[Senate Report 115-74]
[From the U.S. Government Publishing Office]
Calendar No. 93
115th Congress } { Report
SENATE
1st Session } { 115-74
_______________________________________________________________________
OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 582
TO REAUTHORIZE THE OFFICE OF SPECIAL COUNSEL, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 18, 2017.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
69-010 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
Courtney J. Allen, Counsel
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Katherine C. Sybenga, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 93
115th Congress } { Report
SENATE
1st Session } { 115-74
======================================================================
OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017
_______
May 18, 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. 582]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 582) to reauthorize
the Office of Special Counsel, and for other purposes, having
considered the same, reports favorably thereon with amendments
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..............................................7
IV. Section-by-Section Analysis......................................7
V. Evaluation of Regulatory Impact.................................10
VI. Congressional Budget Office Cost Estimate.......................10
VII. Changes in Existing Law Made by the Bill, as Reported...........12
I. Purpose and Summary
The purpose of S. 582, the Office of Special Counsel
Reauthorization Act of 2017, is to reauthorize the Office of
Special Counsel (OSC) through fiscal year 2022 and provide
updated authorities to the OSC. The bill will enhance the OSC's
authority to investigate allegations of prohibited personnel
practices and to seek corrective actions from Federal agencies,
as well as provide additional protections for Federal employees
who make disclosures of waste, fraud, abuse or misconduct in
the Federal Government.\1\
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\1\On May 25, 2016, the Committee approved S. 2968, the Office of
Special Counsel Reauthorization Act of 2016. That bill is substantially
similar to S. 582. Accordingly, this committee report is in large part
a reproduction of Chairman Johnson's committee report for S. 2968, S.
Rep. No. 114-360 (2016).
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II. Background and the Need for Legislation
Congress first created the position of Special Counsel in
the Civil Service Reform Act of 1978.\2\ The Special Counsel
was originally created as a position within the Merit Systems
Protection Board (Board) to investigate disclosures of
violations of law and waste, fraud, and abuse in the Federal
Government, to investigate allegations of prohibited personnel
practices and whistleblower retaliation, and to file complaints
against agency officials and Federal employees who engage in
these actions.\3\ Congress removed the Special Counsel from the
Board when it established the OSC in the Whistleblower
Protection Act of 1989 (WPA).\4\ The WPA authorized the OSC
through fiscal year 1992.\5\ Congress reauthorized the OSC from
1993 to 1997\6\ and from 2002 to 2007.\7\ Since 2008, however,
the OSC has received funding and continued operating without
additional authorizing legislation.
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\2\Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1111, 1122-31 (1978).
\3\Id. at 1122, 1125.
\4\Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103
Stat. 16, 19-29 (1989).
\5\Id. at 34.
\6\Pub. L. No. 103-424, 108 Stat. 4361 (to reauthorize the Office
of Special Counsel, and for other purposes).
\7\Pub. L. No. 107-304, 2, 116 Stat. 2363, 2364 (to amend title 5,
United States Code, to allow certain catch-up contributions to the
Thrift Savings Plan to be made by participants age 50 or over; to
reauthorize the Merit Systems Protection Board and the Office of
Special Counsel; and for other purposes).
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The OSC is responsible for receiving whistleblower
disclosures of waste, fraud, and abuse and for receiving and
investigating allegations of prohibited personnel practices,\8\
including whistleblower retaliation.\9\ In the case of
whistleblower disclosures, the OSC reviews the allegations and
determines whether there is a substantial likelihood that the
disclosure evidences waste; abuse; violations of laws, rules or
regulations; gross mismanagement, or a danger to public health
and safety.\10\ The OSC provides the disclosure to the
appropriate agency head and requires the agency head to
investigate the disclosure and report its findings to the OSC,
which will be transmitted to the President and Congress.\11\
For alleged prohibited personnel practices, the OSC
investigates the allegations and, if it determines that a
prohibited personnel practice occurred, seeks corrective action
either from the agency or from the Board.\12\
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\8\5 U.S.C. 2302(b).
\9\5 U.S.C. 1212(a).
\10\5 U.S.C. 1213(a),(b).
\11\5 U.S.C. 1213(c)-(e).
\12\5 U.S.C. 1214.
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Special Counsel Carolyn Lerner told the Committee at a
January 12, 2016, hearing that ``[OSC] is engaged in the most
productive period in its history.''\13\ The number of
complaints filed with and reviewed by the OSC has steadily
increased over the past few years. In fiscal year 2016, roughly
6,000 new cases were filed with the OSC.\14\ Fiscal year 2015
was the first time in the history of the OSC that it received
more than 6,000 new cases.\15\
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\13\Nomination of Michael J. Missal to be Inspector General, U.S.
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to
be Special Counsel, Office of Special Counsel: Hearing Before the S.
