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S. 2968 (114th): Office of Special Counsel Reauthorization Act of 2016

The text of the bill below is as of Sep 27, 2016 (Reported by Senate Committee).


II

Calendar No. 646

114th CONGRESS

2d Session

S. 2968

[Report No. 114–360]

IN THE SENATE OF THE UNITED STATES

May 23, 2016

(for himself, Mr. Grassley, and Mrs. McCaskill) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

September 27, 2016

Reported by , with amendments

Omit the part struck through and insert the part printed in italic

A BILL

To reauthorize the Office of Special Counsel, and for other purposes.

1.

Short title

This Act may be cited as the Office of Special Counsel Reauthorization Act of 2016.

2.

Adequate access of Special Counsel to information

Section 1212(b) of title 5, United States Code, is amended by adding at the end the following:

(5)
(A)

The Special Counsel, in carrying out this subchapter—

(i)

shall have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency which relate to a matter within the jurisdiction or authority of the Special Counsel;

(ii)

may 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)

may require, during an investigation, review, or inquiry of an agency, any employee of the agency to provide to the Special Counsel any record or other information that relates to a matter within the jurisdiction or authority of the Special Counsel.

(B)
(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).

.

3.

Prohibited personnel practices; information on whistleblower protections

Section 2302 of title 5, United States Code, is amended—

(1)

in subsection (a)(2)(A)—

(A)

in clause (xi), by striking and at the end;

(B)

by redesignating clause (xii) as clause (xiii); and

(C)

by inserting after clause (xi) the following:

(xii)

for the purposes of paragraph (8) or (9) of subsection (b), the accessing of a medical record of the employee or applicant for employment; and

;

(2)

in subsection (b)(9)(D), by inserting , rule, or regulation after order law; and

(3)

by striking subsection (c) and inserting the following:

(c)
(1)

In this subsection—

(A)

the term new employee means an individual—

(i)

appointed to a position as an employee on or after the date of enactment of the Office of Special Counsel Reauthorization Act of 2016; 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).

.

4.

Additional whistleblower provisions

(a)

Explanations for failure To take action

Section 1213 of title 5, United States Code, is amended—

(1)

in subsection (b), by striking 15 days and inserting 45 days;

(2)

in subsection (e)—

(A)

in paragraph (1), by striking Any such report and inserting Any report required under subsection (c) or paragraph (5) of this subsection;

(B)

by striking paragraph (2) and inserting the following:

(2)

Upon

(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

(A)

the findings of the head of the agency appear reasonable; and

(B)

if

(B)

if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).

;

(C)

in paragraph (3), by striking agency report received pursuant to subsection (c) of this section and inserting report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection; and

(D)

by adding at the end the following:

(5)

If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—

(A)

containing the additional information or documentation identified by the Special Counsel; and

(B)

which the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.

; and

(3)

by striking subsection (h) and inserting the following:

(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.

.

(b)

Retaliatory investigations

Section 1214 of title 5, United States Code, is amended by adding at the end the following:

(i)

The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described 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.

.

(c)

Sensitive positions

Section 7701 of title 5, United States Code, is amended—

(1)

by redesignating subsection (k) as subsection (l); and

(2)

by inserting after subsection (j) the following:

(k)
(1)

The Board has authority to review on the merits an appeal by an employee or applicant for employment of an action arising from a determination that the employee or applicant for employment is ineligible for a sensitive position if—

(A)

the sensitive position does not require a security clearance or access to classified information; and

(B)

such action is otherwise appealable.

(2)

In this subsection, the term sensitive position means a position designated as a sensitive position under Executive Order 10450 (5 U.S.C. 7311 note), or any successor thereto.

.

(d)

Protection of whistleblowers as criteria in performance appraisals

(1)

Establishment of systems

Section 4302 of title 5, United States Code, is amended—

(A)

by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and

(B)

by inserting after subsection (a) the following:

(b)
(1)

The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that—

(A)

the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and

(B)

promote the protection of whistleblowers.

(2)

The criteria required under paragraph (1) shall include principles for the protection of whistleblowers, such as the degree to which supervisory employees—

(A)

respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8);

(B)

take responsible actions to resolve such disclosures; and

(C)

foster an environment in which employees of the agency feel comfortable making such disclosures to supervisory employees or other appropriate authorities.

(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 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

(C)

the term whistleblower means an employee who makes a disclosure described in section 2302(b)(8).

.

(2)

Criteria for performance appraisals

Section 4313 of title 5, United States Code, is amended—

(A)

in paragraph (4), by striking and at the end;

(B)

in paragraph (5), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(6)

protecting whistleblowers, as described in section 4302(b)(2).

.

