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S. 372 (111th): Whistleblower Protection Enhancement Act of 2010
- Introduced:
- Feb 03, 2009 (111th Congress, 2009–2010)
- Sponsor:
- Sen. Daniel Akaka [D-HI]
- Status:
- At President
- See Instead:
- This bill was re-introduced as S. 743 (112th) on Apr 06, 2011.
The bill’s title was written by the bill’s sponsor. S. stands for Senate bill.
Library of Congress Summary
The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress.
12/22/2010.
Title
I
-
Protection of Certain Disclosures of Information by Federal Employees
Section
101
-
Amends federal personnel law relating to whistleblower protections to provide that such protections shall apply to a disclosure of any violation of law, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties.
Provides that a disclosure shall not be excluded from whistleblower protections:
(1) because the disclosure was made to a person, including a supervisor, who participated in an activity that the employee or applicant reasonably believed to evidence gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety;
(2) because the disclosure revealed information that had been previously disclosed;
(3) because of the employee or applicant's motive for making the disclosure;
(4) because the disclosure was not made in writing;
(5) because the disclosure was made while the employee was off duty; or
(6) because of the amount of time which has passed since the occurrence of the events described in the disclosure.
Provides that a disclosure shall not be excluded from whistleblower protections if it is made during the normal course of duties of an employee with respect to whom another employee with authority took, failed to take, or threatened to take or fail to take a personnel action in reprisal for the disclosure.
Section
102
-
Defines "disclosure" as a formal or informal communication or transmission, excluding a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant making the disclosure reasonably believes that it evidences:
(1) any violation of any law, rule, or regulation, except for an alleged violation that is a minor, inadvertent violation that occurs during the conscientious carrying out of official duties; or
(2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
Section
103
-
Provides that any presumption regarding a public officer's performance of a duty may be rebutted by substantial evidence. Establishes a "disinterested observer" standard for evaluating the validity of disclosures that evidence violations of law, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Section
104
-
Includes as a prohibited personnel practice the implementation or enforcement of any nondisclosure policy, form, or agreement that does not contain a specific statement that its provisions are consistent with requirements that preserve the right of federal employees to make disclosures of illegality, waste, fraud, abuse, or public health or safety threats.
Allows a non-disclosure policy, form, or agreement in effect before the enactment of this Act to be enforced after notice of such statement is provided to a specific employee or on the agency website.
Allows any action ordered to correct a prohibited personnel practice to include fees, costs, or damages reasonably incurred due to an agency investigation of the employee that was commenced, expanded, or extended in retaliation for the disclosure of protected activity that formed the basis of the corrective action.
Section
105
-
Adds the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage under the Whistleblower Protection Act of 1989 (WPA). Provides that a whistleblower at an agency cannot be deprived of WPA coverage unless the President removes the agency from coverage prior to a challenged personnel action taken against the whistleblower.
Section
106
-
Revises the standard of proof in disciplinary proceedings against an agency employee who takes an adverse personnel action against a whistleblower to require the Office of Special Counsel to show that the whistleblower's protected disclosure was a significant motivating factor in the decision to take an adverse action, even if other factors also motivated the decision.
Section
107
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Authorizes: (1) the Merit Systems Protection Board (MSPB), in disciplinary actions, to require payment of reasonable attorney fees by the agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case; and (2) compensatory damages (including interest, reasonable expert witness fees, and costs) if the MSPB orders corrective action.
Section
108
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Requires that, during the five-year period beginning on the effective date of this Act, a petition to review a final order or decision of the MSPB that raises no challenge to the MSPB's disposition of allegations of a prohibited personnel practice shall be filed in any court of appeals of competent jurisdiction (rather than exclusively in the Federal Circuit). Provides that the granting of a petition shall be at the discretion of the court of appeals.
Section
109
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Extends whistleblower and other anti-discrimination protections to employees (and applicants for employment) of the Transportation Security Administration (TSA).
Section
110
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Extends whistleblower protections to any current or prospective federal employee for disclosures that such employee reasonably believes are evidence of censorship related to research, analysis, or technical information and that are not specifically prohibited by law or that disclose information which is not specifically required to be kept classified in the interest of national defense or the conduct of foreign affairs.
Section
111
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Amends the Homeland Security Act of 2002 to provide that a permissible use of independently obtained infrastructure information includes the disclosure of such information for whistleblower purposes.
Section
112
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Requires federal agency heads to advise their employees on how to make a lawful disclosure of information that is required to be kept classified in the interest of national defense or the conduct of foreign affairs.
Section
113
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Authorizes the Special Counsel to appear as amicus curiae in civil whistleblower actions.
Section
114
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Provides that corrective action relating to a prohibited personnel practice may not be ordered if, after a finding that a protected disclosure was a contributing factor in taking a personnel action, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.
Section
115
-
Requires all government nondisclosure policies, forms, or agreements to contain a specific statement preserving the right of federal employees to disclose certain protected information.
Prohibits implementing or enforcing nondisclosure policies, forms, and agreements without such statement.
Permits nondisclosure policies, forms, and agreements in effect before the enactment of this Act to continue to be enforced with respect to:
(1) current employees if the agency provides notice of the statement to such employees; and
(2) former employees if the agency posts notice of the statement on its website for a one-year period.
