[Senate Report 115-196]
[From the U.S. Government Publishing Office]
Calendar No. 286
115th Congress } { Report
SENATE
1st Session } { 115-196
_______________________________________________________________________
WHISTLEBLOWER PROTECTION COORDINATION ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1869
TO REAUTHORIZE AND RENAME THE POSITION OF
WHISTLEBLOWER OMBUDSMAN TO BE THE WHISTLEBLOWER PROTECTION COORDINATOR
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 14, 2017.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2017
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Catharine A. Bailey, Director of Governmental Affairs
Courtney J. Allen Counsel
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 286
115th Congress } { Report
SENATE
1st Session } { 115-196
======================================================================
WHISTLEBLOWER PROTECTION COORDINATION ACT
_______
December 14, 2017.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1869]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1869) to
reauthorize and rename the position of Whistleblower Ombudsman
to be the Whistleblower Protection Coordinator, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6
I. Purpose and Summary
The purpose of S. 1869, the Whistleblower Protection
Coordination Act, is to permanently reauthorize and change the
name of the whistleblower protection program established by the
Whistleblower Protection Enhancement Act of 2012 (WPEA) from
the Whistleblower Protection Ombudsman (Ombudsman) to the
Whistleblower Protection Coordinator (Coordinator). The bill
expands the role of the Coordinator to assist agency Inspectors
General (OIG) with handling and examining whistleblower
disclosures and communications and coordination between the
agency OIG and other offices investigating whistleblower
disclosures and whistleblower retaliation.
II. Background and the Need for Legislation
In 2012, Congress created the Ombudsman in the WPEA.\1\
This law required each agency OIG to ``appoint a Whistleblower
Protection Ombudsman who shall educate employees about
prohibitions on retaliation for protected disclosures and who
have made or are contemplating making a protected disclosure
about the rights and remedies against retaliation for protected
disclosures.''\2\ Congress created the Ombudsman ``to ensure
that employees are aware of their rights under the
[Whistleblower Protection Act (WPA)] and avenues for
redress.''\3\ The authority for the Ombudsman expired on
November 27, 2017.\4\
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\1\Whistleblower Protection Enhancement Act, Pub. L. No. 112-199,
1117, 126 Stat. 1465, 1475 (2012).
\2\Id.
\3\S. Rep. 112-155, at 32 (2012).
\4\Whistleblower Protection Enhancement Act, supra note 1.
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The role of the Ombudsman at each agency OIG was to:
provide the agency and the employees with an
intermediary to ensure that supervisors and leaders
within the agency, as well as employees, are aware of
prohibited retaliatory actions and employee rights
under the WPA. In this intermediary role, the ombudsman
could also help provide recommendations for resolving
problems between an individual and the employer before
any prohibited personnel practices are taken in
violation of the WPA.\5\
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\5\S. Rep. 112-155, at 32 (2012).
Congress expressly prohibited the Ombudsman from acting as
``a legal representative, agent, or advocate for an
employee.''\6\
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\6\Whistleblower Protection Enhancement Act, supra note 1.
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Government officials and whistleblower advocates recognize
the Ombudsman as an important tool in whistleblower protection
at Federal agencies and recommend its permanent
reauthorization.\7\ According to the Department of Justice
(DOJ) OIG Ombudsman:
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\7\Five Years Later: A Review of the Whistleblower Protection
Enhancement Act: Hearing Before the H. Subcomm. on Gov't Operations of
the H. Comm. on Oversight and Gov't Reform, 115th Cong. (2017)
[hereinafter House Hearing].
Ensuring that whistleblowers are comfortable,
informed, and protected in coming forward is,
therefore, entirely consistent with the OIG's core
mission of detecting and deterring waste, fraud, abuse,
and corruption, and the OIG Whistleblower Ombudspersons
have played an important role in ensuring that they
have the information necessary to enable this to
occur.\8\
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\8\Id (statement of Robert Storch, Deputy Inspector General, U.S.
Dep't of Justice), available at https://oig.justice.gov/testimony/
t170201a.pdf.
Furthermore, the U.S. Office of Special Counsel (OSC) found
the Ombudsman ``has led to more collaboration and information
sharing among the various Inspectors General and with OSC.