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016)
(statement of Carolyn N. Lerner, Special Counsel, Office of Special
Counsel).
\14\Office of Special Counsel, Performance and Accountability
Report for Fiscal Year 2016, 10 (2016), available at https://osc.gov/
Resources/OSC-FY2016-PAR-15Nov2016.pdf.
\15\Office of Special Counsel, Performance and Accountability
Report for Fiscal Year 2015, 4, 10 (2015), available at https://
osc.gov/Resources/FY%202015%20PAR-16Nov2015%20Final.pdf.
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With the significant increase in its caseload, there are
several challenges the OSC faces that can be addressed through
reauthorization legislation. The OSC recommended to Congress
changes to help the agency be more productive in light of the
increasing workload, to improve its access to agency
information, and to improve agency accountability for actions
ordered by the OSC.\16\
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\16\Reauthorization of the U.S. Office of Special Counsel: Hearing
Before the Subcomm. on Gov't Operations of the H. Comm. on Oversight &
Gov't Reform, 114th Cong. (2015) (statement of Carolyn N. Lerner,
Special Counsel, Office of Special Counsel) [hereinafter ``House
Hearing''].
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Lack of statutory authority to access documents
On occasion, an obstacle in OSC investigations is the lack
of explicit statutory authority by the OSC to request
information from agencies. Currently, authority to request
information from agencies only exists in regulation.\17\ The
OSC wrote to the Committee:
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\17\Id. See also 5 C.F.R. 5.4 (2016).
Although federal agencies generally work with OSC to
fulfill OSC's document requests, some agencies do not
provide timely and complete responses to our document
requests under 5 C.F.R. 5.4. The failure to provide
such responses can significantly delay and impede OSC's
investigations. Specifically, agencies sometimes
withhold documents and other information responsive to
OSC requests by improperly asserting the attorney-
client privilege. In these cases, OSC must often engage
in prolonged disputes over information to which OSC is
clearly entitled. This undermines the effectiveness of
whistleblower laws, wastes precious resources, and
prolongs OSC investigations.\18\
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\18\Letter from Carolyn N. Lerner, Special Counsel, Office of
Special Counsel, to Senator Ron Johnson, Chairman, and Senator Claire
McCaskill, Ranking Member, S. Comm. on Homeland Sec. & Governmental
Affairs (March 13, 2017).
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Special Counsel Lerner provided testimony asserting that:
Neither OSC's governing statutes, nor applicable OPM
regulations authorize an agency to withhold information
from OSC based on an assertion of attorney-client
privilege by a government attorney acting on behalf of
a government agency and no court has ever held that the
attorney-client privilege can be asserted during intra-
governmental administrative investigations.\19\
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\19\Transparency at TSA: Hearing Before the Subcomm. on Gov't
Operation of the H. Comm. on Oversight & Gov't Reform, 115th Cong.
(2017) (statement of Carolyn N. Lerner, Special Counsel, Office of
Special Counsel).
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The OSC wrote to the Committee:
Although the attorney-client privilege protects
certain communications between a lawyer and a client,
there is simply no basis for a federal agency to assert
privilege during an OSC investigation. Congress has
directed OSC to conduct investigations as objective
fact-finders, similar to Inspectors General and the
Government Accountability Office. Indeed, Congress has
made clear that there is a strong public interest in
exposing government wrongdoing and upholding merit
system principles. To uphold this public interest, OSC
routinely reviews communications between management
officials and agency counsel to determine whether an
agency acted with a legitimate or unlawful basis in
taking action against a whistleblower. Federal agencies
have no legitimate basis to use privileges to conceal
evidence of prohibited practices from the agency the
Congress charged with investigating them. . . .
Congress created OSC as an intra-executive branch
investigative agency to investigate whether prohibited
conduct occurred. That purpose is frustrated when
agencies withhold information.\20\
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\20\Letter from Carolyn N. Lerner, supra note 18.
For whistleblower disclosure cases, the OSC referred almost
200 disclosures to agencies for further investigation from
fiscal years 2013 through 2015\21\ and sent 78 disclosure
reports in fiscal year 2016.\22\ Approximately 90 percent of
the disclosures from fiscal years 2013 through 2015 and 87
percent of those in fiscal year 2016 were wholly or partially
substantiated by the agencies.\23\ However, some of the
corrective action plans submitted to the OSC in response to the
identified misconduct are ``insufficient or incomplete.''\24\
For this, the OSC recommended to Congress that agencies be
required ``to provide an explanation if they fail to take
action, including disciplinary action, in the case of
substantiated misconduct. And . . . OSC should have the
statutory authority to request and receive detailed follow-up
information.''\25\
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\21\House Hearing, supra note 16.
\22\Office of Special Counsel, supra note 14 at 11.
