S. 582 — what changed
Office of Special Counsel Reauthorization Act of 2017
From Introduced in Senate to Reported in Senate. 4 sections amended between Introduced in Senate and Reported in Senate.
Sec. 4 Additional whistleblower provisions
Prohibited personnel practices— Section 2302 of title 5, United States Code, is amended—
in subsection (b)—
in paragraph (9)—
in subparagraph (C), by inserting “(or any other component responsible for internal investigation or review)” after “Inspector General”; and
in subparagraph (D), by inserting “, rule, or regulation” after “law”;
in paragraph (12), by striking “or” at the end;
in paragraph (13), by striking the period at the end and inserting “; or”; and
by inserting after paragraph (13) the following:
“(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).”
in subsection (f)—
in paragraph (1)—
in subparagraph (E), by striking “or” at the end;
by redesignating subparagraph (F) as subparagraph (G); and
by inserting after subparagraph (E) the following:
“(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or”
by striking paragraph (2) and inserting the following:
“(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (in this paragraph referred to as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.”
Explanations for failure To take action— Section 1213 of title 5, United States Code, is amended—
in subsection (b), by striking “15 days” and inserting “45 days”; and
in subsection (e)—
in paragraph (1), by striking “Any such report” and inserting “Any report required under subsection (c) or paragraph (5) of this subsection”;
by striking paragraph (2) and inserting the following:
“(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—
“(A) the findings of the head of the agency appear reasonable; and
“(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).”
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
by adding at the end the following:
“(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—
“(A) containing the additional information or documentation identified by the Special Counsel; and
“(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.”
Transfer requests during stays—
Priority granted— Section 1214(b)(1) of title 5, United States Code, is amended by adding at the end the following:
“(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.”
Probationary employees— Section 1221 of title 5, United States Code, is amended by adding at the end the following:
“(k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.”
Retaliatory investigations— Section 1214 of title 5, United States Code, is amended by adding at the end the following:
changed “(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), even if no without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken or not taken.”
Sec. 6 Protection of whistleblowers as criteria in performance appraisals
Establishment of systems— Section 4302 of title 5, United States Code, is amended—
by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and
by inserting after subsection (a) the following:
“(b)
“(1) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that—
“(A) the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and
“(B) promote the protection of whistleblowers.
“(2) The criteria required under paragraph (1) shall include—
“(A) principles for the protection of whistleblowers, such as the degree to which supervisory employees—
“(i) respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8);
“(ii) take responsible actions to resolve the disclosures described in clause (i); and
changed “(iii) foster an environment in which employees of the agency feel comfortable making disclosures described in subparagraph (A) clause (i) to supervisory employees or other appropriate authorities; and
“(B) for each supervisory employee—
“(i) whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and
“(ii) if the agency entered into an agreement described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the supervisory employee.
“(3) In this subsection—
“(A) the term agency means any entity the employees of which are covered by paragraphs (8) and (9) of section 2302(b), without regard to whether any other provision of this section is applicable to the entity;
“(B) the term prohibited personnel practice has the meaning given the term in section 2302(a)(1);
“(C) the term supervisory employee means an employee who would be a supervisor, as defined in section 7103(a), if the agency employing the employee was an agency for purposes of chapter 71; and
“(D) the term whistleblower means an employee who makes a disclosure described in section 2302(b)(8).”
Criteria for performance appraisals— Section 4313 of title 5, United States Code, is amended—
in paragraph (4), by striking “and” at the end;
in paragraph (5), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(6) protecting whistleblowers, as described in section 4302(b)(2).”
Annual report to Congress on unacceptable performance in whistleblower protection—
Definitions— In this subsection, the terms agency and whistleblower have the meanings given the terms in section 4302(b)(3) of title 5, United States Code, as amended by subsection (a).
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—
the number of performance appraisals, for the year covered by the report, that determined that an employee of the agency failed to meet the standards for protecting whistleblowers that were established under section 4302(b) of title 5, United States Code, as amended by subsection (a);
the reasons for the determinations described in subparagraph (A); and
each performance-based or corrective action taken by the agency in response to a determination under subparagraph (A).
Technical and conforming amendment— Section 4301 of title 5, United States Code, is amended, in the matter preceding paragraph (1), by striking “For the purpose of” and inserting “Except as otherwise expressly provided, for the purpose of”.
Sec. 8 Termination of certain investigations by the Office of Special Counsel
Section 1214(a) of title 5, United States Code, is amended—
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
by adding at the end the following:
“(6)
changed “(A) Not later Notwithstanding any other provision of this section, not later than 30 days after receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry or an opportunity for the individual who submitted the allegation to respond if the Special Counsel determines that—
“(i) the same allegation, based on the same set of facts and circumstances had previously been—
“(I)
“(aa) made by the individual; and
“(bb) investigated by the Special Counsel; or
“(II) filed by the individual with the Merit Systems Protection Board;
“(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or
“(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.
“(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.”
Sec. 10 Reporting requirements
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 and disciplinary actions negotiated with agencies by the Special Counsel;
“(4) the number of subpoenas issued by the Special Counsel;
“(5) the number of instances in which the Special Counsel reopened an investigation after the Special Counsel had made an initial determination with respect to the investigation;
“(6) the actions that resulted from reopening investigations, as described in paragraph (5);
“(7) the number of instances in which the Special Counsel did not make a determination before the end of the 240-day period described in section 1214(b)(2)(A)(i) regarding whether there were reasonable grounds to believe that a prohibited personnel practice had occurred, existed, or was to be taken;
“(8) a description of the recommendations and reports made by the Special Counsel to other agencies under this subchapter and the actions taken by the agencies as a result of the recommendations or reports;
“(9) the number of—
“(A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints initiated; and
“(B) stays and extensions of stays obtained from the Merit Systems Protection Board;
“(10) the number of prohibited personnel practice complaints that resulted in a favorable action for the complainant, other than a stay or an extension of a stay, organized by actions in—
“(A) complaints dealing with reprisals against whistleblowers; and
“(B) all other complaints; and
changed
“(11) the number of prohibited personnel practice complaints that were resolved by an agreement between an agency and an individual, organized by agency and agency components components, in—
“(A) complaints dealing with reprisals against whistleblowers; and
“(B) all other complaints;
“(12) the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(a)(1); and
“(13) the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.”
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);”
Notice of complaint settlements— Section 1217 of title 5, United States Code, is amended—
by striking “The Special Counsel” and inserting:
“(a) In general—The Special Counsel”
by adding at the end the following:
“(b) Additional report required
“(1) In general—If an allegation submitted to the Special Counsel is resolved by an agreement between an agency and an individual, the Special Counsel shall submit to Congress and each congressional committee with jurisdiction over the agency a report regarding the agreement.
“(2) Contents—The report required under paragraph (1) shall identify, with respect to an agreement described in that paragraph—
“(A) the agency that entered into the agreement;
“(B) the position and employment location of the employee who submitted the allegation that formed the basis of the agreement;
“(C) the position and employment location of any employee alleged by an employee described in subparagraph (B) to have committed a prohibited personnel practice, as defined in section 2302(a)(1);
“(D) a description of the allegation described in subparagraph (B); and
“(E) whether the agency that entered into the agreement has agreed to pursue any disciplinary action as a result of the allegation described in subparagraph (B).”