Thoroughly Investigating Retaliation Against Whistleblowers Act

To reauthorize the Office of Special Counsel, to amend title 5, United States Code, to provide modifications to authorities relating to the Office of Special Counsel, and for other purposes. 1. Short title This Act may be cited as the Thoroughly Investigating Retaliation Against Whistleblowers Act 2. Reauthorization of the Office of Special Counsel (a) In general Section 8(a)(2) of the Whistleblower Protection Act of 1989 ( 5 U.S.C. 5509 2003, 2004, 2005, 2006, and 2007 2016, 2017, 2018, 2019, and 2020 (b) Effective date The amendment made by subsection (a) shall be deemed to apply beginning on October 1, 2015. 3. Access to agency information Section 1212(b) of title 5, United States Code, is amended by adding at the end the following: (5) (A) In carrying out this subchapter, the Special Counsel is authorized to— (i) have access to any record or other information (including a report, audit, review, document, recommendation, or other material) of any agency under the jurisdiction of the Office of Special Counsel; and (ii) require any employee of such an agency to provide to the Office any record or other information during an investigation, review, or inquiry of any agency under the jurisdiction of the Office. (B) With respect to any record or other information made available by an agency under this subchapter, the Office shall apply a level of confidentiality to such record or information at the level of confidentiality applied to the record by the agency. . 4. Whistleblower provisions Section 1213 of title 5, United States Code, is amended— (1) in subsection (b), by striking 15 days 45 days (2) in subsection (d)— (A) in paragraph (4), by striking and (B) in paragraph (5)— (i) in the matter before subparagraph (A), by striking such as including (ii) in subparagraph (D), by striking the period at the end and inserting ; and (C) by adding at the end the following: (6) if any disclosure referred to an agency head under subsection (c) is substantiated in whole or in part by the agency head, a detailed explanation of the failure to take any action described under paragraph (5). ; and (3) in subsection (e), by adding at the end the following: (5) If an agency head submits a report to the Special Counsel under subsection (d) that includes a description of any agency action proposed to be taken as a result of the investigation, the agency head shall, not later than 180 days after the date of such submission, submit a supplemental report to the Special Counsel stating whether any proposed action has been taken, and if the action has not been taken, the reason why it has not been taken. . 5. Termination of certain OSC investigations (a) In general Section 1214(a) of title 5, United States Code, is amended by adding at the end the following: (6) (A) Within 30 days of receiving an allegation from a person under paragraph (1), the Special Counsel may terminate an investigation under such paragraph with respect to the allegation, without further inquiry or an opportunity for the person to respond, if the Special Counsel determines that— (i) the same allegation, based on the same set of facts and circumstances— (I) had previously been made by the person and previously investigated by the Special Counsel; or (II) had previously been filed by the person with the Merit Systems Protection Board; (ii) the Office of Special Counsel does not have jurisdiction to investigate the allegation; or (iii) the person knew or should have known of the alleged prohibited personnel practice earlier than the date that is 3 years before the date Special Counsel received the allegation. (B) If the Special Counsel terminates an investigation under subparagraph (A), not later than 30 days after the date of such termination the Special Counsel shall provide a written notification stating the basis for the termination to the person who made the allegation. Paragraph (1)(D) shall not apply to any termination under such subparagraph. . (b) Conforming amendments Section 1214 of title 5, United States Code, is amended— (1) in subsection (a)(1)(A), by striking The Special Counsel Except as provided in paragraph (6), the Special Counsel (2) in subsection (a)(1)(C), in the matter before clause (i), by inserting or paragraph (6) paragraph (2) 6. Reporting requirements (a) OSC annual report to Congress Section 1218 of title 5, United States Code, is amended to read as follows: 1218. Annual report (a) The Special Counsel shall submit an annual report to Congress on the activities of the Special Counsel. Any such report shall include— (1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel, and the cost of allegations so disposed of; (2) the number of investigations conducted by the Special Counsel; (3) the number of stays or disciplinary actions negotiated by the Special Counsel with agencies; (4) the number of cases in which the Special Counsel 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); (5) a description of the recommendations and reports made by the Special Counsel to other agencies pursuant to this subchapter, and the actions taken by the agencies as a result of the reports or recommendations; (6) the number of— (A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints so initiated; and (B) stays and stay extensions obtained from the Board; and (7) the number of prohibited personnel practice complaints that result in— (A) a favorable action for the complainant, categorized by actions with respect to whistleblower reprisal cases and all other cases; and (B) a favorable outcome for the