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[Senate Report 115-196]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 286
115th Congress      }                                  {       Report
                                 SENATE
                                                                 
 1st Session        }                                  {      115-196
_______________________________________________________________________

                                     

               WHISTLEBLOWER PROTECTION COORDINATION ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1869

               TO REAUTHORIZE AND RENAME THE POSITION OF
 WHISTLEBLOWER OMBUDSMAN TO BE THE WHISTLEBLOWER PROTECTION COORDINATOR

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               December 14, 2017.--Ordered to be printed

                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2017 
           
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
         Catharine A. Bailey, Director of Governmental Affairs
                       Courtney J. Allen Counsel
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                     Laura W. Kilbride, Chief Clerk

                                                     Calendar No. 286
115th Congress      }                                  {       Report
                                 SENATE
                                                                 
 1st Session        }                                  {      115-196

======================================================================

 
               WHISTLEBLOWER PROTECTION COORDINATION ACT

                                _______
                                

               December 14, 2017.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1869]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1869) to 
reauthorize and rename the position of Whistleblower Ombudsman 
to be the Whistleblower Protection Coordinator, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. Purpose and Summary

    The purpose of S. 1869, the Whistleblower Protection 
Coordination Act, is to permanently reauthorize and change the 
name of the whistleblower protection program established by the 
Whistleblower Protection Enhancement Act of 2012 (WPEA) from 
the Whistleblower Protection Ombudsman (Ombudsman) to the 
Whistleblower Protection Coordinator (Coordinator). The bill 
expands the role of the Coordinator to assist agency Inspectors 
General (OIG) with handling and examining whistleblower 
disclosures and communications and coordination between the 
agency OIG and other offices investigating whistleblower 
disclosures and whistleblower retaliation.

              II. Background and the Need for Legislation

    In 2012, Congress created the Ombudsman in the WPEA.\1\ 
This law required each agency OIG to ``appoint a Whistleblower 
Protection Ombudsman who shall educate employees about 
prohibitions on retaliation for protected disclosures and who 
have made or are contemplating making a protected disclosure 
about the rights and remedies against retaliation for protected 
disclosures.''\2\ Congress created the Ombudsman ``to ensure 
that employees are aware of their rights under the 
[Whistleblower Protection Act (WPA)] and avenues for 
redress.''\3\ The authority for the Ombudsman expired on 
November 27, 2017.\4\
---------------------------------------------------------------------------
    \1\Whistleblower Protection Enhancement Act, Pub. L. No. 112-199, 
1117, 126 Stat. 1465, 1475 (2012).
    \2\Id.
    \3\S. Rep. 112-155, at 32 (2012).
    \4\Whistleblower Protection Enhancement Act, supra note 1.
---------------------------------------------------------------------------
    The role of the Ombudsman at each agency OIG was to:

        provide the agency and the employees with an 
        intermediary to ensure that supervisors and leaders 
        within the agency, as well as employees, are aware of 
        prohibited retaliatory actions and employee rights 
        under the WPA. In this intermediary role, the ombudsman 
        could also help provide recommendations for resolving 
        problems between an individual and the employer before 
        any prohibited personnel practices are taken in 
        violation of the WPA.\5\
---------------------------------------------------------------------------
    \5\S. Rep. 112-155, at 32 (2012).

    Congress expressly prohibited the Ombudsman from acting as 
``a legal representative, agent, or advocate for an 
employee.''\6\
---------------------------------------------------------------------------
    \6\Whistleblower Protection Enhancement Act, supra note 1.
---------------------------------------------------------------------------
    Government officials and whistleblower advocates recognize 
the Ombudsman as an important tool in whistleblower protection 
at Federal agencies and recommend its permanent 
reauthorization.\7\ According to the Department of Justice 
(DOJ) OIG Ombudsman:
---------------------------------------------------------------------------
    \7\Five Years Later: A Review of the Whistleblower Protection 
Enhancement Act: Hearing Before the H. Subcomm. on Gov't Operations of 
the H. Comm. on Oversight and Gov't Reform, 115th Cong. (2017) 
[hereinafter House Hearing].

          Ensuring that whistleblowers are comfortable, 
        informed, and protected in coming forward is, 
        therefore, entirely consistent with the OIG's core 
        mission of detecting and deterring waste, fraud, abuse, 
        and corruption, and the OIG Whistleblower Ombudspersons 
        have played an important role in ensuring that they 
        have the information necessary to enable this to 
        occur.\8\
---------------------------------------------------------------------------
    \8\Id (statement of Robert Storch, Deputy Inspector General, U.S. 
Dep't of Justice), available at https://oig.justice.gov/testimony/
t170201a.pdf.

