WHISTLEBLOWER PROTECTION ACT OF 1986

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• Collection: General CIA Records
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• Document Creation Date: December 22, 2016
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• Sequence Number: 19
• Publication Date: September 22, 1986
• Content Type: OPEN SOURCE

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H 7864 CONGRESSIONAL RECORD - HOUSE September 2? 1986
WHISTLEBLOWER PROTECTION
ACT OF 1986
Mrs. SCHROEDER. Mr. Speaker, I
move to suspend the rules and pass
the bill (H.R. 4033) to amend title 5,
United States Code, to strengthen the
protections available to Federal em-
ployees against prohibited personnel
practices, and for other purposes, as
amended.
The Clerk read as follows:
H.R.4033
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Whistle-
blower Protection Act of 1986".
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.-The Congress finds that-
(1) Federal employees who make disclo-
sures described in section 2302(b)(8) of title
5, United States Code, serve the public in-
terest by assisting in the elimination of
fraud, waste, abuse, and unnecessary Gov-
ernment expenditures:
(2) protecting employees who disclose
Government illegality, waste, and corrup-
tion is a major step toward a more effective
civil service; and
(3) in passing the Civil Service Reform Act
of 1978, Congress established the Office of
Special Counsel to provide whistleblowers
(those individuals who make disclosures de-
scribed in such section 2302(b)(8)) protec-
tion from reprisal.
(b) PURPOSES.-The purpose of this Act is
to strengthen and improve protection for
the rights of Federal employees, to prevent
reprisals, and to help eliminate wrongdoing
within the Government by-
(1) mandating that employees should not
suffer adverse consequences as a result of
prohibited personnel practices;
(2) establishing-
(A) that the primary role of the Office of
Special Counsel is to protect employees, es-
pecially whistleblowers; and
(B) that while disciplining those who
commit prohibited personnel practices may
be used as a means by which to help accom-
plish that goal, the protection of individuals
remains the paramount consideration; and
(3) providing that the Office of Special
Counsel represent employees, former em-
ployees, and applicants for employment
with the Federal Government who claim to
have been subject to prohibited personnel
practices.
SEC. 3. MERIT SYSTEMS PROTECTION BOARD;
OFFICE OF SPECIAL COUNSEL, EM.
PLOYEE RIGHT OF ACTION.
(a) IN GENERAL.-Chapter 12 of title 5,
United States Code, is amended to read as
follows:
"CHAPTER 12-MERIT SYSTEMS PROTEC-
TION BOARD; OFFICE OF SPECIAL COUN-
SEL; AND EMPLOYEE RIGHT OF ACTION
"Subchapter I-Merit Systems Proctection Board
"Sec. 1201. Appointment of members of the
Merit Systems Protection
Board.
"Sec. 1202. Term of office; filling vacancies;
removal.
"Sec. 1203. Chairman; Vice Chairman.
"Sec. 1204. Powers and functions of the
Merit Systems Protection
Board.
"Sec. 1205. Transmittal of information of
Congress.
"Sec. 1206. Annual report.
"Subchapter II-Office of Special Counsel
"Sec. 1211. Establishment.
"Sec. 1212. Powers and functions of the
Office of Special Counsel.
"Sec. 1213. Provisions relating to disclosures
of violations of law, misman-
agement, and certain other
matters.
"Sec. 1214. Investigation of prohibited per-
sonnel practices; corrective
action.
"Sec. 1215. Disciplinary action.
"Sec. 1216. Other mattters within the juris-
diction of the Office of Special
Counsel.
"Sec. 1217. Transmittal of information of
Congress.
"Sec. 1218. Annual report.
"Subchapter III-Individual Right of Action in
Cases Involving Prohibited Personnel Practices
"Sec. 1221. Individual right of action.
"Subchapter I-Merit Systems Protection
Board
'*? 1201. Appointment of members of the Merit
Systems Protection Board
"The Merit Systems Protection Board is
composed of 3 members appointed by the
President, by and with the advice and con-
sent of the Senate, not more than 2 of
whom may be adherents of the same politi-
cal party. The members of the Board shall
be individuals, who, by demonstrated abili-
ty, background, training, or experience are
especially qualified to carry out the func-
tions of the Board. No member of the Board
may hold another office or position in the
Government of the United States, except as
otherwise provided by law or at the direc-
tion of the President. The Board shall have
an official seal which shall be judicially no-
ticed. The Board shall have its principal
office In the District of Columbia and may
have field offices in other appropriate loca-
tions.
"? 1202. Term of office; filling vacancies; removal
"(a) The term of office of each member of
the Merit Systems Protection Board is 7
years.
"(b) A member appointed to fill a vacancy
occurring before the end of a term of office
of the member's predecessor serves for the
remainder of that term. Any appointment
to fill a vacancy is subject to the require-
ments of section 1201.
"(c) Any member appointed for a 7-year
term may not be reappointed to any follow-
ing term but may continue to serve beyond
the expiration of the term until a successor
is appointed and has qualified, except that
such member may not continue to serve for
more than 1 year after the date on which
the term of the member would otherwise
expire under this section.
"(d) Any member may be removed by the
President only for inefficiency, neglect of
duty, or malfeasance in office.
"@ 1203. Chairman; Vice Chairman
"(a) The President shall from time to time
appoint, by and with the advice and consent
of the Senate, one of the members of the
Merit Systems Protection Board as the
Chairman of the Board. The Chairman is
the chief executive and administrative offi-
cer of the Board.
"(b) The President shall from time to time
designate one of the members of the Board
as Vice Chairman of the Board. During the
absence or disability of the Chairman, or
when the office of Chairman is vacant, the
Vice Chairman shall perform the functions
vested in the Chairman.
"(c) During the absence or disability of
both the Chairman and the Vice Chairman,
or when the offices of Chairman and Vice
Chairman are vacant, the remaining Board
member shall perform the functions vested
in the Chairman.
? 1204. Powers and functions of the Merit Sys-
tems Protection Board
"(a) The Merit System Protection Board
shall-
"(1) hear, adjudicate, or provide for the
hearing or adjudication, of all matters
within the jurisdiction of the Board under
this title, section 2023 of title 38, or any
other law, rule, or regulation, and, subject
to otherwise applicable provisions of law,
take final action on any such matter;
"(2) order any agency or employee to
comply with any order or decision issued by
the Board under the authority granted
under paragraph (1) and enforce compliance
with any such offer;
"(3) conduct, from time to time, special
studies relating to the civil service and to
other merit systems in the executive
branch, and report to the President and to
the Congress as to whether the public inter-
est in a civil service free of prohibited per-
sonnel practices is being adequately protect-
ed; and
"(4) review, as provided in subsection (f),
rules and regulations of the Office of Per-
sonnel Management.
"(b)(1) Any member of the Merit Systems
Protection Board, any administrative law
judge appointed by the Board under section
3105, and any employee of the Board desig-
nated by the Board may administer oaths,
examine witnesses, take depositions, and re-
ceive evidence.
"(2) Any member of the Board, any ad-
ministrative law judge appointed by the
Board under section 3105, and any employee
of the Board designated by the Board may,
with respect to any individual-
"(A) issue subpoenas requiring the attend-
ance and presentation of testimony, and the
production of documentary or other evi-
dence, by such individual from any place in
the United States, any territory or posses-
sion of the United States, the Common-
wealth of Puerto Rico, or the District of Co-
lumbia; and
"(B) order the taking of depositions from,
and responses to written interrogatories by.
any such individual.