\23\Id. See also House Hearing, supra note 16.
\24\Id.
\25\Id.
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Unauthorized access of medical records
The recent disclosures of fraud, misconduct, and
mismanagement within the Department of Veterans Affairs (VA)
uncovered another form of whistleblower retaliation. OSC
Special Counsel Lerner testified before the House Committee on
Veterans Affairs Subcommittee on Oversight and Investigations
that:
A[n] . . . ongoing concern is the unlawful accessing of
employee medical records in order to discredit
whistleblowers. In many instances, VA employees are
themselves veterans and receive care at VA hospitals.
In several cases, the medical records of whistleblowers
have been accessed and information in those records has
apparently been used to attempt to discredit the
whistleblowers.\26\
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\26\Addressing Continued Whistleblower Retaliation Within the VA:
Hearing Before the H. Subcomm. on Oversight and Investigations of the
Comm. on Veterans Affairs, 114th Cong. (2015) (statement of Carolyn
Lerner, Special Counsel, Office of Special Counsel).
This Committee also heard testimony on September 22, 2015,
from Brandon Coleman, a medical professional of the Phoenix,
Arizona VA health care system, who alleged that his own medical
treatment records were repeatedly accessed by some of his co-
workers after he disclosed concerns that the VA was mishandling
suicidal veterans.\27\ According to Mr. Coleman, the VA then
attempted to terminate his employment using information from
those improperly-accessed medical records.\28\ A co-founder of
the VA Truth Tellers, an organization of whistleblowers who
have experienced retaliation since disclosing misconduct in the
VA, testified that he has talked with more than 50
whistleblowers across the country who allege that have had
their medical records accessed.\29\
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\27\Improving VA Accountability: Examining Firsthand Accounts of
Department of Veterans Affairs Whistleblowers: Hearing Before the S.
Comm. on Homeland Sec. and Governmental Affairs, 114th Cong. (2015)
(statement of Brandon Coleman, Sr., Ph.D., Addiction Therapist, Phoenix
Veterans Affairs Health Care System).
\28\Id.
\29\Id. (testimony of Shea Wilkes, Licensed Clinical Social Worker,
Overton VA Medical Center).
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Onerous requirements to close cases
In light of the ``skyrocketing caseloads'' of whistleblower
complaints from the VA and other agencies, the OSC requested
that Congress consider revising the procedural requirements
that the OSC must undertake for each and every complaint it
receives.\30\ Under current law, the OSC is required to send
several documents to complainants, regardless of whether the
complaint is repetitive, adjudicated by the Board, or filed
several years after the matter of the complaint occurred.\31\
According to the OSC, ``these requirements require us to devote
significant resources to closing non-meritorious complaints,
instead of focusing on prosecuting and resolving meritorious
cases.''\32\
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\30\Id. (statement of Carolyn Lerner, Special Counsel, Office of
Special Counsel).
\31\5 U.S.C. 1214.
\32\Improving VA Accountability, supra note 39 (statement of
Carolyn Lerner).
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Protecting the OSC's own employees
While OSC is charged with protecting Federal
whistleblowers, last year's results from an annual survey of
Federal employees, including employees at OSC, suggests the
agency may benefit from additional oversight and enhanced
whistleblower protections for its own employees, but this
year's results evidence OSC's commitment to improving employee
engagement and satisfaction.
Each year, OPM conducts the Federal Employee Viewpoint
Survey (FEVS), which provides employees an opportunity to
``candidly share their perceptions of their work experiences,
their agencies, and their leaders.''\33\ A significant concern
raised by the Partnership for Public Service report on the 2015
FEVS survey is that only 41.5 percent of OSC employees
responded positively to the questions ``Arbitrary actions,
personal favoritism, and coercion for partisan political
purposes are not tolerated,'' and ``I can disclose a suspected
violation of any law, rule, or regulation without fear of
reprisal.''\34\ Reports of recent survey results indicate OSC
is making progress to address the 2015 survey results.\35\ For
the 2016 FEVS, OSC employees reported double digit improvements
from 2015 to these questions, as well as for the question
``Prohibited personnel practices . . . are not tolerated.''\36\
As the agency charged with investigating and redressing
prohibited personnel practice violations in other Federal
agencies, it is important for OSC to lead by example by
continuing to improve on these issues in the eyes of its
employees.
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\33\Office of Personnel Management, Federal Employee Viewpoint
Survey Results: Gov't Mgmt Report, 2 (2015), available at https://
www.fedview.opm.gov/2015FILES/2015-FEVS-Gwide-Final-Report.PDF.
\34\P'ship for Pub. Serv., The Best Places to Work in the Fed.
Gov't, Effective Leadership: Fairness (2015), available at http://
bestplacestowork.org/BPTW/rankings/categories/small/leadership-sub-
fairness-15.