Increased cooperation allows our related offices to share best
practices for investigation techniques and training, and to
identify and resolve issues quickly and effectively.''\9\ The
Government Accountability Project considers the Ombudsman to be
``an unqualified success.''\10\
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\9\Id (statement of Eric Bachman, Deputy Special Counsel, U.S. Off.
of Special Counsel), available at https://oversight.house.gov/wp-
content/uploads/2017/02/Bachman-OSC-Statement-Whistleblower-2-1.pdf
\10\Id (statement of Tom Devine, Government Accountability
Project), available at https://oversight.house.gov/wp-content/uploads/
2017/02/Devine-GAP-Statement-Whistleblower-2-1.pdf.
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While the Ombudsman is fulfilling its intent of educating
and assisting Federal employees on whistleblower protections,
areas of improvement have been identified in the five years
since its establishment. First, the DOJ OIG Ombudsman expressed
concern that:
[T]he work we do under the WPEA generally does not
include much of what is often done by traditional
ombudsmen, and indeed, some such things might be seen
as inconsistent with our independent role and
consideration of complaints as OIGs. Given the current
title, there have been some concerns expressed that
some employees may be confused and expect us to perform
such functions, even though the WPEA specifically
provides that the ombudsman shall not act as a legal
representative, agent, or advocate.\11\
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\11\House Hearing, supra note 8.
The word ``ombudsman'' is defined as ``a government
official appointed to receive and investigate complaints made
by individual against abuses or capricious acts of public
officials'' or ``one that investigates, reports on, and helps
settle complaints.''\12\ However, the role of the Ombudsman, as
envisioned by the WPEA, is more educational than investigatory,
so the name of the position may be misleading to
whistleblowers. It is possible for Federal employees to have
difficulty understanding the role of the Ombudsman due to the
title of the position.
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\12\Ombudsman Definition, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/ombudsman (last visited Oct. 19, 2017).
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According to the DOJ OIG Ombudsman, there have been growing
numbers of whistleblower retaliation cases in OIG offices.\13\
The DOJ OIG Ombudsman explained that whistleblower retaliation
investigations, as well as whistleblower protection educational
activities and outreach, ``are resource intensive, and our
ability to fulfill these responsibilities and do so in a timely
fashion is significantly impacted by the limitations on our
available staffing and resources.''\14\ He also predicted that
whistleblower retaliation investigations increase ``as
[whistleblower] protections are expanded and made permanent,
and as there is additional information disseminated by OIGs and
others about whistleblower rights and protections.''\15\ As
investigations increase and OIG resources are stretched thin,
it is even more important to ensure that whistleblowers have
access to a dedicated coordinator who can explain their rights
and help them understand the process for redress of their
grievances.
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\13\House Hearing, supra note 8.
\14\Id.
\15\Id.
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The Whistleblower Protection Coordination Act will make
permanent this important role for whistleblower protection in
agencies across the Federal government and address issues
identified during the initial implementation of the Ombudsman
role. The bill will change the name of the Ombudsman to
Coordinator in order to reduce confusion about the
Coordinator's authorities and responsibilities. The bill will
also require the Coordinator to assist the agency OIG to timely
and efficiently investigate whistleblower disclosures and
whistleblower retaliation claims. The Coordinator will also be
responsible for liaising between agency OIGs, OSC, Congress, or
any other Federal entity that is investigating a whistleblower
disclosure or retaliation claim in order to ensure the most
efficient use of staff and resources. The bill also requires
the Council of Inspectors General on Integrity and Efficiency
(CIGIE) to develop best practices for the Coordinator to follow
in carrying out these responsibilities.
The Committee notes that this bill seeks information on
whether a settlement exists. It does not seek to publish any
personal information or anything that would identify
individuals involved in the matter or breach a confidentiality
agreement.
III. Legislative History
S. 1869, the Whistleblower Protection Coordination Act, was
introduced on September 27, 2017, by Senator Charles Grassley,
Ranking Member Claire McCaskill, Chairman Ron Johnson and
Senator Ron Wyden. The bill was referred to the Committee on
Homeland Security and Governmental Affairs. The Committee
considered S. 1869 at a business meeting on October 4, 2017.
