 days'';
            (2) in subsection (e)--
                    (A) in paragraph (1), by striking ``Any such 
                report'' and inserting ``Any report required under 
                subsection (c) or paragraph (5) of this subsection'';
                    (B) by striking paragraph (2) and inserting the 
                following:
                    ``(2) Upon
    ``(2) Upon receipt of any report that the head of an agency is 
required to submit under subsection (c), the Special Counsel shall 
review the report and determine whether--
                            ``(A) the
            ``(A) the findings of the head of the agency appear 
        reasonable; and
                            ``(B) if
            ``(B) if the Special Counsel requires the head of the 
        agency to submit a supplemental report under paragraph (5), the 
        reports submitted by the head of the agency collectively 
        contain the information required under subsection (d).'';
                    (C) in paragraph (3), by striking ``agency report 
                received pursuant to subsection (c) of this section'' 
                and inserting ``report submitted to the Special Counsel 
                by the head of an agency under subsection (c) or 
                paragraph (5) of this subsection''; and
                    (D) by adding at the end the following:
    ``(5) If, after conducting a review of a report under paragraph 
(2), the Special Counsel concludes that the Special Counsel requires 
additional information or documentation to determine whether the report 
submitted by the head of an agency is reasonable and sufficient, the 
Special Counsel may request that the head of the agency submit a 
supplemental report--
            ``(A) containing the additional information or 
        documentation identified by the Special Counsel; and
            ``(B) which the head of the agency shall submit to the 
        Special Counsel within a period of time specified by the 
        Special Counsel.''; and
            (3) by striking subsection (h) and inserting the following:
    ``(h) The Special Counsel may not respond to any inquiry or 
disclose any information about any person who makes a disclosure under 
this section except in accordance with section 552a or as required by 
any other provision of Federal law.''.
    (b) Retaliatory Investigations.--Section 1214 of title 5, United 
States Code, is amended by adding at the end the following:
    ``(i) The Special Counsel may petition the Board to order 
corrective action, including fees, costs, or damages reasonably 
incurred by an employee due to an investigation of the employee by an 
agency, if the investigation by an agency was commenced, expanded, or 
extended in retaliation for a disclosure or protected activity 
described under section 2302(b)(8) or section 2302(b)(9) (A)(i), (B), 
(C), or (D), even if no personnel action, as defined under section 
2302(a), is taken or not taken.''.
    (c) Sensitive Positions.--Section 7701 of title 5, United States 
Code, is amended--
            (1) by redesignating subsection (k) as subsection (l); and
            (2) by inserting after subsection (j) the following:
    ``(k)(1) The Board has authority to review on the merits an appeal 
by an employee or applicant for employment of an action arising from a 
determination that the employee or applicant for employment is 
ineligible for a sensitive position if--
            ``(A) the sensitive position does not require a security 
        clearance or access to classified information; and
            ``(B) such action is otherwise appealable.
    ``(2) In this subsection, the term `sensitive position' means a 
position designated as a sensitive position under Executive Order 10450 
(5 U.S.C. 7311 note), or any successor thereto.''.
    (d) Protection of Whistleblowers as Criteria in Performance 
Appraisals.--
            (1) Establishment of systems.--Section 4302 of title 5, 
        United States Code, is amended--
                    (A) by redesignating subsections (b) and (c) as 
                subsections (c) and (d), respectively; and
                    (B) by inserting after subsection (a) the 
                following:
    ``(b)(1) The head of each agency, in consultation with the Director 
of the Office of Personnel Management and the Special Counsel, shall 
develop criteria that--
            ``(A) the head of the agency shall use as a critical 
        element for establishing the job requirements of a supervisory 
        employee; and
            ``(B) promote the protection of whistleblowers.
    ``(2) The criteria required under paragraph (1) shall include 
principles for the protection of whistleblowers, such as the degree to 
which supervisory employees--
            ``(A) respond constructively when employees of the agency 
        make disclosures described in subparagraph (A) or (B) of 
        section 2302(b)(8);
            ``(B) take responsible actions to resolve such disclosures; 
        and
            ``(C) foster an environment in which employees of the 
        agency feel comfortable making such disclosures to supervisory 
        employees or other appropriate authorities.
    ``(3) In this subsection--
            ``(A) the term `agency' means any entity the employees of 
        which are covered by paragraphs (8) and (9) of section 2302(b), 
        without regard to whether any other provision of this section 
        is applicable to the entity;
            ``(B) the term `supervisory employee' means an employee who 
        would be a supervisor, as defined in section 7103(a), if the 
        agency employing the employee was an agency for purposes of 
        chapter 71; and
            ``(C) the term `whistleblower' means an employee who makes 
        a disclosure described in section 2302(b)(8).''.
            (2) Criteria for performance appraisals.--Section 4313 of 
        title 5, United States Code, is amended--
                    (A) in paragraph (4), by striking ``and'' at the 
                end;
                    (B) in paragraph (5), by striking the period at the 
                end and inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(6) protecting whistleblowers, as described in section 
        4302(b)(2).''.
    (e) Annual Report to Congress on Unacceptable Performance in 
Whistleblower Protection.--
            (1) Definitions.--In this subsection, the terms ``agency'' 
        and ``whistleblower'' have the meanings given the terms in 
        section 4302(b)(3) of title 5, United States Code, as amended 
        by subsection (d).
            (2) Report.--Each agency shall annually submit to the 
        Committee on Homeland Security and Governmental Affairs of the 
        Senate, the Committee on Oversight and Government Reform of the 
        House of Representatives, and each committee of Congress with 
        jurisdiction over the agency a report that details--
                    (A) the number of performance appraisals, for the 
                year covered by the report, that determined that an 
                employee of the agency failed to meet the standards for 
                protecting whistleblowers that were established under 
                section 4302(b) of title 5, United States Code, as 
                amended by subsection (d);
                    (B) the reasons for the determinations described in 
                subparagraph (A); and
                    (C) each disciplinary or corrective action taken by 
                the agency in response to a determination under 
                subparagraph (A).
    (f) Technical and Conforming Amendment.--Section 4301 of title 5, 
United States Code, is amended, in the matter preceding paragraph (1), 
by striking ``For the purpose of'' and inserting ``Except as otherwise 
expressly provided, for the purpose of''.