\35\Office of Personnel Management, Federal Employee Viewpoint
Survey Results (2016), available at https://unlocktalent.gov/us-office-
of-special-counsel.
\36\Office of Special Counsel, Federal Employee ViewPoint Survey
Results: 2012-2016 Comparison (2016), available at https://osc.gov/
Resources/fevs-2012-2016-comparison.pdf.
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The poor results for the OSC in the 2015 employee survey
moved Chairman Johnson to request a programmatic review of OSC
by the Government Accountability Office (GAO).\37\ As a part of
its review, Chairman Johnson requested that GAO assess
``whether there are adequate safeguards in place for proper
oversight of OSC.''\38\ These safeguards include the procedure
for OSC employee reporting of disclosures or prohibited
personnel practices, the adequacy of the agreement between the
OSC and the National Science Foundation Inspector General for
such reporting, and the adequacy of the mechanisms to prevent a
conflict of interest of the Special Counsel or Deputy Special
Counsel in the event of an investigation of OSC by the
Integrity Committee of the Council of the Inspectors General on
Integrity and Efficiency.\39\
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\37\Letter from Senator Ron Johnson, Chairman, S. Comm. on Homeland
Sec. and Governmental Affairs, to Gene Dodaro, Comptroller General,
Gov't Accountability Off. (Apr. 25, 2016).
\38\Id.
\39\Id.
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OSC also responded to these employee survey results with an
internal performance review that merits application government-
wide. In 2016, OSC began evaluating its managers on adherence
to whistleblower protection laws and policies as a critical
element in their performance plans.\40\ In addition to existing
criteria for performance reviews, ``managers will be required
to foster an environment that promotes disclosures and prevents
retaliation.''\41\ This performance requirement on
whistleblower protection for OSC employees is unique from other
Federal agencies, as Federal law does not require agencies'
performance appraisal systems to consider employee adherence to
whistleblower protection laws.\42\
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\40\Charles S. Clark, Whistleblower Protection Agency Looks to
Clean Up Its Own Backyard, Government Executive (Apr. 1, 2016), http://
www.govexec.com/oversight/2016/04/whistleblower-protection-agency-
looks-clean-its-own-backyard/127189/.
\41\Id.
\42\5 U.S.C. 4302.
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Conclusion
Special Counsel Lerner told the Committee that
``reauthorization provides Congress with an opportunity to
evaluate OSC's authorities and responsibilities and make any
necessary adjustments.''\43\ This reauthorization of OSC, which
provides OSC with statutory authority to access information, an
enhanced ability to oversee agency implementation of corrective
actions, and streamlined procedures for reviewing allegations,
along with additional whistleblower protections, will help
ensure that Federal employees have an avenue for recourse
should they be faced with retaliatory personnel actions after
disclosing waste, fraud, and abuse in the Federal Government.
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\43\Improving VA Accountability: Examining First-Hand Accounts of
Department of Veterans Affairs Whistleblowers: Hearing Before the S.
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015)
(statement of Carolyn N. Lerner, Special Counsel, Office of Special
Counsel).
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III. Legislative History
S. 582, the Office of Special Counsel Reauthorization Act
of 2017, was introduced on March 8, 2017, by Chairman Ron
Johnson, Ranking Member Claire McCaskill, and Senator Chuck
Grassley. Senators Steve Daines and Ron Wyden joined as co-
sponsors on March 9, 2016 and March 21, 2017, respectively. The
bill was referred to the Committee on Homeland Security and
Governmental Affairs.
The Committee considered S. 582 at a business meeting on
March 15, 2017. During the business meeting, one amendment by
Ranking Member McCaskill was offered. The amendment removed a
provision that denied individuals an opportunity to respond in
the event the investigation of their allegation is closed
without further inquiry under section 8 of this bill, while
still allowing OSC to circumvent previous statutory procedural
requirements for closing cases.
Both the McCaskill amendment and the legislation as amended
were approved by voice vote en bloc with Senators Johnson,
Portman, Lankford, Daines, McCaskill, Carper, Tester, Heitkamp,
Peters, 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
``Office of Special Counsel Reauthorization Act of 2017.''
Section 2. Adequate access of special counsel to information
This section authorizes the OSC to have timely access to
all documents or other information that relate to a matter
within the jurisdiction or authority of the OSC that are in the
possession of a Federal agency. This section also clarifies
that a Federal agency cannot withhold any information from the
OSC, an independent Federal agency, on the basis of common law
privilege and that providing such information does not waive
any assertion of privilege by the Federal agency in any other
proceeding. The Attorney General or an Inspector General may
withhold material from OSC if disclosure could interfere with
an ongoing criminal investigation or prosecution. In the event
of such a withholding, the Attorney General or Inspector
General must submit a written report to OSC describing the
withheld material and the reason for withholding it. If an
agency does withhold information or fail to comply with a
request by the OSC, the OSC is required to report this to
Congress.
