WHISTLEBLOWER PROTECTION ACT OF 1989, S. 20

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92M00732R001000040024-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 23, 2016
• Document Release Date: April 16, 2014
• Sequence Number: 24
• Publication Date: March 22, 1989
• Content Type: MEMO

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L'
MEMORANDUM FOR:
FROM:
SUBJECT:
22 March 1989
OCA 0996-89
C/ICA/OGC
ALD/OGC
Legislative Division
ice of Congressional Affairs
Whistleblower Protection Act of 1989, S.20
1. Attached for your information is a copy of the
above-captioned bill as passed by the Senate on 16 March 1989,
by a vote of 97-0. The House passed the same bill by voice
vote on 21 March. No amendments.weie allowed.
2. We expect the President to sign the bill, but the
Congress is positioned to override a veto. We are in the
process of weighing options we may pursue before the bill
becomes law. I shall keep you apprised.
Attachment
Distribution:
Orig - Addressee
1 - OCA/Senate
1 - G Subj File (Misc. Personnel)
1117=0CA Regf-sitr?r-f\
1- Signer
STAT
STAT
STAT
STAT
STAT
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March 16, 1989 CONGRESSIONAL RECORD ? SENATE S 2805
Counsel, combined with the heavy
burden of proof required of a Federal
employee, discourages those who seek
to improve the management of our
Federal agencies.
Of course, such discouragement is
reinforced when other Federal work-
ers hear horror stories of retaliatory
action against their colleagues. I heard
of one FDA scientist who challenged
FDA's approval of known carcinogens
for use in animal feed and claimed
such carcinogens posed a threat to the
human food chain. Although a con-
gressional committee confirmed his
charges, the scientist was, in essence,
fired from his job in charge of quality
control for new animal drug applica-
tions. I would hope that we live in a
country where the Government does
not chastize its employees for calling
attention to public health hazards.
S. 20 helps us avoid problems such as
the one I just described. It reduces the
burden-of-proof standard, thereby
making it easier for a whistleblower to
prove retaliation by an agency. It also
allows whistleblowers to appeal direct-
ly to the merit board within 60 days of
the OSC terminating the investigation
or within 120 days of seeking correc-
tive action from the OSC. In addition,
the measure restricts the OSC from
acting in a manner that is contrary to
the complainant's interest such as
leaking evidence or information about
the complainant to the employer.
Mr. ? President, 'such legislation is
long overdue. Federal agencies have a
duty to obey the law and to follow
sound management practices. With
the adoption of S. 20, agency retalia-
tion will become more difficult and
Federal workers will have a greater in-
centive to speak out. Therefore, this
legislation will lead to more effective
and efficient Government.
The PRESIDENT pro tempore. The
question is on the engrossment and
third reading of the bill.
The bill was ordered to be engrossed
for a third reading, and was read the
third time.
The PRESIDENT pro tempore. The
bill having been read the third time,
the question is, Shall the bill Pass?
On this question, the yeas and nays
have been ordered, and the clerk will
call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that
the Senator form North Carolina (Mr.
SANFORD] is absent on official business.
Mr. SIMPSON. I announce that the
Senator from Minnesota (Mr. Roam-
wITzl and the Senator from Utah (Mr.
Getaig) are necessarily absent.
The PRESIDING OFFICER. (Mr.
Roan). Are there any other Senators
in the Chain
Adams
Armstrong
Baucus
Rollcall Vote No. 24 Leg.]
YEAS-97
Bentsen
Bitten
BIngarnan
Bond
Boren
Bradley
Breams Earths Mitchell
Bryan Hatch Moynihan
Bumpers Hatfield kturkovniki
Burdick Heflin Nickles
Burns Heinz Nunn
Byrd Helms Packwood
Chafee Hollings Pell
Coats Humphrey Pressler
Cochran Inouye Pryor
Cohen Jef ords Reid
Conrad Johnston Riegle
Cranston Kassebatun Robb
D'Amato Hasten Rockefeller
Danforth Kennedy Roth
Dasclile Kerrey Rudxnan
DeConcini Kerry Sarbanes
Dixon Kohl Sasser
Dodd La utenberg Shelby
Dole Leahy Simon
Domenici Levin Simpson
Durenberger Lieberman Specter
Exon Lott Stevens
Ford Lugar Symms
Fowler Mack Thurmond
Glenn Matsunaga Wallop
Gore McCain Warner
Gorton McClure Wilson
Graham McConnell Wirth
Gramm Metzenbaum
Cirsssley Mikulaki
NOT VOTING-3
Boschwitz Garn Sanford
So the bill (S. 20), as amended.
passed, as follows: ?
