[Congressional Record Volume 162, Number 99 (Tuesday, June 21, 2016)]
[House]
[Pages H3990-H3991]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THOROUGHLY INVESTIGATING RETALIATION AGAINST WHISTLEBLOWERS ACT
Mr. BLUM. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 4639) to reauthorize the Office of Special Counsel, to amend
title 5, United States Code, to provide modifications to authorities
relating to the Office of Special Counsel, and for other purposes, as
amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4639
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 ``Thoroughly Investigating
Retaliation Against Whistleblowers Act''.
SEC. 2. REAUTHORIZATION OF THE OFFICE OF SPECIAL COUNSEL.
(a) In General.--Section 8(a)(2) of the Whistleblower
Protection Act of 1989 (5 U.S.C. 5509 note) is amended to
read as follows:
``(2) $24,119,000 for fiscal year 2016 and $25,735,000 for
each of fiscal years 2017, 2018, 2019, and 2020 to carry out
subchapter II of chapter 12 of title 5, United States Code
(as amended by this Act).''.
(b) Effective Date.--The amendment made by subsection (a)
shall be deemed to apply beginning on October 1, 2015.
SEC. 3. ACCESS TO AGENCY INFORMATION.
Section 1212(b) of title 5, United States Code, is amended
by adding at the end the following:
``(5)(A) In carrying out this subchapter, the Special
Counsel is authorized to--
``(i) have access to any record or other information
(including a report, audit, review, document, recommendation,
or other material) of any agency under the jurisdiction of
the Office of Special Counsel, consistent with the
requirements of subparagraph (C); and
``(ii) require any employee of such an agency to provide to
the Office any record or other information during an
investigation, review, or inquiry of any agency under the
jurisdiction of the Office.
``(B) With respect to any record or other information made
available by an agency under this subchapter, the Office
shall apply a level of confidentiality to such record or
information at the level of confidentiality applied to the
record by the agency.
``(C) With respect to any record or other information
described under subparagraph (A), the Attorney General or an
Inspector General may withhold access to any such record or
other information if the disclosure could reasonably be
expected to interfere with an ongoing criminal investigation
or prosecution, but only if the Attorney General or
applicable agency head submits a written report to the Office
of Special Counsel describing the record or other information
withheld and the reason for the withholding.''.
SEC. 4. WHISTLEBLOWER PROVISIONS.
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 (d)--
(A) in paragraph (4), by striking ``and'' at the end;
(B) in paragraph (5)--
(i) in the matter before subparagraph (A), by striking
``such as'' and inserting ``including''; and
(ii) in subparagraph (D), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(6) if any disclosure referred to an agency head under
subsection (c) is substantiated in whole or in part by the
agency head, a detailed explanation of the failure to take
any action described under paragraph (5).''; and
(3) in subsection (e), by adding at the end the following:
``(5) If an agency head submits a report to the Special
Counsel under subsection (d) that includes a description of
any agency action proposed to be taken as a result of the
investigation, the agency head shall, not later than 180 days
after the date of such submission, submit a supplemental
report to the Special Counsel stating whether any proposed
action has been taken, and if the action has not been taken,
the reason why it has not been taken.''.
SEC. 5. TERMINATION OF CERTAIN OSC INVESTIGATIONS.
(a) In General.--Section 1214(a) of title 5, United States
Code, is amended by adding at the end the following:
``(6)(A) Within 30 days of receiving an allegation from a
person under paragraph (1), the Special Counsel may terminate
an investigation under such paragraph with respect to the
allegation, without further inquiry or an opportunity for the
person to respond, if the Special Counsel determines that--
``(i) the same allegation, based on the same set of facts
and circumstances--
``(I) had previously been made by the person and previously
investigated by the Special Counsel; or
``(II) had previously been filed by the person with the
Merit Systems Protection Board;
``(ii) the Office of Special Counsel does not have
jurisdiction to investigate the allegation; or
``(iii) the person knew or should have known of the alleged
prohibited personnel practice earlier than the date that is 3
years before the date Special Counsel received the
allegation.
``(B) If the Special Counsel terminates an investigation
under subparagraph (A), not later than 30 days after the date
of such termination the Special Counsel shall provide a
written notification stating the basis for the termination to
the person who made the allegation. Paragraph (1)(D) shall
not apply to any termination under such subparagraph.''.
(b) Conforming Amendments.--Section 1214 of title 5, United
States Code, is amended--
(1) in subsection (a)(1)(A), by striking ``The Special
Counsel'' and inserting ``Except as provided in paragraph
(6), the Special Counsel''; and
(2) in subsection (a)(1)(C), in the matter before clause
(i), by inserting ``or paragraph (6)'' after ``paragraph
(2)''.