SEC. 5. TERMINATION OF CERTAIN INVESTIGATIONS BY THE OFFICE OF SPECIAL 
              COUNSEL.

    Section 1214(a) of title 5, United States Code, is amended--
            (1) in paragraph (1)(D), in the first sentence, by 
        inserting ``other than a termination of an investigation 
        described in paragraph (6)(A)'' after ``investigation of a 
        prohibited personnel practice''; and
            (2) by adding at the end the following:
    ``(6)(A) Not later than 30 days after receiving an allegation of a 
prohibited personnel practice under paragraph (1), the Special Counsel 
may terminate an investigation of the allegation without further 
inquiry or an opportunity for the individual who submitted the 
allegation to respond if the Special Counsel determines that--
            ``(i) the same allegation, based on the same set of facts 
        and circumstances had previously been--
                    ``(I)(aa) made by the individual; and
                    ``(bb) investigated by the Special Counsel; or
                    ``(II) filed by the individual with the Merit 
                Systems Protection Board;
            ``(ii) the Special Counsel does not have jurisdiction to 
        investigate the allegation; or
            ``(iii) the individual knew or should have known of the 
        alleged prohibited personnel practice on or before the date 
        that is 3 years before the date on which the Special Counsel 
        received the allegation.
    ``(B) Not later than 30 days after the date on which the Special 
Counsel terminates an investigation under subparagraph (A), the Special 
Counsel shall provide a written notification to the individual who 
submitted the allegation of a prohibited personnel practice that states 
the basis of the Special Counsel for terminating the investigation.''.

SEC. 6. ALLEGATIONS OF WRONGDOING WITHIN THE OFFICE OF SPECIAL COUNSEL.

    Section 1212 of title 5, United States Code, is amended by adding 
at the end the following:
    ``(i) The Special Counsel shall enter into at least 1 agreement 
with the Inspector General of an agency under which--
            ``(1) the Inspector General shall--
                    ``(A) receive, review, and investigate allegations 
                of prohibited personnel practices or wrongdoing filed 
                by employees of the Office of Special Counsel; and
                    ``(B) develop a method for an employee of the 
                Office of Special Counsel to directly communicate with 
                the Inspector General; and
            ``(2) the Special Counsel--
                    ``(A) may not require an employee of the Office of 
                Special Counsel to seek authorization or approval 
                before directly contacting the Inspector General in 
                accordance with the agreement; and
                    ``(B) may reimburse the Inspector General for 
                services provided under the agreement.''.

SEC. 7. REPORTING REQUIREMENTS.