"(3) Witnesses (whether appearing volun-
tarily or under subpoena) shall be paid the
same fee and mileage allowances which are
paid subpoenaed witnesses in the courts of
the United States.
"(c) In the case of contumacy or failure to
obey a subpoena issued under subsection
(b)(2)(A), the United States district court
for the district in which the person to whom
the supoena is addressed resides or is served
may issue an order requiring such person to
appear at any designated place to testify or
to produce documentary or other evidence.
Any failure to obey the order of the court
may be punished by the court as a contempt
thereof.
"(d) A subpoena referred to in subsection
(b)(2)(A) may, in the case of any individual
outside the territorial jurisdiction of any
court of the United States, be served in such
manner as the Federal Rules of Civil Proce-
dure prescribe for service of a subpoena in a
foreign country. To the extent that the
courts of the United States can assert juris-
diction over such individual, the United
States District Court for the District of Co-
lumbia shall have the same jurisdiction to
take any action respecting compliance
under this subsection by such individual
that such court would have if such individ-
ual were personally within the jurisdiction
of such court.
"(e)(1) In any proceeding under subsec-
tion (a)(1), any member of the Board may
request from the Director of the Office of
Personnel Management an advisory opinion
concerning the interpretation of any rule,
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September 22, 1986 CONGRESSIONAL RECORD - HOUSE
regulation, or other policy directive promul-
gated by the Office of Personnel Manage-
ment.
"(2)(A) In enforcing compliance with any
order under subsection (a)(2), the Board
may order that any employee charged with
complying with such order, other than an
employee appointed by the President by and
with the advice and consent of the Senate,
shall not be entitled to receive payment for
service as an employee during any period
that the order has not been complied with.
The Board shall certify to the Comptroller
General of the United States that such an
order has been issued, and no payment shall
be made out of the Treasury of the United
States for any service specified in such
order.
"(B) The Board shall prescribe regulations
under which any employee who is aggrieved
by the failure of any other employee to
comply with an order of the Board may pe-
tition the Board to exercise its authority
under subparagraph (A).
"(3) In carrying out any study under sub-
section (a)(3), the Board shall make such in-
quiries as may be necessary and, unless oth-
erwise prohibited by law, shall have access
to personnel records or information collect-
ed by the Office of Personnel Management
and may require additional reports from
other agencies as needed.
"(f)(1) At any time after the effective date
of any rule or regulation issued by the Di-
rector of the Office of Personnel Manage-
ment in carrying out functions under sec-
tion 1103, the Board shall review any provi-
sion of such rule or regulation-
"(A) on its own motion;
"(B) on the granting by the Board, in its
sole discretion, of any petition for such
review filed with the Board by any interest-
ed person, after consideration of the peti-
tion by the Board; or
"(C) on the filing of a written complaint
by the Special Counsel requesting such
review.
"(2) In reviewing any provision of any rule
or regulation pursuant to this subsection,
the Board shall declare such provision-
"(A) invalid on its face, if the Board deter-
mines that such provision would, if imple-
mented by any agency, on its face, require
any employee to violate section 2302(b); or
"(B) invalidly implemented by any agency,
if the Board determines that such provision,
as it has been implemented by the agency
through any personnel action taken by the
agency or through any policy adopted by
the agency in conformity with such provi-
sion, has required any employee to violate
section 2302(b).
"(3) The Director of the Office of Person-
nel Management, and the head of any
agency implementing any provision of any
rule or regulation under review pursuant to
this subsection, shall have the right to par-
ticipate in such review.
"(4) The Board shall require any agency-
"(A) to cease compliance with any provi-
sions of any rule or regulation which the
Board declares under this subsection to be
invalid on its face: and
"(B) to correct any invalid implementa-
tion by the agency of any provision of any
rule or regulation which the Board declares
under this subsection to have been invalidly
implemented by the agency.
"(g) The Chairman of the Board may del-
egate any of the Chairman's administrative
responsibilities under this title to any em-
ployee of the Board.
"(h) The Board shall have the authority
to prescribe such regulations as may be nec-
essary for the performance of its functions.
The Board shall not issue advisory opinions.
All regulations of the Board shall be pub-
lished in the Federal Register.
"(i) Except as provided in section 518 of
title 28, relating to litigation before the Su-
preme Court, attorneys designated by the
Chairman of the Board may appear for the
Board, and represent the Board, in any civil
action brought in connection with any func-
tion carried out by the Board pursuant to
this title or as otherwise authorized by law.
"(J) The Chairman of the Board may ap-
point such personnel as may be necessary to
perform the functions of the Board. Any ap-
pointment made under this subsection shall
comply with the provisions of this title,
except that such appointment shall not be
subject to the approval or supervision of the
Office of Personnel Management or the Ex-
ecutive Office of the President (other than
approval required under section 3324 or sub-
chapter VIII of chapter 33).
"(k) The Board shall prepare and submit
to the President, and, at the same time, to
the appropriate committees of Congress, an
annual budget of the expenses and other
items relating to the Board which shall, as
revised, be included as a separate item in
the budget required to be transmitted to the
Congress under section 1105 of title 31.
"(1) The Board shall submit to the Presi-
dent, and, at the same time, to each House
of the Congress, any legislative recommen-
dations of the Board relating to any of its
functions under this title.
'T 1205. Transmittal of information to Congress
"Notwithstanding any other provision of
law or any rule, regulation, or policy direc-
tive, any member of the Board, or any em-
ployee of the Board designated by the
Board, may transmit to the Congress on the
request of any committee or subcommittee
thereof, by report, testimony, or otherwise,
information and views on functions, respon-
sibilities, or other matters relating to the
Board, without review, clearance, or approv-
al by any other administrative authority.
" 0 1206. Annual report
"The Board shall submit an annual report
to the President and the Congress on its ac-
tivities, which shall include a description of
significant actions taken by the Board to
carry out its functions under this title. The
report shall also review the significant ac-
tions of the Office of Personnel Manage-
ment, including an anlysis of whether the
actions of the Office of Personnel Manage-
ment are in accord with merit system princi-
ples and free from prohibited personnel
practices.
"Subchapter II-Office of Special Counsel
"111211. Establishment
"(a) There is established the Office of
Special Counsel, which shall be headed by
the Special Counsel. The Office shall have
an official seal which shall be judicially no-
ticed. The Office shall have its principal
office in the District of Columbia and shall
have field offices in other appropriate loca-
tions.
"(b) The Special Counsel shall be appoint-
ed by the President, by and with the advice
and consent of the Senate, for a term of 5
years. The Special Counsel shall be an indi-
vidual who, by demonstrated ability, back-
ground, training, or experience, is especially
qualified to carry out the functions of the
position. A Special Counsel appointed to fill
a vacancy occurring before the end of a
term of office of the Special Counsel's pred-
ecessor serves for the remainder of the
term. The Special Counsel may be removed
by the President only for inefficiency, ne-
glect of duty, or malfeasance in office. The
Special Counsel may not hold another office
or position in the Government of the United
States, except as otherwise provided by law
or at the direction of the President.
