II Calendar No. 93 115th CONGRESS 1st Session S. 582 [Report No. 115–74] IN THE SENATE OF THE UNITED STATES March 8, 2017 Mr. Johnson (for himself, Mrs. McCaskill , Mr. Grassley , Mr. Daines , and Mr. Wyden ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs May 18, 2017 Reported by Mr. Johnson , 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 2017 . 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) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to— (i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under— (I) section 1213, 1214, 1215, or 1216 of this title; or (II) section 4324(a) of title 38; (ii) 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) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under— (I) section 1213, 1214, 1215, or 1216 of this title; or (II) section 4324(a) of title 38. (B) (i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 ), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73. (ii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if— (I) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; and (II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes— (aa) the material being withheld; and (bb) the reason that the material is being withheld. (C) (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. Information on whistleblower protections (a) Agency responsibilities Section 2302 of title 5, United States Code, is amended 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 2017; 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). . (b) Training for supervisors (1) Definitions 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) of title 5, United States Code, without regard to whether any other provision of that title is applicable to the entity; and (B) the term whistleblower protections has the meaning given the term in section 2302(c)(1)(B) of title 5, United States Code, as amended by subsection (a). (2) Training required The head of each agency, in consultation with the Special Counsel and the Inspector General of that agency (or, in the case of an agency that does not have an Inspector General, the senior ethics official of that agency), shall provide the training described in paragraph (3). (3) Training described The training described in this paragraph shall— (A) cover the manner in which the agency shall respond to a complaint alleging a violation of whistleblower protections that are available to employees of the agency; and (B) be provided— (i) to each employee of the agency who— (I) is appointed to a supervisory position in the agency; and (II) before the appointment described in subclause (I), had not served in a supervisory position in the agency; and (ii) on an annual basis to all employees of the agency who serve in supervisory positions in the agency. (c) Information on appeal rights (1) In general Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to— (A) the right of the employee to appeal an action brought under the applicable section; (B) the forums in which the employee may file an appeal described in subparagraph (A); and (C) any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal. (2) Development of information The information described in paragraph (1) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission. 4. Additional whistleblower provisions (a) Prohibited personnel practices Section 2302 of title 5, United States Code, is amended— (1) in subsection (b)— (A) in paragraph (9)— (i) in subparagraph (C), by inserting (or any other component responsible for internal investigation or review) after Inspector General ; and (ii) in subparagraph (D), by inserting , rule, or regulation after law ; (B) in paragraph (12), by striking or at the end; (C) in paragraph (13), by striking the period at the end and inserting ; or ; and (D) 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). ; and (2) in subsection (f)— (A) in paragraph (1)— (i) in subparagraph (E), by striking or at the end; (ii) by redesignating subparagraph (F) as subparagraph (G); and (iii) 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 ; and (B) 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. . (b) 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 ; and (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 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). ; (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) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel. . (c) Transfer requests during stays (1) 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. . (2) 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. . (d) 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 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 . . 5. Suicide by employees (a) Definitions In this section— (1) the term agency means any entity the employees of which are covered by paragraphs (8) and (9) of section 2302(b) of title 5, United States Code, without regard to whether any other provision of that title is applicable to the entity; and (2) the term personnel action has the meaning given the term in section 2302(a)(2)(A) of title 5, United States Code. (b) Referral (1) In general The head of an agency shall refer to the Special Counsel, along with any information known to the agency regarding the circumstances described in paragraph (2), any instance in which the head of the agency has information indicating that an employee of the agency committed suicide. (2) Information The circumstances described in this paragraph are as follows: (A) Before the death of an employee described in paragraph (1), the employee made a disclosure of information that reasonably evidences— (i) a violation of a law, rule, or regulation; (ii) gross mismanagement; (iii) a gross waste of funds; (iv) an abuse of authority; or (v) a substantial and specific danger to public health or safety. (B) After a disclosure described in subparagraph (A), a personnel action was taken with respect to the employee who made the disclosure. (c) Office of Special Counsel review Upon receiving a referral under subsection (b)(1), the Special Counsel shall— (1) examine whether a personnel action was taken with respect to an employee because of a disclosure described in subsection (b)(2)(A); and (2) take any action that the Special Counsel determines is appropriate under subchapter II of chapter 12 of title 5, United States Code. 6. Protection of whistleblowers as criteria in performance appraisals (a) Establishment of systems Section 4302 of title 5, United States Code, is amended— (1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and (2) 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 (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). . (b) Criteria for performance appraisals Section 4313 of title 5, United States Code, is amended— (1) in paragraph (4), by striking and at the end; (2) in paragraph (5), by striking the period at the end and inserting ; and ; and (3) by adding at the end the following: (6) protecting whistleblowers, as described in section 4302(b)(2). . (c) 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 (a). (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 (a); (B) the reasons for the determinations described in subparagraph (A); and (C) each performance-based or corrective action taken by the agency in response to a determination under subparagraph (A). (d) 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 . 