[Congressional Record Volume 163, Number 130 (Tuesday, August 1, 2017)]
[Senate]
[Pages S4687-S4694]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017
Mr. PORTMAN. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 93, S. 582.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 582) to reauthorize the Office of Special
Counsel, and for other purposes.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Homeland Security and
Governmental Affairs, with amendments, as follows:
(The parts of the bill intended to be stricken are shown in boldface
brackets and the parts of the bill intended to be inserted are shown in
italics.)
S. 582
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 2017''.
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) Except as provided in subparagraph (B), the
Special Counsel, in carrying out this subchapter, is
authorized to--
``(i) have timely access to all records, data, reports,
audits, reviews, documents, papers, recommendations, or other
material available to the applicable agency that relate to an
investigation, review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this title; or
``(II) section 4324(a) of title 38;
``(ii) 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) require, during an investigation, review, or
inquiry of an agency, the agency to provide to the Special
Counsel any record or other information that relates to an
investigation, review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this title; or
``(II) section 4324(a) of title 38.
``(B)(i) The authorization of the Special Counsel under
subparagraph (A) shall not apply with respect to any entity
that is an element of the intelligence community, as defined
in section 3 of the National Security Act of 1947 (50 U.S.C.
3003), unless the Special Counsel is investigating, or
otherwise carrying out activities relating to the enforcement
of, an action under subchapter III of chapter 73.
``(ii) The Attorney General or an Inspector General may
withhold from the Special Counsel material described in
subparagraph (A) if--
``(I) disclosing the material could reasonably be expected
to interfere with a criminal investigation or prosecution
that is ongoing as of the date on which the Special Counsel
submits a request for the material; and
``(II) the Attorney General or the Inspector General, as
applicable, submits to the Special Counsel a written report
that describes--
``(aa) the material being withheld; and
``(bb) the reason that the material is being withheld.
``(C)(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. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Agency Responsibilities.--Section 2302 of title 5,
United States Code, is amended 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 2017; 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.
[[Page S4688]]
``(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).''.
(b) Training for Supervisors.--
(1) Definitions.--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) of title 5, United States Code, without regard to
whether any other provision of that title is applicable to
the entity; and
(B) the term ``whistleblower protections'' has the meaning
given the term in section 2302(c)(1)(B) of title 5, United
States Code, as amended by subsection (a).
(2) Training required.--The head of each agency, in
consultation with the Special Counsel and the Inspector
General of that agency (or, in the case of an agency that
does not have an Inspector General, the senior ethics
official of that agency), shall provide the training
described in paragraph (3).
(3) Training described.--The training described in this
paragraph shall--
(A) cover the manner in which the agency shall respond to a
complaint alleging a violation of whistleblower protections
that are available to employees of the agency; and
(B) be provided--
(i) to each employee of the agency who--
(I) is appointed to a supervisory position in the agency;
and
(II) before the appointment described in subclause (I), had
not served in a supervisory position in the agency; and
(ii) on an annual basis to all employees of the agency who
serve in supervisory positions in the agency.
(c) Information on Appeal Rights.--
(1) In general.--Any notice provided to an employee under
section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1)
of title 5, United States Code, shall include detailed
information with respect to--
(A) the right of the employee to appeal an action brought
under the applicable section;
(B) the forums in which the employee may file an appeal
described in subparagraph (A); and
(C) any limitations on the rights of the employee that
would apply because of the forum in which the employee
decides to file an appeal.
(2) Development of information.--The information described
in paragraph (1) shall be developed by the Director of the
Office of Personnel Management, in consultation with the
Special Counsel, the Merit Systems Protection Board, and the
Equal Employment Opportunity Commission.
SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS.