H 7865
"01212. Powers and functions of the Office of
Special Counsel
"(a) The Office of Special Counsel shall-
"(1) in accordance with applicable provi-
sions of this subchapter, represent and act
on behalf of employees, former employees,
and applicants for employment alleging pro-
hibited personnel practices;
"(2) receive and investigate allegations of
prohibited personnel practices, and, where
appropriate-
"(A) bring petitions for stays, and peti-
tions for corrective action, under section
1214; and
"(B) file a complaint or make recommen-
dations for disciplinary action under section
1215;
"(3) receive, review, and, where appropri-
ate, forward to the Attorney General or an
agency head under section 1213, disclosures
of violations of any law, rule, or regulation,
or mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and
specific danger to public health or safety;
"(4) review rules and regulations issued by
the Director of the Office of Personnel
Management in carrying out functions
under section 1103 and, where the Special
Counsel finds that any such rule or regula-
tion would, on its face or as implemented,
require the commission of a prohibited per-
sonnel practice, file a written complaint
with the Board; and
"(5) investigate and bring appropriate ac-
tions concerning allegations of violations of
other laws within the jurisdiction of the
Office of Special Counsel (as referred to in
section 1216).
"(b)(1) The Special Counsel and any em-
ployee of the Office of Special Counsel des-
ignated by the Special Counsel may admin-
ister oaths, examaine witnesses, take deposi-
tions, and receive evidence.
"(2) The Special Counsel may-
"(A) issue subpoenas; and
"(B) order the taking of depositions and
order responses to written interrogatives;
in the same manner as provided under sec-
tion 1204.
"(3) Section 1204(c), and the second sen-
tence of section 1204(d), shall apply in the
case of contumacy or failure to obey a sub-
poena issued under this subsection.
"(4) Witnesses (whether appearing volun-
tarily or under subpoena) shall be paid the
same fee and mileage allowances which are
paid subpoenaed witnesses in the courts of
the United States.
"(c) Except as provided in section 518 of
title 28, relating to litigation before the Su-
preme Court, attorneys designated by the
Special Counsel may appear for the Office
of Special Counsel, and represent the
Office, in any civil action brought in connec-
tion with any function carried out by the
Office pursuant to this title or as otherwise
authorized by law.
"(d)(1) Except as provided in paragraph
(2), the Special Counsel may as a matter of
right intervene or otherwise participate in
any proceeding before the Merit Systems
Protection Board, except that the Special
Counsel shall comply with the rules of the
Board.
"(2) The Special Counsel may intervene or
otherwise participate in an action brought
by an individual under section 1221 or in an
appeal brought by an employee under sec-
tion 7701 only with the consent of such indi-
vidual or employee.
"(3) (A) The Special Counsel may obtain
Judicial review of any final order or decision
of the Merit Systems Protection Board in
which the Special Counsel was a party.
"(B) A petition for review under this para-
graph shall be filed with such court, and
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H 7866 CONGRESSIONAL RECORD - HOUSE
within such time, as provided for under sec-
tion 7703(b).
"(e) (1) The Special Counsel may appoint
the legal, administrative, and support per-
sonnel necessary to perform the functions
of the Special Counsel.
"(2) Any appointment made under this
subsection shall be made in accordance with
the provisions of this title, except that such
appointment shall not be subject to the ap-
proval or supervision of the Office of Per-
sonnel Management or the Executive Office
of the President (other than approval re-
quired under section 3324 or subchapter
VIII of chapter 33).
"(f) The Special Counsel may prescribe
regulations relating to the receipt and inves-
tigation of matters under the jurisdiction of
the Special Counsel. Such regulations shall
be published in the Federal Register.
"(g) The Special Counsel shall not issue
any advisory opinion concerning any law,
rule, or regulation (other than an advisory
opinion concerning chapter 15 or subchap-
ter III of chapter 73).
1213. Provisions relating to disclosures of vio-
lations of law, mismanagement, and certain
other matters
"(a) This section applies with respect to-
"(1) any disclosure of information by an
employee, former employee, or applicant for
employment which the employee, former
employee, or applicant reasonably believes
evidences-
"(A) a violation of any law, rule, or regula-
tion; or
"(B) mismanagement, a gross waste of
funds, an abuse of authority, or a substan-
tial and specific danger to public health or
safety;
if such disclosure is not specifically prohibit-
ed by law and if such information is not
specifically required by Executive order to be
kept secret in the interest of national defense
of the conduct of foreign affairs; and
"(2) any disclosure by an employee,
former employee, or applicant for employ-
ment to the Special Counsel or to the In-
spector General of an agency or another
employee designated by the head of the
agency to receive such disclosures of infor-
mation which the employee, former employ-
ee, or applicant reasonably believes evi-
dences-
"(A) a violation of any law, rule, or regula-
tion: or
"(B) mismanagement, a gross waste of
funds, an abuse of authority, or a substan-
tial and specific danger to public health or
safety.
"(b) Whenever the Special Counsel re-
ceives information of a type described in
subsection (a). the Special Counsel shall
review such information and, within 15 days
after receiving the information, determine
whether there is a substantial likelihood
that the information discloses a violation of
any law, rule, or regulation, or mismanage-
ment, gross waste of funds, abuse of author-
ity, or substantial and specific danger to
public health and safety.
"(c)(1) Subject to paragraph (2), if the
Special Counsel makes a positive determina-
tion under subsection (b), the Special Coun-
sel shall promptly transmit the information
with respect to which the determination
was made to the appropriate agency head
and require that the agency head-
"(A) conduct an investigation with respect
to the information and any related matters
transmitted by the Special Counsel to the
agency head; and
"(B) submit a written report setting forth
the findings of the agency head within 60
days after the date on which the informa-
tion is transmitted to the agency head or
within any longer period of time agreed to
in writing by the Special Counsel.
"(2) The Special Counsel may require an
agency head to conduct an investigation and
submit a written report under paragraph (1)
only if the information was transmitted to
the Special Counsel by-
"(A) an employee, former employee, or ap-
plicant for employment in the agency which
the information concerns; or
"(B) an employee who obtained the infor-
mation in connection with the performance
of the employee's duties and responsibil-
ities.
"(d) Any report required under subsection
(c) shall be reviewed and signed by the head
of the agency and shall include-
"(1) a summary of the information with
respect to which the investigation was initi-
ated;
"(2) a description of the conduct of the in-
vestigation;
"(3) a summary of any evidence obtained
from the investigation;
"(4) a listing of any violation or apparent
violation of any law, rule, or regulation; and
"(5) a description of any action taken or
planned as a result of the investigation,
such as-
"(A) changes in agency rules, regulations,
or practices;
"(B) the restoration of any aggrieved em-
ployee;
"(C) disciplinary action against any em-
ployee; and
"(D) referral to the Attorney General of
any evidence of a criminal violation.
"(e)(1) Any such report shall be submitted
to the Congress, to the President, and to the
Special Counsel for transmittal to the com-
plainant. Whenever the Special Counsel
does not receive the report of the agency
head within the time prescribed in subsec-
tion (c)(1)(B), the Special Counsel shall
transmit a copy of the information which
was received by the agency head to the
President and to the Congress, together
with a statement noting the failure of the
agency head to file the required report.