complainant, categorized by outcomes with respect to whistleblower reprisal cases and all other cases. (b) The report required by subsection (a) shall include whatever recommendations for legislation or other action by Congress the Special Counsel may consider appropriate. . (b) OSC public information Section 1219(a)(1) of title 5, United States Code, is amended to read as follows: (1) a list of any noncriminal matter referred to an agency head under section 1213(c), together with— (A) the applicable transmittal of the matter to the agency head under section 1213(c)(1); (B) any report from agency head under section 1213(c)(1)(B) relating to such matter; (C) if appropriate, not otherwise prohibited by law, and with the consent of the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; and (D) the Special Counsel’s comments or recommendations under section 1213(e)(3) or (4) relating to the matter; . 7. Establishment of survey pilot program (a) In general The Office of Special Counsel shall design and establish a survey pilot program under which the Office shall conduct, with respect to fiscal years 2017 and 2018, a survey of individuals who have filed a complaint or disclosure with the Office. The survey shall be designed to gather responses from the individuals for the purpose of collecting information and improving customer service at various stages of the review or investigative process. The results of the survey shall be published in the annual report of the Office. (b) Suspension of other surveys During fiscal years 2017 and 2018, section 13 of Public Law 103–424 8. Penalties under the Hatch Act (a) In general Section 7326 of title 5, United States Code, is amended to read as follows: 7326. Penalties An employee or individual who violates section 7323 or 7324 shall be subject to— (1) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand; (2) an assessment of a civil penalty not to exceed $1,000; or (3) any combination of the penalties described in paragraph (1) or (2). . (b) Application The amendment made by subsection (a) shall apply to any violation of section 7323 or 7324 of title 5, United States Code, occurring after the date of enactment of this Act. 9. Regulations Not later than two years after the date of enactment of this Act, the Special Counsel shall prescribe such regulations as may be necessary to perform the functions of the Special Counsel under subchapter II of chapter 12 April 25, 2016 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Summary: Thoroughly Investigating Retaliation Against Whistleblowers Act (Sec. 2) This bill amends the Whistleblower Protection Act of 1989 to reauthorize through FY2020 the Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency led by an official appointed by the President to protect federal employees, former employees, and applicants for employment from prohibited personnel practices. (Sec. 3) The OSC shall have access to any record or other information of any agency under its jurisdiction. The Department of Justice (DOJ) or an inspector general may withhold access to information if the disclosure could interfere with an ongoing criminal investigation or prosecution, but only if DOJ or the agency head submits a report to the OSC describing the records withheld and the reasons for the withholding. (Sec. 4) The bill: (1) extends from 15 to 45 days the period for the OSC to review a disclosed prohibited practice; (2) requires an agency to provide a detailed explanation of any failure to take action to address information about a prohibited practice transmitted to it by the OSC; and (3) requires an agency that reports agency action proposed as a result of its investigation of such information to submit a supplemental report within 180 days on whether such proposed action has been taken and, if not, why not. (Sec. 5) The OSC may terminate an investigation if: (1) it involves an allegation that has been previously made by the same person, (2) the OSC does not have jurisdiction to investigate such allegation, or (3) the person should have known of the alleged prohibited personnel practice earlier than three years before the OSC received the allegation. (Sec. 6) The bill expands the OSC's annual reporting requirements to include: (1) the cost of allegations disposed of by the OSC; (2) the number of stays or disciplinary actions that the OSC negotiates with agencies; (3) the number of corrective action petitions and disciplinary action complaints initiated before, and stays obtained from, the Merit Systems Protection Board; and (4) the number of prohibited personnel practice complaints that result in a favorable action or outcome for the complainant. The OSC must include in its publicly disclosed list of noncriminal matters referred to agencies: (1) any comments from the complainant, provided that the availability to the public is appropriate, not prohibited by law, and consented to by the complainant; and (2) the OSC's comments or recommendations. (Sec. 7) The OSC shall design and establish a pilot program in FY2017-FY2018 to survey individuals who have filed a complaint or disclosure with the OSC. The responses shall be used to improve customer service at various stages of the review or investigative process. (Sec. 8) Penalties for violations of Hatch Act prohibitions against engaging in political activities may include a combination of the disciplinary actions and the civil penalty prescribed under current law. (Sec. 9) The OSC must prescribe and publish in the Federal Register any regulations necessary for the OSC to perform functions required by amendments made by this bill.