Provides that a nondisclosure policy, form, or agreement for a person who is not a federal employee, but who is connected with the conduct of intelligence or intelligence-related activity, shall contain appropriate provisions that:
(1) require nondisclosure of classified information; and
(2) make it clear that the forms do not bar disclosures to Congress or an authorized official that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.
Section
116
-
Requires the Comptroller General to report to specified congressional committees on the implementation of this title, including an analysis of changes in the number of cases filed with the MSPB alleging violations, the outcome of such cases, and the impact the process has had on the MSPB and the federal court system. Requires the MSPB to include in its annual program performance reports information on the number and outcome of whistleblower cases filed.
Section
117
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Establishes a five-year program to allow current and former federal employees or applicants for employment to seek de novo review in a U.S. district court if such an individual is seeking corrective action or has filed an appeal with the MSPB with respect to a personnel action.
Section
118
-
Authorizes the MSPB, an administrative law judge appointed by the MSPB, or any designated MSPB employee to grant summary judgment motions in cases involving alleged prohibited personnel practices. Terminates this authority five years after the enactment of this Act.
Title
II
-
Effective Date
Makes this Act effective 30 days after its enactment.
House Republican Conference Summary
The summary below was written by the House Republican Conference, which is the caucus of Republicans in the House of Representatives.
This summary can be found at http://www.gop.gov/bill/111/2/s372.
Background
The passage of the Civil Service Reform Act in 1978 established statutory protections for federal employees who disclose incidents of government illegality, waste, fraud and abuse. The law established the Office of Special Counsel (OSC) to investigate and prosecute allegations of prohibited personnel practices or other violations of the merit system and established the Merit Systems Protection Board (MSPB) to adjudicate such cases.
In 1984, the MSPB reported that the law had no effect on the number of whistleblowers and that federal employees continued to fear reprisal. In 1989, Congress responded to these findings by passing the Whistleblower Protection Act (WPA). The WPA prohibits retaliation against federal employees who disclose what they reasonably believe to be evidence of illegal or other seriously improper activity committed by government employees. The WPA prohibits taking adverse personnel action against an employee because that employee makes a protected disclosure. An employee who claims to have suffered retaliation for having made a protected disclosure may file an appeal with the MSPB, ask the OSC to investigate or file a grievance.
In 1994, Congress passed a package of amendments to further address the types of disclosure that qualify for whistleblower protections. Those amendments prevented agencies from denying protections by designating the employee's particular position as a confidential policy-making position. Since the enactment of those amendments, several more decisions have again restricted what types of disclosures are considered protected by the WPA.
Summary
S. 372 would amend federal personnel law relating to whistleblower protections to expand the definition of a protected disclosure, define evidentiary standards, prohibit the implementation or enforcement of a nondisclosure policy to prevent an employee from making a disclosure, and extend protection to federal employees not covered by current law.
Whistleblower & Disclosure Protections: The bill would ensure that disclosures are not excluded. The types of disclosures covered under the bill would include the following:
• A disclosure made during the normal course of the employee's duties;
• A disclosure made to a person, including a supervisor, who participated in the wrongdoing;
• A disclosure that revealed information that had been previously disclosed;
• A disclosures that are not made in writing; or
• A disclosure made while the employee was off duty.
The bill would clarify that disclosures could not be declared unprotected simply because of the employee's motive for making the disclosure or due to the amount of time that has passed since the events described in the disclosure. The bill would stipulate that a whistleblower at an agency could not be deprived of coverage unless the president removes the agency from coverage prior to a challenged personnel action being taken against the whistleblower.
Disclosure Definition: The bill would expand the statutory definition of disclosure to include any formal or nonformal communication. The definition would exclude communication concerning policy decisions that "lawfully exercise discretionary authority" unless the individual making the disclosure believes that illicit activity occurred. Additionally, the bill would extend whistleblower protections for disclosures that are evidence of censorship related to research, analysis or technical information.
Prohibited Personnel Practices: The bill would expand the list of prohibited personnel practices to include the implementation or enforcement of a nondisclosure policy that does not contain a specific statement preserving the right of federal employees to make disclosures of illegality.
Corrective Actions: The bill would allow corrective action taken on behalf of an employee making a disclosure to include fees, costs or damages if the use of a prohibited personnel practice was undertaken in retaliation for a disclosure. The bill would require the Office of Special Council to demonstrate that a protected disclosure was a significant motivating factor in the agency's decision to take an adverse action against a whistleblower. The bill would also create a new standard of proof in disciplinary hearings against supervisors who take adverse personnel actions against whistleblowers, requiring the supervisor taking the adverse action to demonstrate by a "preponderance of evidence" that he or she would have undertaken the action regardless of a disclosure being made.
Extensions & Exclusions of the Whistleblower Protection Act: The bill would add the Office of the Director of National Intelligence and the National Reconnaissance Office to the list of intelligence community entities excluded from coverage. The bill would extend coverage to include employees and applicants of the Transportation Security Administration.
Cost
The Congressional Budget Office (CBO) does not have an updated score for the bill as approved by the Senate.
House Democratic Caucus Summary
The House Democratic Caucus does not provide summaries of bills.
So, yes, we display the House Republican Conference’s summaries when available even if we do not have a Democratic summary available. That’s because we feel it is better to give you as much information as possible, even if we cannot provide every viewpoint.
We’ll be looking for a source of summaries from the other side in the meanwhile.
The bill contains the following citations to other parts of U.S. law:
Other Citations
- 5 U.S.C. Chapter 23