SEC. 6. REPORTING REQUIREMENTS.
(a) OSC Annual Report to Congress.--Section 1218 of title
5, United States Code, is amended to read as follows:
``Sec. 1218. Annual report
``(a) The Special Counsel shall submit an annual report to
Congress on the activities of the Special Counsel. Any such
report shall include--
``(1) the number, types, and disposition of allegations of
prohibited personnel practices filed with the Special
Counsel, and the cost of allegations so disposed of;
``(2) the number of investigations conducted by the Special
Counsel;
``(3) the number of stays or disciplinary actions
negotiated by the Special Counsel with agencies;
``(4) the number of cases in which the Special Counsel 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);
``(5) a description of the recommendations and reports made
by the Special Counsel to other agencies pursuant to this
subchapter, and the actions taken by the agencies as a result
of the reports or recommendations;
``(6) the number of--
``(A) actions initiated before the Merit Systems Protection
Board, including the number of corrective action petitions
and disciplinary action complaints so initiated; and
``(B) stays and stay extensions obtained from the Board;
and
``(7) the number of prohibited personnel practice
complaints that result in--
``(A) a favorable action for the complainant, categorized
by actions with respect to whistleblower reprisal cases and
all other cases; and
``(B) a favorable outcome for the complainant, categorized
by outcomes with respect to whistleblower reprisal cases and
all other cases.
``(b) The report required by subsection (a) shall include
whatever recommendations for legislation or other action by
Congress the Special Counsel may consider appropriate.''.
(b) OSC Public Information.--Section 1219(a)(1) of title 5,
United States Code, is amended to read as follows:
``(1) a list of any noncriminal matter referred to an
agency head under section 1213(c), together with--
``(A) the applicable transmittal of the matter to the
agency head under section 1213(c)(1);
``(B) any report from agency head under section
1213(c)(1)(B) relating to such matter;
``(C) if appropriate, not otherwise prohibited by law, and
with the consent of the complainant, any comments from the
complainant under section 1213(e)(1) relating to the matter;
and
``(D) the Special Counsel's comments or recommendations
under section 1213(e)(3) or (4) relating to the matter;''.
SEC. 7. ESTABLISHMENT OF SURVEY PILOT PROGRAM.
(a) In General.--The Office of Special Counsel shall design
and establish a survey pilot program under which the Office
shall conduct, with respect to fiscal years 2017 and 2018, a
survey of individuals who have filed a complaint or
disclosure with the Office. The survey shall be designed to
gather responses from the individuals for the purpose of
collecting information and improving customer service at
various stages of the review or investigative process. The
results of the survey shall be published in the annual report
of the Office.
(b) Suspension of Other Surveys.--During fiscal years 2017
and 2018, section 13 of Public Law 103-424 shall have no
force or effect.
SEC. 8. PENALTIES UNDER THE HATCH ACT.
(a) In General.--Section 7326 of title 5, United States
Code, is amended to read as follows:
``Sec. 7326. Penalties
``An employee or individual who violates section 7323 or
7324 shall be subject to--
``(1) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(2) an assessment of a civil penalty not to exceed
$1,000; or
``(3) any combination of the penalties described in
paragraph (1) or (2).''.
(b) Application.--The amendment made by subsection (a)
shall apply to any violation of section 7323 or 7324 of title
5, United States
[[Page H3991]]
Code, occurring after the date of enactment of this Act.
SEC. 9. REGULATIONS.
Not later than two years after the date of enactment of
this Act, the Special Counsel shall prescribe such
regulations as may be necessary to perform the functions of
the Special Counsel under subchapter II of chapter 12 of
title 5, United States Code, including regulations necessary
to carry out sections 1213, 1214, and 1215 of such title, and
any functions required due to the amendments made by this
Act. Such regulations shall be published in the Federal
Register.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Iowa (Mr. Blum) and the gentlewoman from Michigan (Mrs. Lawrence) each
will control 20 minutes.
The Chair recognizes the gentleman from Iowa.
General Leave
Mr. BLUM. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Iowa?
There was no objection.
Mr. BLUM. Mr. Speaker, I yield myself such time as I may consume.
I rise today in support of my bill, H.R. 4639, the Thoroughly
Investigating Retaliation Against Whistleblowers Act.
This is a bill to reauthorize the Office of Special Counsel, or OSC,
over the next 5 years. The bipartisan legislation was passed
unanimously out of the Oversight and Government Reform Committee. It
also has the support of the whistleblower community.
Mr. Speaker, OSC is tasked with a variety of responsibilities,
including policing whistleblower retaliation across the entire
executive branch, an immense responsibility.