The Committee ordered the bill reported favorably by voice
vote en bloc with Senators Johnson, Lankford, Daines,
McCaskill, Tester, Heitkamp, Hassan, and Harris present.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Whistleblower Protection Coordination Act of 2017.''
Section 2. Reauthorization
This section reauthorizes, renames, and adds additional
responsibilities for the whistleblower protection program under
the Inspector General Act of 1978.
Subsection (a) renames the Ombudsman to the Coordinator and
requires the Coordinator to have direct access to the agency
OIG. This subsection charges the Coordinator with informing
employees of their available options to file a whistleblower
retaliation complaint and of any available alternative dispute
resolution mechanisms and potential relief. The Coordinator is
also required to assist the agency OIG to timely and
appropriately investigate whistleblower disclosures and
retaliation complaints. This subsection also requires the
Coordinator to assist the agency OIG in communicating and
coordinating with the OSC, CIGIE, the agency, Congress, and any
other relevant entity to timely and appropriately investigate
whistleblower disclosures and retaliation complaints.
Subsection (b) requires CIGIE to assist the Coordinator and
to develop best practices for coordinating and communicating
between agencies to timely and efficiently handle and
investigate whistleblower disclosures, allegations of
whistleblower retaliation, and other matters in the
implementation and administration of whistleblower protection
laws.
Subsection (c) adds requirements to the semiannual reports
submitted by agency OIGs. This subsection requires these
reports to include a detailed description of instances of
whistleblower retaliation, any consequences imposed on the
official determined to have committed the retaliation, and any
settlement agreements the agency entered into with the official
determined to have committed the retaliation.
Subsection (d) is a technical change from ``Ombudsman'' to
``Coordinator'' in a different federal law that requires
training on the handling of whistleblower complaints.
Subsection (e) permanently reauthorizes the Whistleblower
Protection Coordinator.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
December 5, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1869, the
Whistleblower Protection Coordination Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
S. 1869--Whistleblower Protection Coordination Act
S. 1869 would permanently extend the authority of all
Inspector General (IG) offices to hire whistleblower protection
ombudsmen. The specific authority to hire such employees has
expired. Each of the 72 IG offices of the federal government
currently have such an ombudsman. The bill also would create
additional responsibilities for the ombudsmen and require
additional reporting by IGs, agencies, and the Council of the
Inspectors General on Integrity and Efficiency (CIGIE).
Information from CIGIE and some IGs indicates that most of
the additional responsibilities and reporting requirements in
the bill would not impose a significant administrative burden.
In addition, CBO expects that much of the work of the ombudsmen
(whose job title would change to whistleblower protection
coordinator under the bill) would be continued under current
law. Therefore, CBO estimates that implementing S. 1869 would
cost less than $500,000 annually; such spending would be
subject to the availability of appropriated funds.
Enacting S. 1869 could affect direct spending by agencies
that are not funded through annual appropriations; therefore,
pay-as-you-go procedures apply. CBO estimates, however, that
any net increase in spending by those agencies would be
negligible. Enacting the bill would not affect revenues.
CBO estimates that enacting S. 1869 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 1869 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
APPENDIX
* * * * * * *
INSPECTOR GENERAL ACT OF 1978
* * * * * * *
SEC. 3. APPOINTMENT OF INSPECTOR GENERAL; SUPERVISION; REMOVAL;
POLITICAL ACTIVITIES; APPOINTMENT OF ASSISTANT
INSPECTOR GENERAL FOR AUDITING AND ASSISTANT
INSPECTOR GENERAL FOR INVESTIGATIONS.
(a) * * *
* * * * * * *
(d) * * *
(1) * * *
(A) * * *
(B) * * *
(C) designate a Whistleblower Protection
[Ombudsman who shall educate agency employees--
] Coordinator who shall--
(i) educate agency employees--
[i] (I) about prohibitions
[on retaliation] against
retaliation for protected
disclosures; and
[ii] (II) who have made or
are contemplating making a
protected disclosure about the
rights and remedies against
retaliation for protected
disclosures[.]; including--
(aa) the means by
which employees may
seek review of any
allegation of reprisal,
including the roles of
the Office of Inspector
General, the Office of
Special Counsel, the
Merit Systems
Protection Board, and
any other relevant
entities; and
(bb) general
information about the
timeliness of such
cases, the availability
of any alternative
dispute mechanisms, and
avenues for potential
relief.
