[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

[[Page H72]]

(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

[[Page H73]]

     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

[[Page H74]]

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.

                          ____________________