"(2) In any case in which evidence of a
criminal violation obtained by an agency in
an investigation under subsection (c) is re-
ferred to the Attorney General-
"(A) the report shall not be transmitted to
the complainant; and
"(B) the agency shall notify the Office of
Personnel Management and the Office of
Management and Budget of the referral.
"(f) Upon the receipt of any report of any
agency head as required under subsection
(c), the Special Counsel shall review the % report and determine whether-
"(1) the findings of the agency head
appear reasonable; and
"(2) the report contains the information
required under subsection (d).
"(g) If the Special Counsel does not make
a positive determination under subsection
(b), or if the information (as described in
subsection (a)) is transmitted to the Special
Counsel other than by an individual de-
scribed in subparagraph (A) or (B) of sub-
section (c)(1), the Special Counsel-
"(1) shall return any information and any
other matter provided by the individual who
made the disclosure: and
"(2) shall inform that individual of-
"(A) the reasons why the disclosure may
not be further acted on under this chapter;
and
"(B) any recourse (administrative or oth-
erwise) available under law, rule, or regual-
tion, should the individual wish to purse the
matter further.
"(h)(1) Subject to paragraph (2), the Iden-
tity of any employee, former employee, or
applicant for employment who makes a dis-
September 22, 1986
closure described in subsection (a) may not
be disclosed by the Special Counsel without
the consent of the employee, former em-
ployee, or applicant unless the Special
Counsel determines that the disclosures of
the identity of the employee, former em-
ployee, or applicant is necessary in order to
carry out the functions of the Special Coun-
sel.
"(2) The identity of any employee, former
employee, or applicant for employment
whose disclosure (as described in subsection
(a)) may not, under subsection (g), be fur-
ther acted on under this chapter may not be
disclosed under any circumstances.
"(I) Except as specifically authorized
under this section, the provisions of this sec-
tion shall not be considered to authorize dis-
closure of any information by any agency or
any person which is-
"(1) specifically prohibited from disclo-
sure by any other provision of law; or
"(2) specifically required by Executive
order to be kept secret in the Interest of na-
tional defense or the conduct of foreign af-
fairs.
"(j) With respect to any disclosure of in-
formation described in subsection (a) which
involves foreign intelligence or counterintel-
ligence information, if the disclosure is spe-
cifically prohibited by law or by Executive
order, the Special Counsel shall transmit
such information to the Permanent Select
Committee on Intelligence of the House of
Representatives and the Select Committee
on Intelligence of the Senate.
"(k) The Special Counsel shall maintain
and make available to the public a list of
noncriminal matters referred to heads of
agencies under subsection (c), together with
reports by the heads of agencies under sub-
section (c)(1)(B) relating to such matters.
The Special Counsel shall take steps to
ensure that any such public list does not
contain any information the disclosure of
which is prohibited by law or by Executive
order requiring that information be kept
secret in the interest of national defense or
the conduct of foreign affairs.
"!31214. Investigation of prohibited personnel
practices; corrective action
"(a)(1) The Special Counsel shall receive
any allegation of a prohibited personnel
practice and shall investigate the allegation
to the extent necessary to determine wheth-
er there are reasonable grounds to believe
that a prohibited personnel practice has oc-
curred, exists, or is to be taken.
"(2) If the Special Counsel terminates any
investigation under paragraph (1), the Spe-
cial Counsel shall prepare and transmit to
any person on whose allegation the investi-
gation was initiated a written statement no-
tifying the person of the termination of the
investigation, the findings of fact ascer-
tained during the course of the investiga-
tion, and the reasons for terminating the in-
vestigation.
"(3) In addition to any authority granted
under paragraph (1), the Special Counsel
may. in the absence of an allegation, con-
duct an investigation for the purpose of de-
termining whether there are reasonable
grounds to believe that a prohibited person-
nel practice (or a pattern of prohibited per-
sonnel practices) has occurred, exists, or is
to be taken.
"(b)(1)(A)(i) The Special Counsel may re-
quest any member of the Merit Systems
Protection Board to order a stay of any per-
sonnel action for 45 days if the Special
Counsel determines that there are reasona-
ble grounds to believe that the personnel
action was taken, or is to be taken, as a
result of a prohibited personnel practice.
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CONGRESSIONAL RECORD - HOUSE H 7867
"(ii) Any member of the Board requested
by the Special Counsel to order a stay under
clause (i) shall order such stay unless the
member determines that, under the facts
and circumstances involved, such a stay
would not be appropriate.
"(iii) Unless denied under clause (ii), any
stay under this subparagraph shall be
granted within 3 calendar days (excluding
Saturdays, Sundays, and legal holidays)
after the date of the request for the stay by
the Special Counsel.
"(B) The Board may extend the period of
any stay granted under subparagraph (A)
for any period which the Board considers
appropriate.
"(2)(A) If, during the pendency of a stay
ordered under paragraph (1), the agency
does not act to correct the prohibited per-
sonnel practice, the Special Counsel shall
petition the Board for corrective action.
"(B) If the Special Counsel finds, in con-
sultation with the individual subject to the
prohibited personnel practice, that the
agency has acted to correct the prohibited
personnel practice, the Special Counsel
shall file such finding with the Board, to-
gether with any written comments which
the Individual may provide.
"(3)(A) Whenever the Special Counsel pe-
titions the Board for corrective action, the
Board shall provide an opportunity for oral
or written comments by the Special Coun-
sel, the agency involved, and any individual
who alleges to be the subject of the prohib-
ited personnel practice.
"(B)(1) Subject to clause (ii), the Board
shall order such corrective action as the
Board considers appropriate if the Board
determines that the Special Counsel has
demonstrated that a prohibited personnel
practice has occurred, exists, or is to be
taken, by-
"(I) substantial evidence, in the case of a
prohibited personnel practice described in
section 2302(b)(8); or
"(II) a preponderance of the evidence, in
the case of a prohibited personnel practice
other than one described in section
2302(b)(8).
"(ii) Corrective action under clause (i)
shall not be ordered-
"(I) if the personnel action involved is jus-
tified on a basis independent of the prohib-
ited personnel practice referred to in clause
(I); and
"(II) if the agency demonstrates, by a pre-
ponderance of the evidence, that such per-
sonnel action was taken, or is to be taken,
solely for the reason under subclause (I).
"(c)(1) Judicial review of any final order
or decision of the Board under this section
may be obtained-
"(A) by any employee, former employee,
or applicant for employment adversely af-
fected by such order or decision; or
"(B) by the Special Counsel.
"(2) A petition for review under this sub-
section shall be filed with such court, and
within such time, as provided for under sec-
tion 7703(b).
"(d)(1) If, in connection with any investi-
gation under this subchapter, the Special
Counsel determines that there is reasonable
cause to believe that a criminal violation
has occurred, the Special Counsel shall
report the determination to the Attorney
General and to the head of the agency in-
volved, and shall submit a copy of the
report to the Director of the Office of Per-
sonnel Management and the Director of the
Office of Management and Budget.
"(2) In any case in which the Special
Counsel determines that there are reasona-
ble grounds to believe that a prohibited per-
sonnel practice has occurred, exists, or is to
be taken, the Special Counsel shall proceed
with any investigation or proceeding insti-
tuted under this subchapter notwithstand-
ing that the alleged violation has been re-
ported to the Attorney General.