Section 3. Information on whistleblower protections
This section delineates the responsibilities of Federal
agency heads for preventing prohibited personnel practices,
enforcing Federal whistleblower protection laws, and training
Federal employees on their rights to make disclosures and their
remedies should they be subject to prohibited personnel
practices. This section requires agencies to provide training
to supervisors on whistleblower protections and how to respond
to an allegation of a violation of whistleblower protection
laws. This section also requires agencies to notify an employee
of his or her appeals rights when subject to an adverse action.
This notification must inform the employee of the available
forums in which an appeal can be filed and the effect on the
employee's appeal rights based on the selected forum for
appeal.
Section 4. Additional whistleblower provisions
This section provides additional tools for the OSC, the
Board, and Federal agencies to prevent, investigate, or correct
whistleblower retaliation in the Federal workplace.
Subsection (a) makes additions to the types of actions that
may constitute a prohibited personnel practice. The accessing
of a medical record of an employee or applicant for employment
can be considered a prohibited personnel practice. A personnel
action taken against an employee because the employee
cooperated with an internal agency review or investigation or
because the employee refused to obey an order that would
require the employee to violate a rule or regulation can also
be considered a prohibited personnel action. An applicant for
employment who made a disclosure before the applicant's
appointment to Federal service can be covered under
whistleblower protection laws. This subsection also clarifies
that an employee with a principal job function of investigating
and disclosing wrongdoing will not be excluded from
whistleblower protection laws if the employee can demonstrate
that a personnel action taken against him or her was in
reprisal for a disclosure.
Subsection (b) allows the OSC to request additional
information from a Federal agency in its response to a finding
by the OSC of a prohibited personnel practice. This subsection
also extends the amount of time for the OSC to review a
complaint for a substantial likelihood that the complainant
discloses information warranting further investigation.
Subsection (c) requires an agency to give priority to the
transfer request of an employee who is the subject of an action
for which the Board grants a stay.
Subsection (d) allows the OSC to seek corrective action for
a Federal agency investigation of an employee that was started,
expanded, or extended in retaliation for a disclosure or
protected activity by the employee, regardless of whether the
agency investigation resulted in a personnel action against the
employee.
Section 5. Suicide by employees
This section requires an agency to refer to OSC any
instance in which an employee of the agency committed suicide
after making a disclosure of wrongdoing and then being subject
to a personnel action. OSC shall review the personnel action
taken against the employee as a result of the disclosure and
take appropriate action.
Section 6. Protection of whistleblowers as criteria in performance
appraisals
This section requires agencies to include whistleblower
protection in performance evaluations for supervisors.
Subsection (a) requires Federal agencies to develop
criteria by which whistleblower protection is evaluated in the
performance appraisals for supervisory employees. This
criterion will also consider the number of instances in which
an agency entered into an agreement with an individual based on
an allegation of a prohibited personnel practice committed by
the supervisor.
Subsection (b) requires agencies to include the
whistleblower protection criteria in the evaluation of a
supervisory employee.
Subsection (c) requires Federal agencies to submit an
annual report to Congress detailing the number of performance
appraisals in which supervisory employees were determined to
have unacceptable performance under the whistleblower
protection criteria.
Section 7. Discipline of supervisors based on retaliation against
whistleblowers
Under this section, an agency head must propose
disciplinary action against a supervisor if the agency head, an
administrative law judge, the Board, OSC, a United States
judge, or the agency Inspector General determines that the
supervisor committed a prohibited personnel action. The
proposed disciplinary action must be at least a suspension of
three days for the first finding of a prohibited personnel
action by the supervisor and removal for any subsequent finding
of committing a prohibited personnel practice by the
supervisor. The supervisor will be entitled to written notice
of the proposed disciplinary action and an opportunity to
answer and furnish evidence in support of the answer. If the
agency head is responsible for deciding whether a supervisor
committed a prohibited personnel practice, the agency head
cannot delegate that responsibility.
Section 8. Termination of certain investigations by the Office of
Special Counsel
This section allows the OSC to terminate certain
investigations without being subject to the statutory
procedural requirements. The OSC can terminate an investigation
under this section if it determines the complaint is not in the
jurisdiction of the OSC, if it alleges the same facts and
circumstances as a previous complaint investigated by the OSC
or filed with the Board, or if the complaint is not timely
based on when the complainant knew or should have known of the
prohibited personnel practice.