    Furthermore, the U.S. Office of Special Counsel (OSC) found 
the Ombudsman ``has led to more collaboration and information 
sharing among the various Inspectors General and with OSC. 
Increased cooperation allows our related offices to share best 
practices for investigation techniques and training, and to 
identify and resolve issues quickly and effectively.''\9\ The 
Government Accountability Project considers the Ombudsman to be 
``an unqualified success.''\10\
---------------------------------------------------------------------------
    \9\Id (statement of Eric Bachman, Deputy Special Counsel, U.S. Off. 
of Special Counsel), available at https://oversight.house.gov/wp-
content/uploads/2017/02/Bachman-OSC-Statement-Whistleblower-2-1.pdf
    \10\Id (statement of Tom Devine, Government Accountability 
Project), available at https://oversight.house.gov/wp-content/uploads/
2017/02/Devine-GAP-Statement-Whistleblower-2-1.pdf.
---------------------------------------------------------------------------
    While the Ombudsman is fulfilling its intent of educating 
and assisting Federal employees on whistleblower protections, 
areas of improvement have been identified in the five years 
since its establishment. First, the DOJ OIG Ombudsman expressed 
concern that:

          [T]he work we do under the WPEA generally does not 
        include much of what is often done by traditional 
        ombudsmen, and indeed, some such things might be seen 
        as inconsistent with our independent role and 
        consideration of complaints as OIGs. Given the current 
        title, there have been some concerns expressed that 
        some employees may be confused and expect us to perform 
        such functions, even though the WPEA specifically 
        provides that the ombudsman shall not act as a legal 
        representative, agent, or advocate.\11\
---------------------------------------------------------------------------
    \11\House Hearing, supra note 8.

    The word ``ombudsman'' is defined as ``a government 
official appointed to receive and investigate complaints made 
by individual against abuses or capricious acts of public 
officials'' or ``one that investigates, reports on, and helps 
settle complaints.''\12\ However, the role of the Ombudsman, as 
envisioned by the WPEA, is more educational than investigatory, 
so the name of the position may be misleading to 
whistleblowers. It is possible for Federal employees to have 
difficulty understanding the role of the Ombudsman due to the 
title of the position.
---------------------------------------------------------------------------
    \12\Ombudsman Definition, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/ombudsman (last visited Oct. 19, 2017).
---------------------------------------------------------------------------
    According to the DOJ OIG Ombudsman, there have been growing 
numbers of whistleblower retaliation cases in OIG offices.\13\ 
The DOJ OIG Ombudsman explained that whistleblower retaliation 
investigations, as well as whistleblower protection educational 
activities and outreach, ``are resource intensive, and our 
ability to fulfill these responsibilities and do so in a timely 
fashion is significantly impacted by the limitations on our 
available staffing and resources.''\14\ He also predicted that 
whistleblower retaliation investigations increase ``as 
[whistleblower] protections are expanded and made permanent, 
and as there is additional information disseminated by OIGs and 
others about whistleblower rights and protections.''\15\ As 
investigations increase and OIG resources are stretched thin, 
it is even more important to ensure that whistleblowers have 
access to a dedicated coordinator who can explain their rights 
and help them understand the process for redress of their 
grievances.
---------------------------------------------------------------------------
    \13\House Hearing, supra note 8.
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    The Whistleblower Protection Coordination Act will make 
permanent this important role for whistleblower protection in 
agencies across the Federal government and address issues 
identified during the initial implementation of the Ombudsman 
role. The bill will change the name of the Ombudsman to 
Coordinator in order to reduce confusion about the 
Coordinator's authorities and responsibilities. The bill will 
also require the Coordinator to assist the agency OIG to timely 
and efficiently investigate whistleblower disclosures and 
whistleblower retaliation claims. The Coordinator will also be 
responsible for liaising between agency OIGs, OSC, Congress, or 
any other Federal entity that is investigating a whistleblower 
disclosure or retaliation claim in order to ensure the most 
efficient use of staff and resources. The bill also requires 
the Council of Inspectors General on Integrity and Efficiency 
(CIGIE) to develop best practices for the Coordinator to follow 
in carrying out these responsibilities.
    The Committee notes that this bill seeks information on 
whether a settlement exists. It does not seek to publish any 
personal information or anything that would identify 
individuals involved in the matter or breach a confidentiality 
agreement.

                        III. Legislative History

    S. 1869, the Whistleblower Protection Coordination Act, was 
introduced on September 27, 2017, by Senator Charles Grassley, 
Ranking Member Claire McCaskill, Chairman Ron Johnson and 
Senator Ron Wyden. The bill was referred to the Committee on 
Homeland Security and Governmental Affairs. The Committee 
considered S. 1869 at a business meeting on October 4, 2017.
    The Committee ordered the bill reported favorably by voice 
vote en bloc with Senators Johnson, Lankford, Daines, 
McCaskill, Tester, Heitkamp, Hassan, and Harris present.