"(e) If, in connection with any investiga-
tion under this subchapter, the Special
Counsel determines that there is reasonable
cause to believe that any violation of any
law, rule, or regulation has occurred other
than one referred to in subsection (b) or (d),
the Special Counsel shall report such viola-
tion to the head of the agency involved. The
Special Counsel shall require, within 30
days after the receipt of the report by the
agency, a certification by the head of the
agency which states-
"(1) that the head of the agency has per-
sonally reviewed the report; and
"(2) what action has been or is to be
taken, and when the action will be complet-
ed.
"(f) During any investigation initiated
under this subchapter, no disciplinary
action shall be taken against any employee
for any alleged prohibited activity under in-
vestigation or for any related activity with-
out the approval of the Special Counsel.
"0 1215. Disciplinary action
"(a)(1) Except as provided in subsection
(b), if the Special Counsel determines that
disciplinary action should be taken against
any employee for having-
"(A) committed a prohibited personnel
practice,
"(B) violated the provisions of any law,
rule, or regulation, or engaged in any other
conduct within the jurisdiction of the Spe-
cial Counsel as described in section 1216, or
"(C) knowingly and willfully refused or
failed to comply with an order of the Merit
Systems Protection Board,
the Special Counsel shall prepare a written
complaint against the employee containing
the Special Counsel's determination, togeth-
er with a statement of supporting facts, and
present the complaint and statement to the
employee and the Board, in accordance with
this subsection.
"(2) Any employee against whom a com-
plaint has been presented to the Merit Sys-
tems Protection Board under paragraph (1)
is entitled to-
"(A) a reasonable time to answer orally
and in writing, and to furnish affidavits and
other documentary evidence in support of
the answer;
"(B) be represented by an attorney or
other representative;
"(C) a hearing before the Board or an ad-
ministrative law judge appointed under sec-
tion 3105 and designated by the Board;
"(D) have a transcript kept of any hearing
under subparagraph (C); and
"(E) a written decision and reasons there-
for at the earliest practicable date, includ-
ing a copy of any final order imposing disci-
plinary action.
"(3) A final order of the Board may
impose disciplinary action consisting of re-
moval, reduction in grade, debarment from
Federal employment for a period not to
exceed 5 years, suspension, reprimand, or an
assessment of a civil penalty not to exceed
$ 1,000.
"(4) There may be no administrative
appeal from an order of the Board. An em-
ployee subject to a final order imposing dis-
ciplinary action under this subsection may
obtain judicial review of the order by filing
a petition therefor with such court, and
within such time, as provided for under sec-
tion 7703(b).
"(5) In the case of any State or local offi-
cer or employee under chapter 15, the
Board shall consider the case in accordance
with the provisions of such chapter.
"(b) In the case of an employee in a confi-
dential, policy-making, policy-determining,
or policy-advocating position appointed by
the President, by and with the advice and
consent of the Senate (other than an indi-
vidual in the Foreign Service of the United
States), the complaint and statement re-
ferred to in subsection (a)(1), together with
any response of the employee, shall be pre-
sented to the President for appropriate
action in lieu of being presented under sub-
section (a).
"(c)(1)(A) In the case of an individual
under clause (i) or (ii) of subparagraph (B),
the Special Counsel may transmit recom-
mendations for disciplinary or other appro-
priate action (including the evidence on
which such recommendations are based) to
the head of the Federal agency concerned.
"(B) This subsection applies with respect
to-
"(i) members of the uniformed services;
and
"(ii) individuals employed by any person
under contract with an agency to provide
goods or services.
"(2) In any case in which the Special
Counsel transmits recommendations to an
agency head under paragraph (1), the
agency head shall, within 60 days after re-
ceiving such recommendations, transmit a
report to the Special Counsel on each rec-
ommendation and the action taken, or pro-
posed to be taken, with respect to each such
recommendation.
61216. Other matters within the jurisdiction of
the Office of Special Counsel
"(a) In addition to the authority other-
wise provided in this chapter, the Special
Counsel shall, except as provided in subsec-
tion (b), conduct an investigation of any al-
legation concerning-
"(1) political activity prohibited under
subchapter III of chapter 73, relating to po-
litical activities by Federal employees;
"(2) political activity prohibited under
chapter 15, relating to political activities by
certain State and local officers and employ-
ees;
"(3) arbitrary or capricious withholding of
information prohibited under section 552,
except that the Special Counsel shall make
no investigation of any withholding of for-
eign intelligence or counterintelligence in-
formation the disclosure of which is specifi-
cally prohibited by law or by Executive
order;
"(4) activities prohibited by any civil serv-
ice law, rule, or regulation, including any ac-
tivity relating to political intrusion in per-
sonnel decisionmaking; and
"(5) involvement by any employee in any
prohibited discrimination found by any
court or appropriate administrative author-
ity to have occurred in the course of any
personnel action.
"(b) The Special Counsel shall make no
investigation of any allegation of any pro-
hibited activity referred to in subsection
(a)(5) if the Special Counsel determines
that the allegation may be resolved more
appropriately under an administrative ap-
peals procedure.
"(c)(1) If an investigation by the Special
Counsel under subsection (a)(1) substanti-
ates an allegation relating to any activity
prohibited under section 7324, the Special
Counsel may petition the Merit Systems
Protection Board for any penalties provided
for under section 7325.
"(2) If the Special Counsel receives allega-
tions of activities described in subsection
(a)(4) or involvement described in subsec-
tion (a)(5), the Special Counsel may investi-
gate and seek corrective action under sec-
tion 1214 and, if appropriate, disciplinary
action under section 1215 as if the activities
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or involvement were a prohibited personnel Board determines that the individual has "(9) take or fail to take any personnel
practice. demonstrated that a prohibited personnel action against any employee or applicant
'!i 1217. Transmittal of information to Congress practice has occurred, exists, or is to be for employment as a reprisal-
"Notwithstanding any other provision of taken, by- "(A) for the exercise of any appeal, com-
law or any rule, regulation, or policy direc- "(A) substantial evidence, in the case of a plaint, or grievance right granted by any
tive, the Special Counsel or any employee of prohibited personnel practice described in law, rule, or regulation;
the Special Counsel designated by the Spe- section 2302(b)(8); or "(B) for testifying for or otherwise lawful-
th
cial
e Counsel, may transmit toed Congress "(B) a preponderance of the evidence, in ly assisting any individual in the exercise of
on the request of any committee or subcom- the case of a prohibited personnel practice any right referred to in subparagraph (A);
mittee, thereof, by report, testimony, or other than one described in section "(C) for cooperating with or disclosing in-
otherwise, information and views on func- 2302(b)(8). formation to the Inspector General of an
lions, responsibilities, or other matters re- "(2) Corrective action under paragraph (1) agency, or the Special Counsel, in accord-
lating to the Office, without review, clear- shall not be ordered- ante with applicable provisions of law; or
ance, or approval by any other review, clear- "(A) if the personnel action involved is "(D) for failing to follow orders to disobey
five authority. justified on a basis Independent of the pro- a law;".
"91218 Annual report hibited personnel practice referred to in
paragraph (1); and SEC. 6. TENNESSEE VALLEY AUTHORITY.