Section 9. Allegations of wrongdoing within the Office of Special
Counsel
Under this section, the OSC is required to enter into at
least one agreement with a Federal agency inspector general for
the purpose of receiving, reviewing, and investigating
complaints from OSC employees. This section requires the OSC to
provide a direct line of communication between its employees
and such inspector general and does not allow the OSC to
require any internal approval before an OSC employee can file a
complaint with the inspector general.
Section 10. Reporting requirements
This section revises the information required in the annual
report submitted to Congress by the OSC. This section also
requires OSC to report to Congress when a complaint filed with
OSC is resolved by an agreement between the agency and the
complainant, including the allegation and any disciplinary
action taken by the agency as a result of the complaint.
Section 11. Establishment of survey pilot program
This section suspends the annual survey of complainants to
the OSC and creates a pilot program that surveys individuals
during the next full fiscal year who filed a complaint or
disclosure with the OSC. This survey will be designed to
collect information on the individual's treatment at different
stages of review by the OSC, not just the disposition of the
individual's case as current required in statute. The results
of the survey will be published in the annual report by the
OSC.
Section 12. Regulations
This section requires OSC to prescribe regulations as
necessary to perform its functions within two years of
enactment of this bill.
Section 13. Authorization of appropriations
This section authorizes appropriations of sums necessary
for the OSC to carry out the provisions of this title through
fiscal year 2022.
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
May 12, 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. 582, the Office of
Special Counsel Reauthorization Act of 2017.
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. 582--Office of Special Counsel Reauthorization Act of 2017
Summary: S. 582 would authorize appropriations for the
Office of Special Counsel (OSC) for fiscal years 2017 through
2022. The bill also would amend several of the laws governing
the OSC and would extend new legal protections to federal
employees (known as whistleblowers) who report abuse, fraud,
and waste related to government activities.
CBO estimates that implementing this legislation would cost
$155 million over the 2017-2022 period, assuming appropriation
of the necessary amounts. Enacting S. 582 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
CBO estimates that enacting S. 582 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 582 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.
Estimated cost to the Federal Government: The estimated
budgetary effects of S. 582 are shown in the following table.
The costs of this legislation fall within budget function 800
(general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2017-2022
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Office of Special Counsel:a
Estimated Authorization Level........ 0 26 27 28 29 30 140
Estimated Outlays.................... 0 24 27 28 29 30 138
Whistleblower Provisions:
Estimated Authorization Level........ 0 2 2 2 2 2 10
Estimated Outlays.................... 0 2 2 2 2 2 10
Other Provisions:
Estimated Authorization Level........ 0 2 2 1 1 1 7
Estimated Outlays.................... 0 2 2 1 1 1 7
Total Increases:
Estimated Authorization Level.... 0 30 31 31 32 33 157
Estimated Outlays................ 0 28 31 31 32 33 155
----------------------------------------------------------------------------------------------------------------
a. The Office of Special Council received an appropriation of $25 million for 2017.
Basis of estimate: For this estimate, CBO assumes that S.
582 will be enacted near the end of fiscal year 2017, that the
necessary amounts will be appropriated each year, and that
spending will follow historical spending patterns for the
agency.
Under current law, the OSC investigates complaints
regarding reprisals against federal employees who inform
authorities of fraud or other improprieties in the operation of
federal programs. The OSC can order corrective action (such as
job restoration, back pay, and reimbursement of attorneys' fees
and medical costs) for valid complaints. If agencies fail to
take corrective actions, the OSC or the employee can pursue a
case through the Merit Systems Protection Board (MSPB) for
resolution.
Office of Special Counsel
Section 13 of the bill would authorize appropriations from
2017 through 2022 of whatever amounts may be necessary for OSC
operations. In 2017, the OSC received on appropriation $25
million. CBO estimates that continuing activities at that level
and accounting for the effects of anticipated inflation, would
cost $138 million over the 2018-2022 period.
Whistleblower provisions
Under current law, when settling employment disputes
between the federal government and employees over prohibited
personnel practices, federal agencies are required to pay an
employee's attorney fees, any retroactive salary payments, and
any travel or medical costs associated with the claim. S. 582
would expand legal protections for whistleblowers and would
allow the OSC to seek corrective action for federal employees
who suffered retaliation by their agency.
According to the MSPB and the OSC, those new legal
protections would affect a small number of cases, with
settlement amounts averaging about $20,000 per case. Based on
information about the probable number of such complaints (less
than five per agency) and the cost of similar corrective
actions provided by MSPB and OSC, CBO estimates that the new
legal protections would increase awards and administrative
costs by about $80,000 for each of the 26 major federal
agencies each year--for a total federal cost of about $2
million annually.