(a) Prohibited Personnel Practices.--Section 2302 of title
5, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (9)--
(i) in subparagraph (C), by inserting ``(or any other
component responsible for internal investigation or review)''
after ``Inspector General''; and
(ii) in subparagraph (D), by inserting ``, rule, or
regulation'' after ``law'';
(B) in paragraph (12), by striking ``or'' at the end;
(C) in paragraph (13), by striking the period at the end
and inserting ``; or''; and
(D) by inserting after paragraph (13) the following:
``(14) access the medical record of another employee or an
applicant for employment as a part of, or otherwise in
furtherance of, any conduct described in paragraphs (1)
through (13).''; and
(2) in subsection (f)--
(A) in paragraph (1)--
(i) in subparagraph (E), by striking ``or'' at the end;
(ii) by redesignating subparagraph (F) as subparagraph (G);
and
(iii) by inserting after subparagraph (E) the following:
``(F) the disclosure was made before the date on which the
individual was appointed or applied for appointment to a
position; or''; and
(B) by striking paragraph (2) and inserting the following:
``(2) If a disclosure is made during the normal course of
duties of an employee, the principal job function of whom is
to regularly investigate and disclose wrongdoing (in this
paragraph referred to as the `disclosing employee'), the
disclosure shall not be excluded from subsection (b)(8) if
the disclosing employee demonstrates that an employee who has
the authority to take, direct other individuals to take,
recommend, or approve any personnel action with respect to
the disclosing employee took, failed to take, or threatened
to take or fail to take a personnel action with respect to
the disclosing employee in reprisal for the disclosure made
by the disclosing employee.''.
(b) 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''; and
(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 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 findings of the head of the agency appear
reasonable; and
``(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) that the head of the agency shall submit to the
Special Counsel within a period of time specified by the
Special Counsel.''.
(c) Transfer Requests During Stays.--
(1) Priority granted.--Section 1214(b)(1) of title 5,
United States Code, is amended by adding at the end the
following:
``(E) If the Board grants a stay under subparagraph (A),
the head of the agency employing the employee who is the
subject of the action shall give priority to a request for a
transfer submitted by the employee.''.
(2) Probationary employees.--Section 1221 of title 5,
United States Code, is amended by adding at the end the
following:
``(k) If the Board grants a stay under subsection (c) and
the employee who is the subject of the action is in
probationary status, the head of the agency employing the
employee shall give priority to a request for a transfer
submitted by the employee.''.
(d) 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 in section
2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of
section 2302(b)(9), [even if no] without regard to whether a
personnel action, as defined in section 2302(a)(2)(A), is
taken [or not taken.]''.
SEC. 5. SUICIDE BY EMPLOYEES.
(a) Definitions.--In this section--
(1) the term ``agency'' means any entity the employees of
which are covered by paragraphs (8) and (9) of section
2302(b) of title 5, United States Code, without regard to
whether any other provision of that title is applicable to
the entity; and
(2) the term ``personnel action'' has the meaning given the
term in section 2302(a)(2)(A) of title 5, United States Code.
(b) Referral.--
(1) In general.--The head of an agency shall refer to the
Special Counsel, along with any information known to the
agency regarding the circumstances described in paragraph
(2), any instance in which the head of the agency has
information indicating that an employee of the agency
committed suicide.
(2) Information.--The circumstances described in this
paragraph are as follows:
(A) Before the death of an employee described in paragraph
(1), the employee made a disclosure of information that
reasonably evidences--
(i) a violation of a law, rule, or regulation;
(ii) gross mismanagement;
(iii) a gross waste of funds;
(iv) an abuse of authority; or
(v) a substantial and specific danger to public health or
safety.
(B) After a disclosure described in subparagraph (A), a
personnel action was taken with respect to the employee who
made the disclosure.
(c) Office of Special Counsel Review.--Upon receiving a
referral under subsection (b)(1), the Special Counsel shall--
(1) examine whether a personnel action was taken with
respect to an employee because of a disclosure described in
subsection (b)(2)(A); and
(2) take any action that the Special Counsel determines is
appropriate under subchapter II of chapter 12 of title 5,
United States Code.
SEC. 6. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN
PERFORMANCE APPRAISALS.