"The Special Counsel shall submit an "(B) if the agency demonstrates, by a pre- Section 2303(a)(2)(C)(i) of title 5, United
annual report to the Congress on the activi- ponderance of the evidence, that such per- States Code, is amended to read as follows:
ties of the Special Counsel, including the sonnel action was taken, is or to be taken, "(I) a Government corporation (other
number, types and disposition of allegations solely for the reason under subparagraph than the Tennessee Valley Authority);".
of prohibited personnel practices filed with (A). SEC. 7. INTERIM RELIEF.
it, investigations conducted by it, and ac- "(e)(1) A final order or decision shall be Section 7701(b) of title 5, United States
tions initiated by it before the Merit Sys- rendered by the Board within 90 days after
tems Protection Board, as well as a descrip- the commencement of any proceeding under Code, followin is by adding
amended event at the end the
tion of the recommendations and reports this section. or applicn tfor the e employment nt that h is thehe a prevail-
made yee
by it to other agencies pursuant to "(2) A decision to terminate an investiga- in g in an appeal under this subsection,
this subchapter, and the actions taken by tion under subchapter II may not be consid- the party employee or applicant be granted
the agencies as a result of the reports or ered in any action or other proceeding the the relief provided applicant decision pending
recommendations. The report required by under this section. relief i any the don o pending
this section shall Include whatever recom- "(f) If an employee, former employee, or the outcome of any petition for review under in
mendations for legislation or other action applicant for employment is the prevailing this sentence subsection (u), except that nothing of
by Congress the Special Counsel may con- party, and the decision is based on a finding this sentence requires that any award of
sider appropriate. of a prohibited personnel
tice, the back a decision ny has attorney nas be paid before the
pras become final.".
"Subchapter III-Individual Right of Action agency involved shall be liable to the em-
in Cases Involving Prohibited Personnel ployee, former employee, or applicant for SEC. 8. SAVINGS PROVISIONS.
Practices reasonable attorney's fees and any other
" it 1221. Individual right of action costs incurred.
"(a) An employee, former employee, or ap- (g)(1) An employee, former employee, or
plicant for employment may, with respect applicant or aggrieved for d by a final order adversely decision
to any personnel action taken, or proposed of the Board aoard rd under this section by a final or dai
to be taken, against such employee, former judicial review of the of order or ddmay obtain
employee, or applicant for employment, as a rr review under this of a prohibited personnel practice, c(ion A petition shall lbe filed with for review such hthis sub-
result
corrective action from the Merit Sys- within such time, a , a provided for court, and
tems Protection Board. within provd under sec-
13(b).
"(b)(1) Any employee, former employee, "(h)(1) 7703(b).
or applicant for employment seeking correc- proceedings before u eligible to commence
tive action under subsection (a) may request the Board under this
that the Board order a stay of the personnel prohibited section adings section el 7513(d) with respect to a
action involved. personnel practice may com-
"(2) Any stay requested under paragraph mence proceedings under either such sec-
(1) shall be granted within 10 calendar days lion, but not both.
(excluding Saturdays, Sundays, and legal apply "(y Subsections any y proceeding (a) brought und nd shall
holidays)
holidays) after the date the request is made, 7513(d) if, to the brought er sec-
the Board determines- hibited edpersonnel , practice is ctic extent that,
that there is not a substantial likeli- (b) CONFORMING mEND E T.-The
hood that the individual will prevail; or sir for part II of A title 5 MEND of MN the United TStates
"(B) that granting the stay would result in States
extreme hardship to the agency which Code is amended by striking the item relat-
would be subject to the order. ing to chapter 12 and inserting the follow-
"(3)(A) Except as provided in aubpara- ing'
graph (B), a stay granted under this subsec- "12. Merit Systems Protection Board, Office
of tion shall remain in effect until a final order Spe Counsel, and E.
or decision is rendered by the Board. ployee Rig ht of Action 1201".
"(B) The Board may modify or dissolve a SEC. 4. JUDICIAL REVIEW.
stay under this subsection at any time upon (a) NAMED RESPONDENT.-Section
(a) ORDERS, RULES, AND REGULATIONS.-All
orders, rules, and regulations Issued by the
Merit Systems Protection Board or the Spe-
cial Counsel before the effective date of this
Act shall continue in effect, according to
their terms, until modified, terminated, su-
perseded, or repealed.
(b) ADMINISTRATIVE PROCEEDINGS.-No pro-
vision of this Act shall affect any adminis-
trative proceedings pending at the time
such provisions take effect. Orders shall be
issued in such proceedings, and appeals
shall be taken therefrom, as if this Act has
not been enacted.
(C) SUITS AND OTHER PROCEEDINGS.-No
suit, action, or other proceeding lawfully
commenced by or against the members of
the Merit Systems Protection Board, the
Special Counsel, or officers or employees
thereof, in their official capacity or in rela-
tion to the discharge of their official duties,
as in effect immediately before the effective
date of this Act, shall abate by reason of the
enactment of this Act. Determinations with
respect to any such suit, action, or other
proceeding shall be made as if this Act had
not been enacted.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS; RE-
STRICTION RELATING TO APPROPRIA-
TIONS UNDER THE CIVIL SERVICE
REFORM ACT OF 1978.
a showing by the agency involved that a 7703(a)(2) of title 5, United States Code, is (a) AUTHORIZATION OF APPROPRIATIONS.-
failure to grant the request to modify or dis- amended to read as follows: There are authorized to be appropriated,
solve the stay (as the case may be) would "(2)(A) Except as provided in subpara- out of any moneys in the Treasury not oth-
result in extreme hardship to the agency. graph (B), the Board shall be the named re- erwise appropriated-
"(c)(1) At the request of an employee, spondent In any proceeding brought pursu- (1) for each of fiscal years 1987, 1988,
former employee, or applicant for employ- ant to this subsection. 1989, 1990, and 1991, $20,000,000 to carry
ment seeking corrective action under sub- "(B) If the employee or applicant for em- out subchapter I of chapter 12 of title 5,
section (a), the Board may issue a subpoena ployment seeks review, on the merits, of a United States Code (as amended by this
for the attendance and testimony of any final order or decision issued by the Board Act); and
person or the production of documentary or under section 7701, the agency responsible (2) for each of fiscal year 1987, 1988, and
other evidence from any person if the Board for taking the action appealed to the Board 1989, $5,000,000 to carry out subchapter II
finds that such subpoena is necessary for shall be the named respondent.". of chapter 12 of title 5, United States Code
the development of relevant evidence. (b) VENUE.-Section 7703(b)(1) of title 5, (as amended by this Act).
"(2) A subpoena under this subsection United States Code, is amended by striking (b) RESTRICTION RELATING To APPROPRIA-
may be Issued, and shall be enforced in the "Circuit." and inserting "Circuit or a United TIONS UNDER THE CIVIL SERVICE REFORM ACT
same manner, as applies in the case of sub- States court of appeals for the judicial cir- of 1978.-No funds may be appropriated to
poenas under section 1204. cuit within which the petitioner resides.". the Merit Systems Protection Board or the
"(d)(1) Subject to paragraph (2), the SEC. 5. REPRISALS. Office of Special Counsel pursuant to sec-
Board shall order such corrective action as Section 2302(b)(9) of title 5, United States tion 903 of the Civil Service Reform Act of
the Board considers appropriate if the Code, Is amended to read as follows: 1978 (5 U.S.C. 5509 note).
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CONGRESSIONAL RECORD - HOUSE H 7869
SEC. 10. TECHNICAL AND CONFORMING AMEND-
MENTS.