OSC's last reauthorization expired in 2007, so this bill is long
overdue.
In addition to reauthorizing the agency, this bill aims to give OSC
the tools it needs to continue the good work it is already doing. For
example, this legislation would ensure that OSC has the access to
agency records that it needs. Agencies should not be able to stonewall
OSC to stop the Special Counsel from investigating retaliation within
their agency.
Like inspectors general, OSC must have access to agency information
in order to properly conduct the duties they are charged with by
Congress. OSC is part of the executive branch, just the same as the
agencies that Special Counsel oversees, so those agencies should not be
able to invoke legal privileges to withhold information. Take the
attorney-client privilege as an example. These agencies all represent
the same client--the Federal Government--which works for the taxpayer.
Mr. Speaker, the bill also allows OSC to use a simplified process to
close out duplicate complaints so it can focus its resources on new
whistleblower allegations. It puts a statute of limitations on
whistleblower retaliation cases of 3 years, after which documents and
witness recollections can be hard to obtain. These steps will help to
improve the efficiency and effectiveness of OSC operations.
Mr. Speaker, OSC has an immensely important role to play in
protecting whistleblowers, helping to root out waste, fraud, and abuse.
I believe this bill will be good for the agency and good for the
whistleblowers that they are charged to protect.
I urge that we pass it here in the House of Representatives.
I reserve the balance of my time.
Mrs. LAWRENCE. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in strong support of H.R. 4639, a bill to
reauthorize the Office of Special Counsel.
I thank Ranking Member Cummings and Representatives Connolly, Blum,
and Meadows for their leadership in crafting this bipartisan bill.
While the Office of Special Counsel plays a vital role in the Federal
Government, the Office of Special Counsel, or OSC, protects Federal
employees, especially whistleblowers, from prohibited personnel
practices, such as discrimination, retaliation, and improper hiring
practices.
OSC also serves as a safe place for Federal whistleblowers to
disclose wrongdoings. The agency also safeguards the preference and
employment rights of veterans, guardsmen, and reservists to ensure that
they are not disadvantaged or discriminated against because of their
service.
Reauthorization of OSC is long overdue. The last statutory
authorization for the agency expired in fiscal year 2007. This bill
will authorize nearly $26 million in annual funding for OSC for the
fiscal years 2017 through 2020.
I commend current Special Counsel, Carolyn Lerner, for her leadership
and work in making the OSC a more effective investigative body.
This bill would make changes that would help OSC conduct
investigations and hold agencies accountable when wrongdoing is
identified. For example, the bill would provide OSC with clear
authority to obtain information from agencies during an investigation.
Providing this authority to OSC would make clear that agencies must
cooperate in the same way Congress expects agencies to cooperate with
the inspectors general and GAO.
If disclosing certain information could interfere with an ongoing
criminal investigation or prosecution, this measure would allow the
attorney general or an inspector general to withhold access to such
information.
This bill would also increase agency accountability when allegations
of misconduct are substantiated. Agencies that fail to implement a
recommendation made by OSC will be required to explain why they have
failed to take such actions.
This legislation is critically important for ensuring that Federal
employees have a venue for seeking redress against prohibited personnel
practices.
I urge my colleagues to join me in supporting passage of this
legislation.
I yield back the balance of my time.
Mr. BLUM. Mr. Speaker, I urge adoption of the bill.
I yield back the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I am proud to be a cosponsor of this
legislation to reauthorize the Office of Special Counsel. I thank
Representatives Blum, Connolly, and Meadows, as well as Chairman
Chaffetz, for working with me in such a bipartisan way on this
legislation.
As my colleagues know, one of my top priorities as Ranking Member of
the Oversight Committee is the protection of federal employees from
discrimination and retaliation.
The Office of Special Counsel plays an especially important role in
ensuring that the work environment of federal employees is free of such
prohibited personnel practices. OSC's last reauthorization ended in
2007. It is unacceptable that OSC still hasn't been authorized nearly
ten years later.
This legislation would reauthorize OSC through 2020, and it would
make changes to help OSC be more effective. For example, it would make
clear that OSC is entitled to access agency information in its
investigations.
This bill would also allow OSC to hold agencies more accountable for
whistleblower retaliation. Under the bill, if an agency substantiates a
whistleblower disclosure from OSC but fails to take a recommended
corrective action, the agency must explain why it failed to take the
action. This legislation would strengthen the tools available to OSC
for addressing and correcting retaliation and discrimination in the
federal workplace.
I ask that my colleagues join me in supporting passage of H.R. 4639.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Iowa (Mr. Blum) that the House suspend the rules and
pass the bill, H.R. 4639, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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