(a) Establishment of Systems.--Section 4302 of title 5,
United States Code, is amended--
[[Page S4689]]
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) 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--
``(A) principles for the protection of whistleblowers, such
as the degree to which supervisory employees--
``(i) respond constructively when employees of the agency
make disclosures described in subparagraph (A) or (B) of
section 2302(b)(8);
``(ii) take responsible actions to resolve the disclosures
described in clause (i); and
``(iii) foster an environment in which employees of the
agency feel comfortable making disclosures described in
[subparagraph (A)] clause (i) to supervisory employees or
other appropriate authorities; and
``(B) for each supervisory employee--
``(i) whether the agency entered into an agreement with an
individual who alleged that the supervisory employee
committed a prohibited personnel practice; and
``(ii) if the agency entered into an agreement described in
clause (i), the number of instances in which the agency
entered into such an agreement with respect to the
supervisory employee.
``(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 `prohibited personnel practice' has the
meaning given the term in section 2302(a)(1);
``(C) 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
``(D) the term `whistleblower' means an employee who makes
a disclosure described in section 2302(b)(8).''.
(b) Criteria for Performance Appraisals.--Section 4313 of
title 5, United States Code, is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(6) protecting whistleblowers, as described in section
4302(b)(2).''.
(c) 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 (a).
(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 (a);
(B) the reasons for the determinations described in
subparagraph (A); and
(C) each performance-based or corrective action taken by
the agency in response to a determination under subparagraph
(A).
(d) 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. 7. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION
AGAINST WHISTLEBLOWERS.
(a) In General.--Subchapter II of chapter 75 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 7515. Discipline of supervisors based on retaliation
against whistleblowers
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) has the meaning given the term in section
2302(a)(2)(C), without regard to whether any other provision
of this chapter is applicable to the entity; and
``(B) does not include any entity that is an element of the
intelligence community, as defined in section 3 of the
National Security Act of 1947 (50 U.S.C. 3003);
``(2) the term `prohibited personnel action' means taking
or failing to take an action in violation of paragraph (8) or
(9) of section 2302(b) against an employee of an agency; and
``(3) the term `supervisor' means an employee who would be
a supervisor, as defined in section 7103(a), if the entity
employing the employee was an agency.
``(b) Proposed Disciplinary Actions.--
``(1) In general.--If the head of the agency in which a
supervisor is employed, an administrative law judge, the
Merit Systems Protection Board, the Special Counsel, a judge
of the United States, or the Inspector General of the agency
in which a supervisor is employed has determined that the
supervisor committed a prohibited personnel action, the head
of the agency in which the supervisor is employed, consistent
with the procedures required under paragraph (2)--
``(A) for the first prohibited personnel action committed
by the supervisor--
``(i) shall propose suspending the supervisor for a period
that is not less than 3 days; and
``(ii) may propose an additional action determined
appropriate by the head of the agency, including a reduction
in grade or pay; and
``(B) for the second prohibited personnel action committed
by the supervisor, shall propose removing the supervisor.
``(2) Procedures.--
``(A) Notice.--A supervisor against whom an action is
proposed to be taken under paragraph (1) is entitled to
written notice that--
``(i) states the specific reasons for the proposed action;
and
``(ii) informs the supervisor about the right of the
supervisor to review the material that constitutes the
factual support on which the proposed action is based.
``(B) Answer and evidence.--
``(i) In general.--A supervisor who receives notice under
subparagraph (A) may, not later than 14 days after receiving
the notice, submit an answer and furnish evidence in support
of that answer.
``(ii) No evidence furnished; insufficient evidence
furnished.--If, after the end of the 14-day period described
in clause (i), a supervisor does not furnish any evidence as
described in that clause, or if the head of the agency in
which the supervisor is employed determines that the evidence
furnished by the supervisor is insufficient, the head of the
agency shall carry out the action proposed under subparagraph
(A) or (B) of paragraph (1).
``(C) Scope of procedures.--An action carried out under
this section--
``(i) except as provided in clause (ii), shall be subject
to the same requirements and procedures, including those with
respect to an appeal, as an action under section 7503, 7513,
or 7543; and
``(ii) shall not be subject to--
``(I) paragraphs (1) and (2) of section 7503(b);
``(II) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7513; and
``(III) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7543.
``(3) Non-delegation.--If the head of an agency is
responsible for determining whether a supervisor has
committed a prohibited personnel action for purposes of
paragraph (1), the head of the agency may not delegate that
responsibility.''.