(a)(1) Section 2303(c) of title 5, United
States Code, is amended by striking "the
provisions of section 1206" and inserting
"applicable provisions of sections 1214 and
1221'.
(2) Sections 7502, 7512(E), 7521(b)(C), and
7542 of title 5, United States Code, are
amended by striking "1206" and inserting
"1215".
(3) Section 1190(a) of the Foreign Service
Act of 1980 (22 U.S.C. 4139(a)) is amended
by striking "1206" and inserting "1214 or
1221".
(b) Section 3393(g) of title 5, United
States Code, is amended by striking "1207"
and inserting "1215".
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall
take effect on October 1, 1986.
The SPEAKER pro tempore. Is a
second demanded?
Mr. HORTON. Mr. Speaker, I
demand a second.
The SPEAKER pro tempore. With-
out objection, a second will be consid-
ered as ordered.
There was no objection.
The gentlewoman from Colorado
[Mrs. SCHROEDER] will be recognized
for 20 minutes and the gentleman
from New York [Mr. HORTON] will be
recognized for 20 minutes.
The Chair recognizes the gentle-
woman from Colorado [Mrs. ScHROE-
DER].
Mrs. SCHROEDER. Mr. Speaker, I
yield myself such time as I may con-
sume.
(Mrs. SCHROEDER asked and was
given permission to revise and extend
her remarks, and include extraneous
material.)
Mrs. SCHROEDER. Mr. Speaker, I
am proud to bring the Whistleblower
Protection Act to the House today.
This bill makes good on the promise
which Congress made to the taxpayers
in 1978. We promised to protect civil
servants who come forward with dis-
closures of waste or wrongdoing. By
protecting whistleblowers, we would
encourage disclosure and, thereby, be
well on our way to winning the war
against waste in Government.
Our 1978 effort to protect whistle-
blowers, contained in the Civil Service
Reform Act, has failed. It has failed
for two reasons. The law was not as
strong as it should be. And, the Office
of Special Counsel, which we created
to investigate and prosecute whistle-
blower cases, has been a disaster. At
tion Board [MSPB] instead of having
to go through the special counsel.
The most important provisions of
H.R. 4033 are the following:
First. The bill makes clear that the
primary mission of the special counsel
is to protect from and make whole em-
ployees, applicants, and former em-
ployees who have been the victims of
prohibited personnel practices.
Second. H.R. 4033 establishes the
special counsel as an independent
agency. Right now, the special counsel
is an independent unit within MSPB.
This relationship has led to destruc-
tive friction.
Third. The bill provides employees
alleging that they have been victims of
prohibited personnel practices with a
direct right of action to the MSPB.
They still can go to the special coun-
sel, if they like.
Fourth. H.R. 4033 changes the
burden of proof for proving whistle-
blower reprisals form preponderance
to substantial evidence. This change is
made because proving the state of
mind of a management official is so
difficult. The burden of proof remains
a preponderance of the evidence for
other prohibited personnel practices.
Further, the bill deals with the dual
causation case by requiring the agency
to prove that the legitimate reason for
the action, and not the prohibited
reason, was the real reason for acting
against the employee.
Fifth. The bill allows both the indi-
vidual employees and the special coun-
sel to seek judicial review of MSPB de-
cisions on prohibited personnel prac-
tice cases.
Sixth. The bill better guards the
confidentiality of employees who
make protected disclosures through
the special counsel. These disclosures
can help agencies clean house by
themselves, without being subject to
unwanted publicity. There are variety
of new provisions to ensure that going
to the special counsel can not hurt the
employee.
Seventh. The bill places the Tennes-
see Valley Authority under prohibited
personnel practice provisions. I have
heard a great deal about TVA whistle-
blowers who have been subject to re-
prisals for disclosing problems with
the TVA's nuclear program. Why
should TVA employees have less pro-
first, it was energetic but ineffective. tection than other civil servants?
More recently, it has been professional Eighth. The bill places both the
but prejudiced against the people it MSPB and the special counsel under
was intended to protect. expiring authorizations for fixed sums.
The bill before us today deals with This will permit far stronger congres-
both problems. It deals with the wea- sional oversight than has been avail-
kenesses in the law by adding a able up until now.
number of new provisions which I will
described in a moment. And, the Whis- Ninth. The bill saves money by pro-
tleblower Protection Act circumvents viding that employees who win before
the problem of bad appointees by MSPB hearing officers are reinstated
giving employees the option of going pending appeal. Now, they are only re-
directly to the Merit Systems Protec- instated after agency appeals are com-
pleted. This means that agencies pay
back pay for the time the employee is
appealing the decision, plus paying an-
other employee to do the employee's
job.
Tenth. The bill restores old law
which permits employees to file ap-
peals with the court of appeals where
they live, or with the Federal circuit.
This will be more convenient both for
the employee and the agency.
This legislation is the result of years
of intensive oversight by the Subcom-
mittee on Civil Service. We have had
weeks of hearings, reviewed extensive
General Accounting Office reports,
and spoken with scores of employees
and their lawyers. It is supported by
outside organizations, including em-
ployee unions, the Government Ac-
countability Project, and Peter
Grace's Citizens Against Waste. I
think it is a very good bill which is de-
serving of your support.
Mr. Speaker, I include for the
RECORD a letter from Rudolph G.
Penner of the Congressional Budget
Office with a cost estimate for H.R.
4033.
The letter follows:
CONGRESSIONAL BUDGET OFFICE,
U.S. CONGRESS,
Washington, DC, September 22, 1986.
Hon. WILLIAM D. FORD,
U.S. House of Representatives, Cannon
House Office Building, Washington, DC.
DEAR MR. CHAIRMAN- The Congressional
Budget Office has prepared the attached
cost estimate for H.R. 4033, the Whistle-
blower Protection Act of 1986.
If you wish further details on this esti-
mate, we will be pleased to provide them.
With best wishes,
Sincerely,
CONGRESSIONAL BUDGET OFFICE-COST
ESTIMATE
SEPTEMBER 22, 1986.
1. Bill number: H.R. 4033.
2. Bill title: Whistleblower Protection Act
of 1986.
3. Bill status:
As ordered reported by the House Com-
mittee on Post Office and Civil Service, Sep-
tember 16, 1986.
4. Bill purpose:
The bill would establish the Office of Spe-
cial Counsel as an independent agency and
would clarify that its primary role is to rep-
resent federal employees who claim to be
victims of prohibited personnel practices.
The bill also would create an individual
right of action so employees can seek stays
and corrective action directly from the
Merit Systems Protection Board (MSPB)
without involvement of the Special Counsel.
Under current law, the Office of Special
Counsel is established as part of the MSPB.
The bill authorizes the appropriation of
$20 million to the MSPB for each of the
fiscal years 1987 through 1991 and $5 mil-
lion to the Office of Special Counsel for
each of the fiscal years 1987, 1988, 1989.
The bill also would remove the permanent,
indefinite authorization that is currently in
effect for these entities. In 1986, the MSPB
received an appropriation of $19.1 million,
and the Office of Special Counsel received
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H 7870 CONGRESSIONAL RECORD - HOUSE September 22, 1986
$4.4 million, both after sequestration under first as well as the subsequent Offices to recommit, to deal with this prob-
the Balance Budget and Emergency Deficit of Inspector General. I know their im- lem.