        IV. Section-by-Section Analysis of the Bill, as Reported

Section 1. Short title

    This section establishes the short title of the bill as the 
``Whistleblower Protection Coordination Act of 2017.''

Section 2. Reauthorization

    This section reauthorizes, renames, and adds additional 
responsibilities for the whistleblower protection program under 
the Inspector General Act of 1978.
    Subsection (a) renames the Ombudsman to the Coordinator and 
requires the Coordinator to have direct access to the agency 
OIG. This subsection charges the Coordinator with informing 
employees of their available options to file a whistleblower 
retaliation complaint and of any available alternative dispute 
resolution mechanisms and potential relief. The Coordinator is 
also required to assist the agency OIG to timely and 
appropriately investigate whistleblower disclosures and 
retaliation complaints. This subsection also requires the 
Coordinator to assist the agency OIG in communicating and 
coordinating with the OSC, CIGIE, the agency, Congress, and any 
other relevant entity to timely and appropriately investigate 
whistleblower disclosures and retaliation complaints.
    Subsection (b) requires CIGIE to assist the Coordinator and 
to develop best practices for coordinating and communicating 
between agencies to timely and efficiently handle and 
investigate whistleblower disclosures, allegations of 
whistleblower retaliation, and other matters in the 
implementation and administration of whistleblower protection 
laws.
    Subsection (c) adds requirements to the semiannual reports 
submitted by agency OIGs. This subsection requires these 
reports to include a detailed description of instances of 
whistleblower retaliation, any consequences imposed on the 
official determined to have committed the retaliation, and any 
settlement agreements the agency entered into with the official 
determined to have committed the retaliation.
    Subsection (d) is a technical change from ``Ombudsman'' to 
``Coordinator'' in a different federal law that requires 
training on the handling of whistleblower complaints.
    Subsection (e) permanently reauthorizes the Whistleblower 
Protection Coordinator.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                  December 5, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1869, the 
Whistleblower Protection Coordination Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 1869--Whistleblower Protection Coordination Act

    S. 1869 would permanently extend the authority of all 
Inspector General (IG) offices to hire whistleblower protection 
ombudsmen. The specific authority to hire such employees has 
expired. Each of the 72 IG offices of the federal government 
currently have such an ombudsman. The bill also would create 
additional responsibilities for the ombudsmen and require 
additional reporting by IGs, agencies, and the Council of the 
Inspectors General on Integrity and Efficiency (CIGIE).
    Information from CIGIE and some IGs indicates that most of 
the additional responsibilities and reporting requirements in 
the bill would not impose a significant administrative burden. 
In addition, CBO expects that much of the work of the ombudsmen 
(whose job title would change to whistleblower protection 
coordinator under the bill) would be continued under current 
law. Therefore, CBO estimates that implementing S. 1869 would 
cost less than $500,000 annually; such spending would be 
subject to the availability of appropriated funds.
    Enacting S. 1869 could affect direct spending by agencies 
that are not funded through annual appropriations; therefore, 
pay-as-you-go procedures apply. CBO estimates, however, that 
any net increase in spending by those agencies would be 
negligible. Enacting the bill would not affect revenues.
    CBO estimates that enacting S. 1869 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 1869 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

APPENDIX

           *       *       *       *       *       *       *

INSPECTOR GENERAL ACT OF 1978

           *       *       *       *       *       *       *

SEC. 3. APPOINTMENT OF INSPECTOR GENERAL; SUPERVISION; REMOVAL; 
                    POLITICAL ACTIVITIES; APPOINTMENT OF ASSISTANT 
                    INSPECTOR GENERAL FOR AUDITING AND ASSISTANT 
                    INSPECTOR GENERAL FOR INVESTIGATIONS.