(b) Technical and Conforming Amendment.--The table of
sections for subchapter II of chapter 75 of title 5, United
States Code, is amended by inserting after the item relating
to section 7514 the following:
``7515. Discipline of supervisors based on retaliation against
whistleblowers.''.
SEC. 8. 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] Notwithstanding any other provision of
this section, 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. 9. 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 one
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
[[Page S4690]]
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. 10. 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 and 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;
``(10) the number of prohibited personnel practice
complaints that resulted in a favorable action for the
complainant, other than a stay or an extension of a stay,
organized by actions in--
``(A) complaints dealing with reprisals against
whistleblowers; and
``(B) all other complaints; and
``(11) the number of prohibited personnel practice
complaints that were resolved by an agreement between an
agency and an individual, organized by agency and agency
components, in--
``(A) complaints dealing with reprisals against
whistleblowers; and
``(B) all other complaints;
``(12) 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(a)(1); and
``(13) 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);''.
(c) Notice of Complaint Settlements.--Section 1217 of title
5, United States Code, is amended--
(1) by striking ``The Special Counsel'' and inserting:
``(a) In General.--The Special Counsel''; and
(2) by adding at the end the following:
``(b) Additional Report Required.--
``(1) In general.--If an allegation submitted to the
Special Counsel is resolved by an agreement between an agency
and an individual, the Special Counsel shall submit to
Congress and each congressional committee with jurisdiction
over the agency a report regarding the agreement.
``(2) Contents.--The report required under paragraph (1)
shall identify, with respect to an agreement described in
that paragraph--
``(A) the agency that entered into the agreement;
``(B) the position and employment location of the employee
who submitted the allegation that formed the basis of the
agreement;
``(C) the position and employment location of any employee
alleged by an employee described in subparagraph (B) to have
committed a prohibited personnel practice, as defined in
section 2302(a)(1);
``(D) a description of the allegation described in
subparagraph (B); and
``(E) whether the agency that entered into the agreement
has agreed to pursue any disciplinary action as a result of
the allegation described in subparagraph (B).''.
SEC. 11. 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 first full fiscal year after the date of
enactment of this Act, 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. 12. REGULATIONS.
(a) In General.--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--
(1) the functions of the Special Counsel under subchapter
II of chapter 12 of title 5, United States Code, including
regulations that are necessary to carry out sections 1213,
1214, and 1215 of that title; and
(2) any functions of the Special Counsel that are required
because of the amendments made by this Act.
(b) Publication.--Any regulations prescribed under
subsection (a) shall be published in the Federal Register.
SEC. 13. 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
``2017 through 2022''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect as though enacted on September 30, 2015.
Mr. PORTMAN. Mr. President, I ask unanimous consent that the
committee-reported amendments be considered, the Johnson amendment at
the desk be considered and agreed to, the committee-reported
amendments, as amended, be agreed to, the bill, as amended, be
considered read a third time and passed, and the motion to reconsider
be considered made and laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 746) was agreed to, as follows:
(Purpose: To permit an Inspector General to withhold certain material
from the Office of Special Counsel if the material is derived from, or
pertains to, intelligence activities)
On page 3, strike lines 10 through 23 and insert the
following:
``(ii) An Inspector General may withhold from the Special
Counsel material described in subparagraph (A) if the
Inspector General determines that the material contains
information derived from, or pertaining to, intelligence
activities.
``(iii) The Attorney General or an Inspector General may
withhold from the Special Counsel material described in
subparagraph (A) if--
``(I)(aa) disclosing the material could reasonably be
expected to interfere with a criminal investigation or
prosecution that is ongoing as of the date on which the
Special Counsel submits a request for the material; or
``(bb) the material--
``(AA) may not be disclosed pursuant to a court order; or
``(BB) has been filed under seal under section 3730 of
title 31; and
``(II) the Attorney General or the Inspector General, as
applicable, submits to the Special Counsel a written report
that describes--
``(aa) the material being withheld; and
``(bb) the reason that the material is being withheld.