7. Discipline of supervisors based on retaliation against whistleblowers (a) In general Subchapter II of chapter 75 of title 5, United States Code, is amended by adding at the end the following: 7515. Discipline of supervisors based on retaliation against whistleblowers (a) Definitions In this section— (1) the term agency — (A) has the meaning given the term in section 2302(a)(2)(C), without regard to whether any other provision of this chapter is applicable to the entity; and (B) does not include any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 ); (2) the term prohibited personnel action means taking or failing to take an action in violation of paragraph (8) or (9) of section 2302(b) against an employee of an agency; and (3) the term supervisor means an employee who would be a supervisor, as defined in section 7103(a), if the entity employing the employee was an agency. (b) Proposed disciplinary actions (1) In general If the head of the agency in which a supervisor is employed, an administrative law judge, the Merit Systems Protection Board, the Special Counsel, a judge of the United States, or the Inspector General of the agency in which a supervisor is employed has determined that the supervisor committed a prohibited personnel action, the head of the agency in which the supervisor is employed, consistent with the procedures required under paragraph (2)— (A) for the first prohibited personnel action committed by the supervisor— (i) shall propose suspending the supervisor for a period that is not less than 3 days; and (ii) may propose an additional action determined appropriate by the head of the agency, including a reduction in grade or pay; and (B) for the second prohibited personnel action committed by the supervisor, shall propose removing the supervisor. (2) Procedures (A) Notice A supervisor against whom an action is proposed to be taken under paragraph (1) is entitled to written notice that— (i) states the specific reasons for the proposed action; and (ii) informs the supervisor about the right of the supervisor to review the material that constitutes the factual support on which the proposed action is based. (B) Answer and evidence (i) In general A supervisor who receives notice under subparagraph (A) may, not later than 14 days after receiving the notice, submit an answer and furnish evidence in support of that answer. (ii) No evidence furnished; insufficient evidence furnished If, after the end of the 14-day period described in clause (i), a supervisor does not furnish any evidence as described in that clause, or if the head of the agency in which the supervisor is employed determines that the evidence furnished by the supervisor is insufficient, the head of the agency shall carry out the action proposed under subparagraph (A) or (B) of paragraph (1). (C) Scope of procedures An action carried out under this section— (i) except as provided in clause (ii), shall be subject to the same requirements and procedures, including those with respect to an appeal, as an action under section 7503, 7513, or 7543; and (ii) shall not be subject to— (I) paragraphs (1) and (2) of section 7503(b); (II) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7513; and (III) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7543. (3) Non-delegation If the head of an agency is responsible for determining whether a supervisor has committed a prohibited personnel action for purposes of paragraph (1), the head of the agency may not delegate that responsibility. . (b) Technical and conforming amendment The table of sections for subchapter II of chapter 75 of title 5, United States Code, is amended by inserting after the item relating to section 7514 the following: 7515. Discipline of supervisors based on retaliation against whistleblowers. . 8. 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 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. . 9. 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 one 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. . 10. 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 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 (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 , 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. . (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); . (c) Notice of complaint settlements Section 1217 of title 5, United States Code, is amended— (1) by striking The Special Counsel and inserting: (a) In general The Special Counsel ; and (2) 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). . 11. 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 first full fiscal year after the date of enactment of this Act, 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. 12. Regulations (a) In general Not later than 2 years after the date of enactment of this Act, the Special Counsel shall prescribe such regulations as may be necessary to perform— (1) the functions of the Special Counsel under subchapter II of chapter 12 of title 5, United States Code, including regulations that are necessary to carry out sections 1213, 1214, and 1215 of that title; and (2) any functions of the Special Counsel that are required because of the amendments made by this Act. (b) Publication Any regulations prescribed under subsection (a) shall be published in the Federal Register. 13. 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 2017 through 2022 . (b) Effective date The amendment made by subsection (a) shall take effect as though enacted on September 30, 2015.

May 18, 2017 Reported with amendments