Other provisions
S. 582 also would codify and expand some policies and
practices of the federal government designed to prevent
retaliation against whistleblowers. Under the bill agencies
would be required to conduct additional employee training on
those polices and prepare reports on matters pertaining to
whistleblowers. Based on information from the OSC, the MSPB,
and on the costs of similar requirements, CBO estimates that
implementing those provisions would cost about $7 million over
the 2018-2022 period.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 582 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Intergovernmental and Private-sector impact: S. 582
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal costs: Matthew Pickford;
impact on state, local, and tribal governments: Zach Bryum;
impact on the private-sector: Paige Piper/Bach.
Estimate 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
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
* * * * * * *
Subchapter II--Office of Special Counsel
* * * * * * *
SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL
(a) * * *
(b) * * *
(1) * * *
* * * * * * *
(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).
* * * * * * *
(i) The Special Counsel shall enter into at least 1
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. 1213. PROVISIONS RELATING TO DISCLOSURES OF VIOLATIONS OF LAW,
GROSS MISMANAGEMENT, AND CERTAIN OTHER MATTERS.
(a) * * *
(b) Whenever the Special Counsel receives information of a
type described in subsection (a) of this section, the Special
Counsel shall review such information and, within [15 days] 45
days after receiving the information, determine whether there
is a substantial likelihood that the information discloses a
violation of any law, rule, or regulation, or gross
mismanagement, gross waste of funds, abuse of authority, or
substantial and specific danger to public health and safety.
(c) * * *
(d) * * *
(e)
(1) [Any such report] Any report required under
subsection (c) or paragraph (5) of this subsection
shall be submitted to the Special Counsel, and the
Special Counsel shall transmit a copy to the
complainant, except as provided under subsection (f) of
this section. The complainant may submit comments to
the Special Counsel on the agency report within 15 days
of having received a copy of the report.
[(2) Upon receipt of any report of the head of an
agency required under subsection (c) of this section,
the Special Counsel shall review the report and
determine whether--
[(A) the findings of the head of the agency
appear reasonable; and
[(B) the report of the agency under
subsection (c)(1) of this section contains the
information required under subsection (d) of
this section.]
(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).
(3) The Special Counsel shall transmit any
[agency report received pursuant to subsection
(c) of this section] report submitted to the
Special Counsel by the head of an agency under
subsection (c) or paragraph (5) of this
subsection, any comments provided by the
complainant pursuant to subsection (e)(1), and
any appropriate comments or recommendations by
the Special Counsel to the President and the
congressional committees with jurisdiction over
the agency which the disclosure involves.
(4) * * *
(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) which the head of the agency shall submit
to the Special Counsel within a period of time
specified by the Special Counsel.
(f) * * *
(g) * * *
[(h) The identity of any individual who makes a disclosure
described in subsection (a) may not be disclosed by the Special
Counsel without such individual's consent unless the Special
Counsel determines that the disclosure of the individual's
identity is necessary because of an imminent danger to public
health or safety or imminent violation of any criminal law.]
(h) The Special Counsel may not respond to any inquiry or
disclose any information about any person who makes a
disclosure under this section except in accordance with section
552a or as required by any other provision of Federal law.
* * * * * * *
SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE
ACTION.
(a) * * *
(1) * * *
(A) * * *
* * * * * * *
(D) No later than 10 days before the Special
Counsel terminates any investigation of a
prohibited personnel practice other than a
termination of an investigation described in
paragraph (6)(A), the Special Counsel shall
provide a written status report to the person
who made the allegation of the proposed
findings of fact and legal conclusions. The
person may submit written comments about the
report to the Special Counsel. The Special
Counsel shall not be required to provide a
subsequent written status report under this
subparagraph after the submission of such
written comments.
* * * * * * *
(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.
(b) * * *
(1) * * *
(A) * * *
* * * * * * *
(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.
* * * * * * *
(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 under section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D), even if no
personnel action, as defined under section 2302(a), is taken or
not taken.
* * * * * * *
SEC. 1218. ANNUAL REPORT.
[The Special Counsel shall submit an annual report to the
Congress on the activities of the Special Counsel, including
the number, types, and disposition of allegations of prohibited
personnel practices filed with it, investigations conducted by
it, cases in which it 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), and actions initiated by it before the Merit
Systems Protection Board, as well as a description of the
recommendations and reports made by it to other agencies
pursuant to this subchapter, and the actions taken by the
agencies as a result of the reports or recommendations. The
report required by this section shall include whatever
recommendations for legislation or other action by Congress the
Special Counsel may consider appropriate.] 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 or 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
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, other
than a stay or an extension of stay, for the
complainant, organized by actions in--
(A) complaints dealing with reprisals against
whistleblowers; and
(B) all other complaints; and
(11) the number of prohibited personnel practice
complainants 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 practices, as defined in section 2302(b); 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.
SEC. 1219. PUBLIC INFORMATION.