On page 33, after line 8, add the following:
SEC. 14. TECHNICAL AMENDMENT.
Section 1214(b)(1)(B)(ii) of title 5, United States Code,
as amended by section 1 of the Act entitled ``An Act to amend
section 1214 of title 5, United States Code, to provide for
stays during a period that the Merit Systems Protection Board
lacks a quorum.'' (S. 1083, 115th Congress, 1st Session), is
amended by striking ``who was appointed, by and with the
advice and consent of the Senate,''.
The committee-reported amendments, as amended, were agreed to.
The bill (S. 582), as amended, was ordered to be engrossed for a
third reading, was read the third time, and passed, as follows:
S. 582
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S4691]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Office of Special Counsel
Reauthorization Act of 2017''.
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) Except as provided in subparagraph (B), the
Special Counsel, in carrying out this subchapter, is
authorized to--
``(i) have timely access to all records, data, reports,
audits, reviews, documents, papers, recommendations, or other
material available to the applicable agency that relate to an
investigation, review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this title; or
``(II) section 4324(a) of title 38;
``(ii) 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) require, during an investigation, review, or
inquiry of an agency, the agency to provide to the Special
Counsel any record or other information that relates to an
investigation, review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this title; or
``(II) section 4324(a) of title 38.
``(B)(i) The authorization of the Special Counsel under
subparagraph (A) shall not apply with respect to any entity
that is an element of the intelligence community, as defined
in section 3 of the National Security Act of 1947 (50 U.S.C.
3003), unless the Special Counsel is investigating, or
otherwise carrying out activities relating to the enforcement
of, an action under subchapter III of chapter 73.
``(ii) An Inspector General may withhold from the Special
Counsel material described in subparagraph (A) if the
Inspector General determines that the material contains
information derived from, or pertaining to, intelligence
activities.
``(iii) The Attorney General or an Inspector General may
withhold from the Special Counsel material described in
subparagraph (A) if--
``(I)(aa) disclosing the material could reasonably be
expected to interfere with a criminal investigation or
prosecution that is ongoing as of the date on which the
Special Counsel submits a request for the material; or
``(bb) the material--
``(AA) may not be disclosed pursuant to a court order; or
``(BB) has been filed under seal under section 3730 of
title 31; and
``(II) the Attorney General or the Inspector General, as
applicable, submits to the Special Counsel a written report
that describes--
``(aa) the material being withheld; and
``(bb) the reason that the material is being withheld.
``(C)(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. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Agency Responsibilities.--Section 2302 of title 5,
United States Code, is amended 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 2017; 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).''.
(b) Training for Supervisors.--
(1) Definitions.--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) of title 5, United States Code, without regard to
whether any other provision of that title is applicable to
the entity; and
(B) the term ``whistleblower protections'' has the meaning
given the term in section 2302(c)(1)(B) of title 5, United
States Code, as amended by subsection (a).
(2) Training required.--The head of each agency, in
consultation with the Special Counsel and the Inspector
General of that agency (or, in the case of an agency that
does not have an Inspector General, the senior ethics
official of that agency), shall provide the training
described in paragraph (3).
(3) Training described.--The training described in this
paragraph shall--
(A) cover the manner in which the agency shall respond to a
complaint alleging a violation of whistleblower protections
that are available to employees of the agency; and
(B) be provided--
(i) to each employee of the agency who--
(I) is appointed to a supervisory position in the agency;
and
(II) before the appointment described in subclause (I), had
not served in a supervisory position in the agency; and
(ii) on an annual basis to all employees of the agency who
serve in supervisory positions in the agency.
(c) Information on Appeal Rights.--
(1) In general.--Any notice provided to an employee under
section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1)
of title 5, United States Code, shall include detailed
information with respect to--
(A) the right of the employee to appeal an action brought
under the applicable section;
(B) the forums in which the employee may file an appeal
described in subparagraph (A); and
(C) any limitations on the rights of the employee that
would apply because of the forum in which the employee
decides to file an appeal.
(2) Development of information.--The information described
in paragraph (1) shall be developed by the Director of the
Office of Personnel Management, in consultation with the
Special Counsel, the Merit Systems Protection Board, and the
Equal Employment Opportunity Commission.
SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS.
(a) Prohibited Personnel Practices.--Section 2302 of title
5, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (9)--
(i) in subparagraph (C), by inserting ``(or any other
component responsible for internal investigation or review)''
after ``Inspector General''; and
(ii) in subparagraph (D), by inserting ``, rule, or
regulation'' after ``law'';
(B) in paragraph (12), by striking ``or'' at the end;
(C) in paragraph (13), by striking the period at the end
and inserting ``; or''; and
(D) by inserting after paragraph (13) the following:
``(14) access the medical record of another employee or an
applicant for employment as a part of, or otherwise in
furtherance of, any conduct described in paragraphs (1)
through (13).''; and
(2) in subsection (f)--
(A) in paragraph (1)--
(i) in subparagraph (E), by striking ``or'' at the end;
(ii) by redesignating subparagraph (F) as subparagraph (G);
and
(iii) by inserting after subparagraph (E) the following:
``(F) the disclosure was made before the date on which the
individual was appointed
[[Page S4692]]
or applied for appointment to a position; or''; and
(B) by striking paragraph (2) and inserting the following:
``(2) If a disclosure is made during the normal course of
duties of an employee, the principal job function of whom is
to regularly investigate and disclose wrongdoing (in this
paragraph referred to as the `disclosing employee'), the
disclosure shall not be excluded from subsection (b)(8) if
the disclosing employee demonstrates that an employee who has
the authority to take, direct other individuals to take,
recommend, or approve any personnel action with respect to
the disclosing employee took, failed to take, or threatened
to take or fail to take a personnel action with respect to
the disclosing employee in reprisal for the disclosure made
by the disclosing employee.''.
(b) 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''; and
(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 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 findings of the head of the agency appear
reasonable; and
``(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) that the head of the agency shall submit to the
Special Counsel within a period of time specified by the
Special Counsel.''.
(c) Transfer Requests During Stays.--
(1) Priority granted.--Section 1214(b)(1) of title 5,
United States Code, is amended by adding at the end the
following:
``(E) If the Board grants a stay under subparagraph (A),
the head of the agency employing the employee who is the
subject of the action shall give priority to a request for a
transfer submitted by the employee.''.
(2) Probationary employees.--Section 1221 of title 5,
United States Code, is amended by adding at the end the
following:
``(k) If the Board grants a stay under subsection (c) and
the employee who is the subject of the action is in
probationary status, the head of the agency employing the
employee shall give priority to a request for a transfer
submitted by the employee.''.
(d) 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 in section
2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of
section 2302(b)(9), without regard to whether a personnel
action, as defined in section 2302(a)(2)(A), is taken.''.
SEC. 5. SUICIDE BY EMPLOYEES.
(a) Definitions.--In this section--
(1) the term ``agency'' means any entity the employees of
which are covered by paragraphs (8) and (9) of section
2302(b) of title 5, United States Code, without regard to
whether any other provision of that title is applicable to
the entity; and
(2) the term ``personnel action'' has the meaning given the
term in section 2302(a)(2)(A) of title 5, United States Code.
(b) Referral.--
(1) In general.--The head of an agency shall refer to the
Special Counsel, along with any information known to the
agency regarding the circumstances described in paragraph
(2), any instance in which the head of the agency has
information indicating that an employee of the agency
committed suicide.
(2) Information.--The circumstances described in this
paragraph are as follows:
(A) Before the death of an employee described in paragraph
(1), the employee made a disclosure of information that
reasonably evidences--
(i) a violation of a law, rule, or regulation;
(ii) gross mismanagement;
(iii) a gross waste of funds;
(iv) an abuse of authority; or
(v) a substantial and specific danger to public health or
safety.
(B) After a disclosure described in subparagraph (A), a
personnel action was taken with respect to the employee who
made the disclosure.
(c) Office of Special Counsel Review.--Upon receiving a
referral under subsection (b)(1), the Special Counsel shall--
(1) examine whether a personnel action was taken with
respect to an employee because of a disclosure described in
subsection (b)(2)(A); and
(2) take any action that the Special Counsel determines is
appropriate under subchapter II of chapter 12 of title 5,
United States Code.
