[Congressional Record Volume 163, Number 2 (Wednesday, January 4, 2017)]
[House]
[Pages H71-H74]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THOROUGHLY INVESTIGATING RETALIATION AGAINST WHISTLEBLOWERS ACT
Mr. CHAFFETZ. Mr. Speaker, I move to suspend the rules and pass the
bill
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(H.R. 69) 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 69
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 2017 and $25,735,000 for
each of fiscal years 2018, 2019, 2020, and 2021 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, 2016.
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 2018 and 2019, 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 2018
and 2019, 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 Code, occurring after the date of enactment
of this Act.
SEC. 9. REGULATIONS.
Not later than 2 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
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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
Utah (Mr. Chaffetz) and the gentleman from Missouri (Mr. Clay) each
will control 20 minutes.
The Chair recognizes the gentleman from Utah.
General Leave
Mr. CHAFFETZ. 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 Utah?
There was no objection.
Mr. CHAFFETZ. Mr. Speaker, I yield such time as he may consume to the
gentleman from Iowa (Mr. Blum), the lead sponsor of this legislation.
Mr. BLUM. Mr. Speaker, I am proud to speak today on behalf of our
legislation to reauthorize the Office of Special Counsel for an
additional 5-year period to protect whistleblowers, Federal employees
who have the courage to come forward to expose waste, fraud, and abuse
in the Federal Government and who are so important to our oversight
responsibilities here in Congress.
The Office of Special Counsel performs a variety of important
responsibilities. Chief amongst them is investigating retaliation
against whistleblowers from the executive branch agencies, as well as
other prohibited personnel practices. Once again, this is vitally
important to the work we perform in the Government Reform and Oversight
Committee and ensures greater accountability from the executive branch
to Congress.
We are proud of the support this bipartisan bill has received from
the whistleblower community and from those who care deeply about our
efforts to perform effective oversight in our Federal Government.
Since the last authorization expired in 2007, there are a number of
necessary reforms for the OSC as the role of the Office continues to
grow and evolve. By enacting this legislation, we can ensure the Office
of Special Counsel will have access to Federal agency records that are
absolutely necessary to perform their duty of protecting Federal
employees who had the courage to speak up about malpractice,
mismanagement, and fraud in the Federal Government.
I think we can all agree how unfortunate it is that some executive
agencies continue to stonewall the Office of Special Counsel in order
to prevent them from investigating retaliatory actions against
whistleblowers, even going so far as to invoke executive privilege when
dealing with the OSC. Common sense tells us that this is unacceptable.
If the Office of Special Counsel isn't granted the access to the
information it needs, there is no way it can properly conduct the
duties authorized by Congress.
This bill also takes important steps to increase the efficiency and
effectiveness of the Office of Special Counsel, such as allowing OSC to
use a simplified process to reduce duplicative complaints to better
focus their limited resources on allegations and investigations, and
instituting a commonsense 3-year statute of limitations after which
document recovery and witness recollections can be difficult to obtain.
Mr. Speaker, before concluding my remarks, I would like to
specifically highlight the important work the Office of Special Counsel
performed recently in their exposure of the mismanagement and abuse of
our veterans at the Department of Veterans Affairs.
Two whistleblowers at the VA hospital in Phoenix, Arizona, recently
came forward with information regarding inadequate mental health
treatment in employee training at their facility. They were later
retaliated against by management. OSC was able to ensure that they
received a new job at a nearby facility under different management.
Just last month, the VA issued a report in response to OSC's
investigation detailing the changes they had made to improve mental
health care at that VA facility.
Incidents like these serve as a great reminder that hardworking
taxpayers are tired of corruption in the Federal Government.
I would also like to note the excellent work of the current special
counsel, Carolyn Lerner, who is a breath of fresh air in this role.
Mr. Speaker, the bottom line is this committee, the Committee on
Oversight and Government Reform, needs more whistleblowers in the
Federal Government, not less; and the best way to ensure government
employees come forward to expose waste, fraud, and abuse is to ensure
that they will be protected. This legislation will enable OSC to do
exactly that on behalf of all hardworking American taxpayers.
I urge my colleagues on both sides of the aisle to support this
legislation.
Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
I rise in support of this bipartisan bill which reauthorizes the
Office of Special Counsel. The OSC serves as a safe harbor for Federal
whistleblowers to disclose wrongdoing. OSC also works to protect
Federal employees and applicants for Federal employment from prohibited
personnel practices.
The bill 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 from whistleblower retaliation. Under
this bill, if any 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. It is more important than ever for the Office of Special
Counsel to have the tools it needs to protect the Federal workforce.
I urge my colleagues to support this bill.
Mr. Speaker, I reserve the balance of my time.
Mr. CHAFFETZ. Mr. Speaker, I yield myself such time as I may consume.
First, let me note in the last Congress this legislation passed out
of committee by regular order and passed the House on January 11, 2016.
The Office of Special Counsel is tasked with protecting Federal
employees from prohibited personnel practices, including reprisals on
whistleblowers. Whistleblowers are an indispensable part of helping
Congress identify waste, fraud, and abuse at Federal agencies.