(ii) assist the Inspector General in
promoting the timely and appropriate
handling and consideration of protected
disclosures and allegations of
reprisal, to the extent practicable, by
the Inspector General; and
(iii) assist the Inspector General in
facilitating communication and
coordination with the Special Counsel,
the Council of the Inspectors General
on Integrity and Efficiency, the
agency, Congress, and any other
relevant entity regarding the timely
and appropriate handling and
consideration of protected disclosures,
allegations of reprisal, and general
matters regarding the implementation
and administration of whistleblower
protection laws, rules, and
regulations.
(2) The Whistleblower Protection [Ombudsman]
Coordinator shall not act as a legal representative,
agent, or advocate of the employee or former employee.
(3) The Whistleblower Protection Coordinator shall
have direct access to the Inspector General as needed
to accomplish the requirements of this subsection.
[(3)] (4) For the purposes of this section, the
requirement of the designation of a Whistleblower
Protection [Ombudsman] Coordinator under paragraph
(1)(C) shall not apply to--
(A) any agency that is an element of the
intelligence community (as defined in section
3(4) of the National Security Act of 1947 (50
U.S.C. 401a(4)) [50 U.S.C. 3003(4)]; or
(B) as determined by the President, any
executive agency or unit thereof the principal
functions of which is the conduct of foreign
intelligence or counter intelligence
activities.
* * * * * * *
SEC. 5. SEMIANNUAL REPORTS; TRANSMITTAL TO CONGRESS; AVAILABILITY TO
PUBLIC; IMMEDIATE REPORT ON SERIOUS OR FLAGRANT
PROBLEMS; DISCLOSURE OF INFORMATIONAL DEFINITIONS.
(a) * * *
(1) * * *
* * * * * * *
(20)(A) a detailed description of any instance of
whistleblower retaliation, including information about
the official found to have engaged in retaliation; and
(B) what, if any consequences the establishment
actually imposed to hold that official described in
subparagraph (A) accountable;
* * * * * * *
(b) * * *
(1) * * *
(2) * * *
(3) * * *
(A) * * *
* * * * * * *
(D) for which no final action has been taken
by the end of the reporting period; [and]
(4) whether the establishment entered into a
settlement agreement with the official described in
subsection (a)(20)(A), which shall be reported
regardless of any confidentiality agreement relating to
the settlement agreement; and
[4] (5) a statement with respect to audit reports on
which management decisions have been made but final
action has not been taken, other than audit reports on
which a management decision was made within the
preceding year, containing--
(A) a list of such audit reports and the date
each such report was issued;
(B) the dollar value of disallowed costs for
each report;
(C) the dollar value of recommendations that
funds be put to better use agreed to by
management for each report; and
(D) an explanation of the reasons final
action has not been taken with respect to such
audit report.
* * * * * * *
SEC. 11. ESTABLISHMENT OF THE COUNCIL OF THE INSPECTORS GENERAL ON
INTEGRITY AND EFFICIENCY.
(a) * * *
(b) * * *
(c) * * *
(1) * * *
* * * * * * *
(5) Additional responsibilities relating to
whistleblower protection.--The Council shall--
(A) facilitate the work of the Whistleblower
Protection Coordinators designated under
section 3(d)(C); and
(B) in consultation with the Office of
Special Counsel and Whistleblower Protection
Coordinators from the member offices of the
Inspector General, develop best practices for
coordination and communication in promoting the
timely and appropriate handling and
consideration of protected disclosures,
allegations of reprisal, and general matters
regarding the implementation and administration
of whistleblower protection laws, in accordance
with Federal law.
* * * * * * *
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
* * * * * * *
SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.
(a) * * *
(b) * * *
[(c) Sunset.--
[(1) In general.--The amendments made by this section
shall cease to have effect on the date that is 5 years
after the date of enactment of this Act.
[(2) Return to prior authority.--Upon the date
described in paragraph (1), section 3(d) and section
8D(j) of the Inspector General Act of 1978 (5 U.S.C.
App.) shall read as such sections read on the day
before the date of enactment of this Act.]
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