SEC. 6. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN
PERFORMANCE APPRAISALS.
(a) Establishment of Systems.--Section 4302 of title 5,
United States Code, is amended--
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) 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--
``(A) principles for the protection of whistleblowers, such
as the degree to which supervisory employees--
``(i) respond constructively when employees of the agency
make disclosures described in subparagraph (A) or (B) of
section 2302(b)(8);
``(ii) take responsible actions to resolve the disclosures
described in clause (i); and
``(iii) foster an environment in which employees of the
agency feel comfortable making disclosures described in
clause (i) to supervisory employees or other appropriate
authorities; and
``(B) for each supervisory employee--
``(i) whether the agency entered into an agreement with an
individual who alleged that the supervisory employee
committed a prohibited personnel practice; and
``(ii) if the agency entered into an agreement described in
clause (i), the number of instances in which the agency
entered into such an agreement with respect to the
supervisory employee.
``(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 `prohibited personnel practice' has the
meaning given the term in section 2302(a)(1);
``(C) 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
``(D) the term `whistleblower' means an employee who makes
a disclosure described in section 2302(b)(8).''.
(b) Criteria for Performance Appraisals.--Section 4313 of
title 5, United States Code, is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(6) protecting whistleblowers, as described in section
4302(b)(2).''.
(c) 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 (a).
(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 (a);
(B) the reasons for the determinations described in
subparagraph (A); and
(C) each performance-based or corrective action taken by
the agency in response to a determination under subparagraph
(A).
(d) 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. 7. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION
AGAINST WHISTLEBLOWERS.
(a) In General.--Subchapter II of chapter 75 of title 5,
United States Code, is amended by adding at the end the
following:
``Sec. 7515. Discipline of supervisors based on retaliation
against whistleblowers
``(a) Definitions.--In this section--
[[Page S4693]]
``(1) the term `agency'--
``(A) has the meaning given the term in section
2302(a)(2)(C), without regard to whether any other provision
of this chapter is applicable to the entity; and
``(B) does not include any entity that is an element of the
intelligence community, as defined in section 3 of the
National Security Act of 1947 (50 U.S.C. 3003);
``(2) the term `prohibited personnel action' means taking
or failing to take an action in violation of paragraph (8) or
(9) of section 2302(b) against an employee of an agency; and
``(3) the term `supervisor' means an employee who would be
a supervisor, as defined in section 7103(a), if the entity
employing the employee was an agency.
``(b) Proposed Disciplinary Actions.--
``(1) In general.--If the head of the agency in which a
supervisor is employed, an administrative law judge, the
Merit Systems Protection Board, the Special Counsel, a judge
of the United States, or the Inspector General of the agency
in which a supervisor is employed has determined that the
supervisor committed a prohibited personnel action, the head
of the agency in which the supervisor is employed, consistent
with the procedures required under paragraph (2)--
``(A) for the first prohibited personnel action committed
by the supervisor--
``(i) shall propose suspending the supervisor for a period
that is not less than 3 days; and
``(ii) may propose an additional action determined
appropriate by the head of the agency, including a reduction
in grade or pay; and
``(B) for the second prohibited personnel action committed
by the supervisor, shall propose removing the supervisor.
``(2) Procedures.--
``(A) Notice.--A supervisor against whom an action is
proposed to be taken under paragraph (1) is entitled to
written notice that--
``(i) states the specific reasons for the proposed action;
and
``(ii) informs the supervisor about the right of the
supervisor to review the material that constitutes the
factual support on which the proposed action is based.
``(B) Answer and evidence.--
``(i) In general.--A supervisor who receives notice under
subparagraph (A) may, not later than 14 days after receiving
the notice, submit an answer and furnish evidence in support
of that answer.
``(ii) No evidence furnished; insufficient evidence
furnished.--If, after the end of the 14-day period described
in clause (i), a supervisor does not furnish any evidence as
described in that clause, or if the head of the agency in
which the supervisor is employed determines that the evidence
furnished by the supervisor is insufficient, the head of the
agency shall carry out the action proposed under subparagraph
(A) or (B) of paragraph (1).