Information provided by these brave folks can result in investigations
and legislation that changes the way we conduct ourselves in
government.
As the agency tasked with protecting whistleblowers, the OSC is vital
to make sure these individuals feel comfortable coming forward and that
they are offered protections. The agency has been busy. From 2013 to
2015, OSC's caseload increased from 4,500 cases open to more than
6,100. That increase coincided with multiple scandals within the
Veterans Administration, as Mr. Blum of Iowa has highlighted.
In fiscal year 2016, OSC projected nearly 2,500 cases from just the
VA--2,500 cases at just the Veterans Administration. This
reauthorization will ensure the OSC has adequate funding to continue
protecting whistleblowers in the VA and other agencies as well. The
majority of the OSC funding goes directly to hiring employees who work
to protect whistleblowers.
{time} 1330
The bill also makes substantive improvements to current law to ensure
the OSC can carry out its mission more effectively. Those reforms cover
a few areas, ensuring agencies cooperate with the OSC, clarifying OSC's
investigative procedures and making sure Congress receives clear
information on whistleblower reprisal throughout the Federal
Government.
With this bill, the OSC has clear authority to access agency records
and to conduct its investigations. For its part, the OSC must treat
those records in the same manner of confidentiality as the agency
would, alleviating concerns about disclosure of sensitive information.
The bill also gives OSC needed flexibility to focus on claims that
deserve our attention. It will allow the agency to terminate
duplicative claims already being pursued by the Merit Systems
Protection Board and claims that
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exceed statutory timeframes. Agencies will also be required to submit
reports detailing what actions they take as a result of these OSC
investigations--something in Congress that we should be paying
attention to. This reporting provision requires agencies to admit any
failures in holding people accountable and gives Congress much-needed
transparency.
Finally, the bill codifies OSC's practice under the current special
counsel of disclosing to Congress results and statistics. Codifying
this transparency ensures the practice will continue and allow for
easier oversight of these activities.
In order to help protect the whistleblowers and reform the Federal
agencies, I would urge our colleagues to vote ``yes'' on H.R. 69.
Mr. Speaker, I reserve the balance of my time.
Mr. CLAY. Mr. Speaker, I yield 3 minutes to the gentleman from
Virginia (Mr. Connolly), who is the ranking member of the Government
Operations Subcommittee.
Mr. CONNOLLY. Mr. Speaker, again, I thank my friend, Mr. Clay, for
his leadership and for his kindness.
Mr. Speaker, I rise today in support of the Thoroughly Investigating
Retaliation Against Whistleblowers Act--a mouthful, but it captures
what we are trying to do.
I certainly appreciate Mr. Blum's efforts to advance legislation that
authorizes the Office of Special Counsel and protects whistleblowers in
the Federal Government, an effort the Oversight and Government Reform
Committee strives to promote when we are at our best on a bipartisan
basis, and I am proud to be an original cosponsor of the bill.
I welcome consideration of this bill which would reaffirm Congress'
commitment to whistleblowers, upholding the Oversight and Government
Reform Committee's obligation to protect those whistleblowers that help
identify mismanagement, waste, and fraud at Federal agencies and to
support the oversight work of Congress. That is Congress at its best.
With the enactment of the Whistleblower Protection Act of 1989, OSC
became an independent agency within the executive branch. Its mission
is to safeguard the merit system of protecting Federal employees from
prohibitive personnel practices, especially reprisal from
whistleblowing. OSC provides employees a mechanism for disclosing
wrongdoing in government agencies and provides advice on the Hatch Act,
which restricts political activity by government employees generally.
OSC enforces employment rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994 for Federal employees
who serve or have served in the uniformed services. Congress last
reauthorized OSC for the period 2003 to 2007. Due in part to Congress'
emphasis on transparency in government, OSC has experienced significant
growth in its caseload since its last reauthorization. In the past 5
years, that caseload has increased, Mr. Speaker, by 58 percent.
This bill reauthorizes the agency from 2016 through 2020 and makes
several important changes to assist OSC in carrying out its vital
mission. The bill codifies OSC's current practice of providing
important performance metrics in its annual reports to the Congress and
requires additional metrics to support congressional oversight of its
effectiveness.
Last Congress, this bill was successfully passed out of our committee
on, I believe, a unanimous basis. I urge my colleagues to continue
Congress' longstanding tradition of support for oversight,
accountability, whistleblower protection, and transparency, and vote in
the affirmative for the Thoroughly Investigating Retaliation Against
Whistleblowers Act.
Mr. CLAY. Mr. Speaker, I have no further speakers, and I would just
urge the body to adopt the legislation.
I yield back the balance of my time.
Mr. CHAFFETZ. Mr. Speaker, I urge the passage of this bill, H.R. 69.
We have had four good champions led by Mr. Blum of Iowa in our
committee who have helped put this together: Mr. Meadows of North
Carolina, Mr. Connolly of Virginia, and Mr. Cummings, the ranking
member out of Maryland. All four have come together as original
cosponsors here in the 115th Congress.
Mr. Speaker, I urge its passage, and I yield back the balance of my
time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Utah (Mr. Chaffetz) that the House suspend the rules and
pass the bill, H.R. 69.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________