(e)

Annual report to Congress on unacceptable performance in whistleblower protection

(1)

Definitions

In this subsection, the terms agency and whistleblower have the meanings given the terms in section 4302(b)(3) of title 5, United States Code, as amended by subsection (d).

(2)

Report

Each agency shall annually submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the agency a report that details—

(A)

the number of performance appraisals, for the year covered by the report, that determined that an employee of the agency failed to meet the standards for protecting whistleblowers that were established under section 4302(b) of title 5, United States Code, as amended by subsection (d);

(B)

the reasons for the determinations described in subparagraph (A); and

(C)

each disciplinary or corrective action taken by the agency in response to a determination under subparagraph (A).

(f)

Technical and conforming amendment

Section 4301 of title 5, United States Code, is amended, in the matter preceding paragraph (1), by striking For the purpose of and inserting Except as otherwise expressly provided, for the purpose of.

5.

Termination of certain investigations by the Office of Special Counsel

Section 1214(a) of title 5, United States Code, is amended—

(1)

in paragraph (1)(D), in the first sentence, by inserting other than a termination of an investigation described in paragraph (6)(A) after investigation of a prohibited personnel practice; and

(2)

by adding at the end the following:

(6)
(A)

Not later than 30 days after receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry or an opportunity for the individual who submitted the allegation to respond if the Special Counsel determines that—

(i)

the same allegation, based on the same set of facts and circumstances had previously been—

(I)
(aa)

made by the individual; and

(bb)

investigated by the Special Counsel; or

(II)

filed by the individual with the Merit Systems Protection Board;

(ii)

the Special Counsel does not have jurisdiction to investigate the allegation; or

(iii)

the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.

(B)

Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.

.

6.

Allegations of wrongdoing within the Office of Special Counsel

Section 1212 of title 5, United States Code, is amended by adding at the end the following:

(i)

The Special Counsel shall enter into at least 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.

.

7.

Reporting requirements

(a)

Annual report

Section 1218 of title 5, United States Code, is amended to read as follows:

1218.

Annual report

The Special Counsel shall submit to Congress, on an annual basis, a report on the activities of the Special Counsel, which shall include, for the year preceding the submission of the report—

(1)

the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel and the costs of resolving such allegations;

(2)

the number of investigations conducted by the Special Counsel;

(3)

the number of stays 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 action complaints initiated; and

(B)

stays and extensions of stays obtained from the Merit Systems Protection Board; and

(C)

requests for enforcement of subpoenas or requests for enforcement by the Merit Systems Protection Board described in section 1212(b)(6);

(10)

the number of prohibited personnel practice complaints that resulted in—

(A)

a favorable action for the complainant, organized by actions in—

(i)

complaints dealing with reprisals against whistleblowers; and

(ii)

all other complaints; and

(B)

a favorable outcome for the complainant, organized by outcomes in—

(i)

complaints dealing with reprisals against whistleblowers; and

(ii)

all other complaints;

(11)

the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(b); and

(12)

the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.

.

(b)

Public information

Section 1219(a)(1) of title 5, United States Code, is amended to read as follows:

(1)

a list of any noncriminal matters referred to the head of an agency under section 1213(c), together with—

(A)

a copy of the information transmitted to the head of the agency under section 1213(c)(1);

(B)

any report from the agency under section 1213(c)(1)(B) relating to the matter;

(C)

if appropriate, not otherwise prohibited by law, and consented to by the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; and

(D)

the comments or recommendations of the Special Counsel under paragraph (3) or (4) of section 1213(e);

.

8.

Establishment of survey pilot program

(a)

In general

The Office of Special Counsel shall design and establish a pilot program under which the Office shall conduct, during the period beginning on October 1, 2017 and ending on September 30, 2018, a survey of individuals who have filed a complaint or disclosure with the Office.

(b)

Purpose

The survey under subsection (a) shall be designed for the purpose of collecting information and improving service at various stages of a review or investigation by the Office of Special Counsel.

(c)

Results

The results of the survey under subsection (a) shall be published in the annual report of the Office of Special Counsel.

(d)

Suspension of other surveys

During the period beginning on October 1, 2017 and ending on September 30, 2018, section 13 of the Act entitled An Act to reauthorize the Office of Special Counsel, and for other purposes, approved October 29, 1994 (5 U.S.C. 1212 note), shall have no force or effect.

9.

Authorization of appropriations

(a)

In general

Section 8(a)(2) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking 2003, 2004, 2005, 2006, and 2007 and inserting 2016 through 2021.

(b)

Effective date

The amendment made by subsection (a) shall take effect as though enacted on September 30, 2015.

September 27, 2016

Reported with amendments