``(C) Scope of procedures.--An action carried out under
this section--
``(i) except as provided in clause (ii), shall be subject
to the same requirements and procedures, including those with
respect to an appeal, as an action under section 7503, 7513,
or 7543; and
``(ii) shall not be subject to--
``(I) paragraphs (1) and (2) of section 7503(b);
``(II) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7513; and
``(III) paragraphs (1) and (2) of subsection (b) and
subsection (c) of section 7543.
``(3) Non-delegation.--If the head of an agency is
responsible for determining whether a supervisor has
committed a prohibited personnel action for purposes of
paragraph (1), the head of the agency may not delegate that
responsibility.''.
(b) Technical and Conforming Amendment.--The table of
sections for subchapter II of chapter 75 of title 5, United
States Code, is amended by inserting after the item relating
to section 7514 the following:
``7515. Discipline of supervisors based on retaliation against
whistleblowers.''.
SEC. 8. TERMINATION OF CERTAIN INVESTIGATIONS BY THE OFFICE
OF SPECIAL COUNSEL.
Section 1214(a) of title 5, United States Code, is amended
by adding at the end the following:
``(6)(A) Notwithstanding any other provision of this
section, 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 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. 9. 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 one
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. 10. 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 and 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;
``(10) the number of prohibited personnel practice
complaints that resulted in a favorable action for the
complainant, other than a stay or an extension of a stay,
organized by actions in--
``(A) complaints dealing with reprisals against
whistleblowers; and
``(B) all other complaints; and
``(11) the number of prohibited personnel practice
complaints that were resolved by an agreement between an
agency and an individual, organized by agency and agency
components, in--
``(A) complaints dealing with reprisals against
whistleblowers; and
``(B) all other complaints;
``(12) 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(a)(1); and
``(13) 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);''.
(c) Notice of Complaint Settlements.--Section 1217 of title
5, United States Code, is amended--
(1) by striking ``The Special Counsel'' and inserting:
``(a) In General.--The Special Counsel''; and
(2) by adding at the end the following:
``(b) Additional Report Required.--
``(1) In general.--If an allegation submitted to the
Special Counsel is resolved by
[[Page S4694]]
an agreement between an agency and an individual, the Special
Counsel shall submit to Congress and each congressional
committee with jurisdiction over the agency a report
regarding the agreement.
``(2) Contents.--The report required under paragraph (1)
shall identify, with respect to an agreement described in
that paragraph--
``(A) the agency that entered into the agreement;
``(B) the position and employment location of the employee
who submitted the allegation that formed the basis of the
agreement;
``(C) the position and employment location of any employee
alleged by an employee described in subparagraph (B) to have
committed a prohibited personnel practice, as defined in
section 2302(a)(1);
``(D) a description of the allegation described in
subparagraph (B); and
``(E) whether the agency that entered into the agreement
has agreed to pursue any disciplinary action as a result of
the allegation described in subparagraph (B).''.
SEC. 11. 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 first full fiscal year after the date of
enactment of this Act, 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. 12. REGULATIONS.
(a) In General.--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--
(1) the functions of the Special Counsel under subchapter
II of chapter 12 of title 5, United States Code, including
regulations that are necessary to carry out sections 1213,
1214, and 1215 of that title; and
(2) any functions of the Special Counsel that are required
because of the amendments made by this Act.
(b) Publication.--Any regulations prescribed under
subsection (a) shall be published in the Federal Register.
SEC. 13. 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
``2017 through 2022''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect as though enacted on September 30, 2015.
SEC. 14. TECHNICAL AMENDMENT.
Section 1214(b)(1)(B)(ii) of title 5, United States Code,
as amended by section 1 of the Act entitled ``An Act to amend
section 1214 of title 5, United States Code, to provide for
stays during a period that the Merit Systems Protection Board
lacks a quorum.'' (S. 1083, 115th Congress, 1st Session), is
amended by striking ``who was appointed, by and with the
advice and consent of the Senate,''.
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