(a)
(1) [a list of noncriminal matters referred to heads
of agencies under subsection (c) of section 1213,
together with reports from heads of agencies under
subsection (c)(1)(B) of such section relating to such
matters;] 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).
* * * * * * *
SEC. 1219. TRANSMITTAL OF INFORMATION TO CONGRESS.
(a) In General.--The Special Counsel [The Special Counsel]
or any employee of the Special Counsel designated by the
Special Counsel shall transmit to the Congress on the request
of any committee or subcommittee thereof, by report, testimony,
or otherwise, information and the Special Counsel's view on
functions, responsibilities, or other matters relating to the
Office. Such information shall be transmitted concurrently to
the President and any other appropriate agency in the executive
branch.
(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. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES.
(a) * * *
* * * * * * *
(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.
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--General Provisions
* * * * * * *
CHAPTER 23--MERIT SYSTEMS PRINCIPLES
* * * * * * *
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a) * * *
(b) * * *
(1) * * *
* * * * * * *
(9) * * *
(A) * * *
(B) * * *
(C) cooperating with or disclosing
information to the Inspector General (or any
other component responsible for internal
investigation or review) of an agency, or the
Special Counsel, in accordance with applicable
provisions of law; or
(D) for refusing to obey an order that would
require the individual to violate a law, rule,
or regulation;
* * * * * * *
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by existing
statute or Executive order relating to (1) classified
information, (2) communications to Congress, (3) the
reporting to an Inspector General of a violation of any
law, rule, or regulation, or mismanagement, a gross
waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety, or (4)
any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by controlling Executive orders and
statutory provisions are incorporated into this
agreement and are controlling[.]; or
(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).
[(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, including how to make a lawful
disclosure of information that is specifically required by law
or Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such
disclosures. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.]
(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).
* * * * * * *
(f)
(1)
(A) * * *
* * * * * * *
(E) the disclosure was made while the
employee was off duty; [or]
(F) the disclosure was made before the date
on which the individual was appointed or
applied for appointment to a position; or
[F] (G) of the amount of time which was
passed since the occurrence of the events
described in the disclosure.
[(2) If a disclosure is made during the normal course
of duties of an employee, the disclosure shall not be
excluded from subsection (b)(8) if any employee who has
authority to take, direct others to take, recommend, or
approve any personnel action with respect to the
employee making the disclosure, took, failed to take,
or threatened to take or fail to take a personnel
action with respect to that employee in reprisal for
the disclosure.]
(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.
* * * * * * *
Subpart C--Employee Performance
* * * * * * *
CHAPTER 43--PERFORMANCE APPRAISAL
* * * * * * *
Subchapter I--General Provisions
* * * * * * *
SEC. 4301. DEFINITIONS.
[For the purpose of] Except as otherwise expressly
provided, for the purpose of this subchapter--
* * * * * * *
SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS.
(a) * * *
(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 degrees 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 such
disclosure described in clause (i); and
(iii) foster an environment in which
employees of the agency feel comfortable making
such disclosures 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] (c) * * *
[c] (d) * * *
* * * * * * *
Subchapter II--Performance Appraisal in the Senior Executive Service
* * * * * * *
SEC. 4313. CRITERIA FOR PERFORMANCE APPRAISALS.
(1) * * *
* * * * * * *
(4) other indications of the effectiveness,
productivity, and performance quality of the employees
for whom the senior executive is responsible; [and]
(5) meeting affirmative action goals, achievement of
equal employment opportunity requirements, and
compliance with the merit systems principles set forth
under section 2301 of this title[.]; and
(6) protecting whistleblowers, as described in
section 4302(b)(2).
* * * * * * *
Subpart D--Pay and Allowances
* * * * * * *
CHAPTER 55--PAY ADMINISTRATION
* * * * * * *
Subchapter I--General Provisions
* * * * * * *
SEC. 5509. APPROPRIATIONS.
* * * * * * *
MERIT SYSTEMS AND PROTECTION BOARD AND OFFICE OF SPECIAL COUNSEL;
AUTHORIZATION OF APPROPRIATIONS; RESTRICTION ON APPROPRIATIONS.
``(a)
``(1)
``(2) for each of fiscal years [2003, 2004, 2005,
2006, and 2007] 2017 through 2022 such sums as
necessary to carry out subchapter II of chapter 12 of
title 5, United States Code (as amended by this Act).''
* * * * * * *
Subpart F--Labor-Management and Employee Relations
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
Subchapter II--Removal, Suspension for More Than 14 Days, Reduction in
Grade or Pay, Furlough for 30 Days or Less
* * * * * * *
Table of sections
Sec.
7511. Definitions; application.
7512. Actions covered.
7513. Cause and procedure.
7514. Regulations.
7515. Discipline of supervisors based on retaliation against
whistleblowers.
* * * * * * *
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 proposed 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.
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