    (a) * * *

           *       *       *       *       *       *       *

    (d) * * *
          (1) * * *
                (A)   * * *
                (B)   * * *
                  (C)  designate a Whistleblower Protection 
                [Ombudsman who shall educate agency employees--
                ] Coordinator who shall--
                          (i) educate agency employees--
                                  [i] (I) about prohibitions 
                                [on retaliation] against 
                                retaliation for protected 
                                disclosures; and
                                  [ii] (II) who have made or 
                                are contemplating making a 
                                protected disclosure about the 
                                rights and remedies against 
                                retaliation for protected 
                                disclosures[.]; including--
                                          (aa) the means by 
                                        which employees may 
                                        seek review of any 
                                        allegation of reprisal, 
                                        including the roles of 
                                        the Office of Inspector 
                                        General, the Office of 
                                        Special Counsel, the 
                                        Merit Systems 
                                        Protection Board, and 
                                        any other relevant 
                                        entities; and
                                          (bb) general 
                                        information about the 
                                        timeliness of such 
                                        cases, the availability 
                                        of any alternative 
                                        dispute mechanisms, and 
                                        avenues for potential 
                                        relief.
                          (ii) assist the Inspector General in 
                        promoting the timely and appropriate 
                        handling and consideration of protected 
                        disclosures and allegations of 
                        reprisal, to the extent practicable, by 
                        the Inspector General; and
                          (iii) assist the Inspector General in 
                        facilitating communication and 
                        coordination with the Special Counsel, 
                        the Council of the Inspectors General 
                        on Integrity and Efficiency, the 
                        agency, Congress, and any other 
                        relevant entity regarding the timely 
                        and appropriate handling and 
                        consideration of protected disclosures, 
                        allegations of reprisal, and general 
                        matters regarding the implementation 
                        and administration of whistleblower 
                        protection laws, rules, and 
                        regulations.
          (2) The Whistleblower Protection [Ombudsman] 
        Coordinator shall not act as a legal representative, 
        agent, or advocate of the employee or former employee.
          (3) The Whistleblower Protection Coordinator shall 
        have direct access to the Inspector General as needed 
        to accomplish the requirements of this subsection.
          [(3)] (4) For the purposes of this section, the 
        requirement of the designation of a Whistleblower 
        Protection [Ombudsman] Coordinator under paragraph 
        (1)(C) shall not apply to--
                  (A) any agency that is an element of the 
                intelligence community (as defined in section 
                3(4) of the National Security Act of 1947 (50 
                U.S.C. 401a(4)) [50 U.S.C. 3003(4)]; or
                  (B) as determined by the President, any 
                executive agency or unit thereof the principal 
                functions of which is the conduct of foreign 
                intelligence or counter intelligence 
                activities.

           *       *       *       *       *       *       *

SEC. 5. SEMIANNUAL REPORTS; TRANSMITTAL TO CONGRESS; AVAILABILITY TO 
                    PUBLIC; IMMEDIATE REPORT ON SERIOUS OR FLAGRANT 
                    PROBLEMS; DISCLOSURE OF INFORMATIONAL DEFINITIONS.

    (a) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (20)(A) a detailed description of any instance of 
        whistleblower retaliation, including information about 
        the official found to have engaged in retaliation; and
          (B) what, if any consequences the establishment 
        actually imposed to hold that official described in 
        subparagraph (A) accountable;

           *       *       *       *       *       *       *

    (b) * * *
          (1) * * *
          (2) * * *
          (3) * * *
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) for which no final action has been taken 
                by the end of the reporting period; [and]
          (4) whether the establishment entered into a 
        settlement agreement with the official described in 
        subsection (a)(20)(A), which shall be reported 
        regardless of any confidentiality agreement relating to 
        the settlement agreement; and
          [4] (5) a statement with respect to audit reports on 
        which management decisions have been made but final 
        action has not been taken, other than audit reports on 
        which a management decision was made within the 
        preceding year, containing--
                  (A) a list of such audit reports and the date 
                each such report was issued;
                  (B) the dollar value of disallowed costs for 
                each report;
                  (C) the dollar value of recommendations that 
                funds be put to better use agreed to by 
                management for each report; and
                  (D) an explanation of the reasons final 
                action has not been taken with respect to such 
                audit report.

           *       *       *       *       *       *       *

SEC. 11. ESTABLISHMENT OF THE COUNCIL OF THE INSPECTORS GENERAL ON 
                    INTEGRITY AND EFFICIENCY.

    (a) * * *
    (b) * * *
    (c) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (5) Additional responsibilities relating to 
        whistleblower protection.--The Council shall--
                  (A) facilitate the work of the Whistleblower 
                Protection Coordinators designated under 
                section 3(d)(C); and
                  (B) in consultation with the Office of 
                Special Counsel and Whistleblower Protection 
                Coordinators from the member offices of the 
                Inspector General, develop best practices for 
                coordination and communication in promoting the 
                timely and appropriate handling and 
                consideration of protected disclosures, 
                allegations of reprisal, and general matters 
                regarding the implementation and administration 
                of whistleblower protection laws, in accordance 
                with Federal law.

           *       *       *       *       *       *       *

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012

           *       *       *       *       *       *       *

SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.

    (a) * * *
    (b) * * *
    [(c) Sunset.--
          [(1) In general.--The amendments made by this section 
        shall cease to have effect on the date that is 5 years 
        after the date of enactment of this Act.
          [(2) Return to prior authority.--Upon the date 
        described in paragraph (1), section 3(d) and section 
        8D(j) of the Inspector General Act of 1978 (5 U.S.C. 
        App.) shall read as such sections read on the day 
        before the date of enactment of this Act.]

                                  [all]
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