Control Act of 1985. The President's budget portance in improving Government ef- Mr. HORTON. Mr. Speaker, I yield
for 1987 includes a request of $20.3 million ficiency, and I know the importance for the MSPB for 1987 and $4.6 million for p back the balance of my time.
the Office of Special Counsel. they place on input from Federal em- Mrs. SCHROEDER, Mr. Speaker, I
5. Estimated cost to the Federal Govern- ployees in reporting instances where yield myself such time as I may con-
ment: investigations might be warranted. sume.
Because the bill would replace the perma- Some argue that H.R. 4033 gives Fed-
nent, indefinite authorization currently in eral employees too much protection, did not Speaker, thank I the would genbe remiss if
tleman man fro I
effect for the MSPB and the Office of Spe- that the process established in this bill Nd Ohm
cial Counsel with a definite authorization might be abused by employees seeking New York [Mr. moving for his pe-
phe-
that would expire in 1991 and 1989, respec- to avoid reprisals that might otherwise nomenal help in moving this legisla-
tively, the bill would result in no net cost to occur. I don't think this is true. The tion and for all the expertise he has
the federal government. Relative to the brought to the committee from his ex
CBO baseline estimates for the two activi- fact is this: Federal employees we
ties, the authorizations provided by H.R. heard in the hearings held by our sub- perience with the inspector general.
4033 would be about $1 million higher in committee-employees who reported Mrs. BYRON. Mr. Speaker, I rise today in
1987 and 1988, about the same in 1989 and illegalities and suffered reprisals- full support of the Whistleblower Protection
1990, and about $1 million less in 1991. rarely received support through the Act of 1986. It is certainly satisfying to see
6. Estimated cost to State and local gov- current process. That is a tragedy. The this legislation being taken up by the House at
ernments: None. hardest thing an employee can do is to a time when morale among Federal workers is
7. Estimate comparsion: None. report an illegality within his or her quite low. This bill reafirms our support for
8. Previous CBO estimate: None.
9. Estimate prepared by: Jim Hearn (226- department, agency or program. those employees who blow the whistle on ille-
2860). Rather than feel shame for such re- gality of waste in the Federal Government.
10. Estimate approved by: porting, as most now do, we ought to I am particularly pleased to see language in-
JAMES L. BLUM, afford them protections that preserve cluded in this measure which achieves the
Assistant Director their dignity and afford them every same end of legislation I introduced at the
for Budget Analysis. opportunity to prove their case. Such outset of the 99th Congress. The language
Mr. HORTON. Mr. Speaker, I yield a system simply does not work today. provides that an employee who is the prevail-
myself such time as I may consume. It has been a pleasure working with ing party in an initial decision by the Board
Mr. Speaker, I rise in support of Chair Schroeder on this issue. She has shall be granted the relief provided in the de-
H.R. 4033, the Whistleblower Protec- done an outstanding job in developing cision pending the outcome of any petition for
tion Act of 1986. this bill, in seeking input from a review.
Simply stated, H.R. 4033 improves number of sources, and I join her in The purpose of this language is to correct
our system of protecting Federal em- support of this bill and would urge its what I believe to be an unfair Board policy.
ployees who report wrongdoing within acceptance. Let's give some support to Currently, if a Federal employee is either re-
their agencies and departments, and our Federal employees for a change, moved or suspended by his agency, he has
who, as a result of their actions, suffer and put in place a better system to the right to appeal to the Merit Systems Pro-
reprisals. The protections set forth in protect those who report instances of tection Board. However, even if the employee
this bill are important for both Feder- waste, fraud, and abuse. Mr. Speaker, I is favored in the initial decision, he cannot be
al employees and our Government. urge passage of this bill. Lei.,..?.e,, i..k., a,._:.,__ ._ ---- .-_
01210 a review of the initial decision. This policy
cannot expect the Federal work force simply leaves the employee without his job
to be a major force in stopping or re- Mr. Speaker, I yield one minute to until the Board renders a final decision on the
porting instances of waste, fraud, and the gentleman from Virginia [Mr. agency's petition.
abuse. WOLF].
The review of these petitions by the Board
H.R. 4033 reaffirms Congress' sup- (By unanimous consent, Mr. WOLF
port for Federal employees who dis- was allowed to speak out of order.) has frequently dragged on for months, some-
close illegal or wasteful practices and VOTE TO AMEND THE TAX REFORM ACT TO times years. I believe that this prolonged delay
provides added protections from re- RESTORE THE 3-YEAR RECOVERY RULE causes undue hardships on the employee who
prisal. Specifically, the bill reestab- Mr. WOLF. Mr. Speaker, I wish to has already been favored in the Board's initial
lishes the Office of Special Counsel as address the House on the 3-year annu- decision. This is most certainly an obvious
an independent agency with an expir- ity basis recovery rule, which is in the case of justice delayed, justice denied.
ing authorization; it clarifies that the tax bill, and I want to ask my col- I want to take this opportunity to thank Civil
principal mission of the Office is to leagues to vote for the motion to re- Service Subcommittee chair, Congresswoman
represent employees who claim to be commit, and let me tell you why. SCHROEDER, and all the members of the
victims of prohibited personnel prac- I received a letter today from a House Post Office and Civil Service Commit-
tices. There has been some confusion woman who works for the Federal tee for recognizing the great need for this leg-
as to the exact mission of the Office in Government, who writes as follows: islation. I believe that, through this measure,
recent years. On the average, women are in the lowest we are taking important steps toward ensuring
H.R. 4033 creates an individual right paying jobs. As a result, they will be heavily that our Federal employees are treated with
of action so that employees can seek impacted by the effect of reduced annuities. the fairness and appreciation they deserve.
action directl from the Merit System Many are single mothers who are the sole Therefore, Mr. Speaker, I urge all my col-
y support of their children. The proposed passage
Protection Board. Further, it allows changes in the retirement recovery provi- leagues 0 3. Thank me in supporting the either an individual or the special Sion may contribute to the feminization of of H.R. 4033. Tyou.
counsel the option of judicial review poverty. Many of these women are not even Mrs. SCHROEDER. Mr. Speaker, I
by the Federal circuit or the court of aware of the effect these changes will have yield back the balance of my time.
appeals where the individual resides. on their future security. The SPEAKER pro tempore. The
The legislation reduces the evidence Not only am I a single woman, but I have question is on the motion offered by
test in reprisals to "substantial," a daughter and two grandchildren now the gentlewoman from Colorado [Mrs.
living with
me. My rather than "a preponderance of," and went through h a a divorce. daughter
. She r r also eceives little if recently SCHROEDER] that the House suspend
went
it expands the list of prohibited per- any support and must work full time to sup- the rules and pass the bill, H.R. 4033,
sonnel practices to incude reprisals for port her family. Without my help, she as amended.
cooperating with inspectors general or would not be able to provide for her family. The question was taken; and (two-
the special counsel, testifying at a pro- I appeal to you on your compassion.. thirds having voted in favor thereof)
ceeding, or failing to obey an order to I would appeal to the Members of the rules were suspended and the bill,
disobey a law. this body that, when given an opportu- as amended, was passed.
Mr. Speaker, I was a principal nity on the tax bill this Thursday, A motion to reconsider was laid on
author of the legislation creating the that they vote for the Archer motion the table.
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