    (a) Annual Report.--Section 1218 of title 5, United States Code, is 
amended to read as follows:
``Sec. 1218. Annual report
    ``The Special Counsel shall submit to Congress, on an annual basis, 
a report on the activities of the Special Counsel, which shall include, 
for the year preceding the submission of the report--
            ``(1) the number, types, and disposition of allegations of 
        prohibited personnel practices filed with the Special Counsel 
        and the costs of resolving such allegations;
            ``(2) the number of investigations conducted by the Special 
        Counsel;
            ``(3) the number of stays or disciplinary actions 
        negotiated with agencies by the Special Counsel;
            ``(4) the number of subpoenas issued by the Special 
        Counsel;
            ``(5) the number of instances in which the Special Counsel 
        reopened an investigation after the Special Counsel had made an 
        initial determination with respect to the investigation;
            ``(6) the actions that resulted from reopening 
        investigations as described in paragraph (5);
            ``(7) the number of instances in which the Special Counsel 
        did not make a determination before the end of the 240-day 
        period described in section 1214(b)(2)(A)(i) regarding whether 
        there were reasonable grounds to believe that a prohibited 
        personnel practice had occurred, existed, or was to be taken;
            ``(8) a description of the recommendations and reports made 
        by the Special Counsel to other agencies under this subchapter 
        and the actions taken by the agencies as a result of the 
        recommendations or reports;
            ``(9) the number of--
                    ``(A) actions initiated before the Merit Systems 
                Protection Board, including the number of corrective 
                action petitions and disciplinary action complaints 
                initiated; and
                    ``(B) stays and extensions of stays obtained from 
                the Merit Systems Protection Board; and
                <DELETED>    ``(C) requests for enforcement of 
                subpoenas or requests for enforcement by the Merit 
                Systems Protection Board described in section 
                1212(b)(6);</DELETED>
            ``(10) the number of prohibited personnel practice 
        complaints that resulted in--
                    ``(A) a favorable action for the complainant, 
                organized by actions in--
                            ``(i) complaints dealing with reprisals 
                        against whistleblowers; and
                            ``(ii) all other complaints; and
                    ``(B) a favorable outcome for the complainant, 
                organized by outcomes in--
                            ``(i) complaints dealing with reprisals 
                        against whistleblowers; and
                            ``(ii) all other complaints;
            ``(11) the number of corrective actions that the Special 
        Counsel required an agency to take after a finding by the 
        Special Counsel of a prohibited personnel practice, as defined 
        in section 2302(b); and
            ``(12) the results for the Office of Special Counsel of any 
        employee viewpoint survey conducted by the Office of Personnel 
        Management or any other agency.''.
    (b) Public Information.--Section 1219(a)(1) of title 5, United 
States Code, is amended to read as follows:
            ``(1) a list of any noncriminal matters referred to the 
        head of an agency under section 1213(c), together with--
                    ``(A) a copy of the information transmitted to the 
                head of the agency under section 1213(c)(1);
                    ``(B) any report from the agency under section 
                1213(c)(1)(B) relating to the matter;
                    ``(C) if appropriate, not otherwise prohibited by 
                law, and consented to by the complainant, any comments 
                from the complainant under section 1213(e)(1) relating 
                to the matter; and
                    ``(D) the comments or recommendations of the 
                Special Counsel under paragraph (3) or (4) of section 
                1213(e);''.

SEC. 8. ESTABLISHMENT OF SURVEY PILOT PROGRAM.

    (a) In General.--The Office of Special Counsel shall design and 
establish a pilot program under which the Office shall conduct, during 
the period beginning on October 1, 2017 and ending on September 30, 
2018, a survey of individuals who have filed a complaint or disclosure 
with the Office.
    (b) Purpose.--The survey under subsection (a) shall be designed for 
the purpose of collecting information and improving service at various 
stages of a review or investigation by the Office of Special Counsel.
    (c) Results.--The results of the survey under subsection (a) shall 
be published in the annual report of the Office of Special Counsel.
    (d) Suspension of Other Surveys.--During the period beginning on 
October 1, 2017 and ending on September 30, 2018, section 13 of the Act 
entitled ``An Act to reauthorize the Office of Special Counsel, and for 
other purposes'', approved October 29, 1994 (5 U.S.C. 1212 note), shall 
have no force or effect.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--Section 8(a)(2) of the Whistleblower Protection 
Act of 1989 (5 U.S.C. 5509 note) is amended by striking ``2003, 2004, 
2005, 2006, and 2007'' and inserting ``2016 through 2021''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect as though enacted on September 30, 2015.
                                                       Calendar No. 646

114th CONGRESS

  2d Session

                                S. 2968

                          [Report No. 114-360]

_______________________________________________________________________

                                 A BILL

 To reauthorize the Office of Special Counsel, and for other purposes.

_______________________________________________________________________

                           September 27, 2016

                        Reported with amendments