8.20
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled.
SECTION I. SHORT TITLE.
_TbisrAcilnay0eciteCu..the ?WkU
AltlialtaletikegRAtitAing&I
SEC. a FINDINGS AND PURPOSE.
(a) Frentecs.?The Congress finds that?
(1) Federal employees who make disclo-
sures described in section 2302(bX8) 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
Goveniment 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 protect whistleblowers
(those individuals who make disclosures de-
scribed in such section 2302(bX8)) from re-
prisal.
(b) PURPOSE.?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; and
(2) establishing? _
(A) that the primary role of the Office of
Sepcial Counsel is to protect employees, es-
pecially whistleblowers, from prohibited
personnel practices;
(B) that the Office of Special Counsel
shall act in the interests of employees who
seek assistance from the Office of Special
Counsel; and
(C) 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
who are the subject of prohibited personnel
Ices remains the paramount consider-
ation.
SEC. E. MERIT SYSTEMS PROTECTION BOARD:
OFFICE OF SPECIAL COUNSEL: INDI-
VIDUAL RIGHT OF ACTION.
(a) MERIT SYSTEMS Femme-non BOARD.?
Chapter 12 of title 5, United States Code is
amended?
was
(1) in section 1201 in the second sentence
by striking out "Chairman and";
(2) in the heading for section 1202 by
striking out the comma and inserting in lieu
thereof a semicolon;
(3) in section 1202(b)?
(A) in the first sentence by striking out
"his" and inserting in lieu thereof "the
member's"; and
(B) in the second sentence by striking out
"of this title";
(4) in section 1203(a) in the first sentence
by striking out the comma after "time";
(5) in section 1203(c) by striking out "the
Chairman and Vice Chairman" and insert-
ing in lieu thereof "the Chairman and the
Vice Chairman";
(6) by redesignating section 1204 as sec-
tion 1211(b) and inserting such subsection
after section 1211(a) (as added in paragraph
(11) of this subsection);
(7) by redesignating section 1205 as sec-
tion 1204, and amending such redesignated
section?
(A) by striking out "and Special Counsel",
"the Special Counsel," and "of this section"
each place such terms appear;
(B) by striking out "subpena" and "subpe-
need" each place such terms appear and in-
serting in lieu thereof "subpoena" end "sub-
poenaed", respectively;
(C) in subsection (aX4) by striking out
"(e)" and inserting in lieu thereof "Ur;
(D) by amending subsection (b)(2) to read
as follows:
"(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 of any
such individual, and the production of docu-
mentary or other evidence 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 b,
any such individual.";
(E) in subsection (c) in the first sentence?
(I) by striking out "(bX2) of this section,"
and inserting In lieu thereof "(bX2XA) or
section 1214(b), upon application by the
Board."; and
(ii) by striking out "judicial"'
(F) by redesignating subsections (d)
through (k) as subsections (e) through (1),
respectively, and inserting after subsection
(c) the following new subsection:
"(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."''
(0) in subsection (e) (as redesignated by
subparagraph (F) of this paragraph)?
(i) in paragraph (1)?
(I) by redesignating such paragraph as
subparagraph (A) of paragraph (1); and
(II) by inserting at the end thereof the
following new subparagraph:
(BM) The Merit Systems Protection
Board may, during an investigation by the
Office of Special Counsel or during the
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S 2806
CONGRESSIONAL RECORD ? SENATE March 16, 1989
pendency of any, proceeding before the
Board, issue any order which may be neces-
sary to protect a witness or other individual
from harassment, except that an agency
(other than the Office of Special Counsel)
may not request any such order with regard
to an investigation by the Office of Special
Counsel from the Board during such investi-
gation.
"(11) An order issued under this subpara-
graph may be enforced in the same manner
as provided for under paragraph (2) with re-
spect to any order under subseeiton (aX2).";
(ii) in paragraph (2)?
(I) by redesignating such paragraph as
subparagraph (A) of paragraph (2) and
striking out "of this section" in the first
sentence therein; and
(II) by inserting at the end thereof the
following new subparagraph (B):
"(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)."; and
(in) in paragraph (3) by inserting "of Per-
sonnel Management" after ?Office"'
(H) in subsection (1) (as redesignated by
subparagraph (F) of this paragraph)?
(1)4n paragraph (1) in the first sentence
by inserting "of the Office of Personnel
Management" after "Director", and by
striking out "of this title";
(ii.) in paragraph (2)?
(I) in the first sentence by inserting a
comma after "subsection"'
(II) in paragraph (A) by striking out "of
this title"; and
(III) in subparagraph (B) by striking out
"of this title"; and
(iii) in paragraph (3)?
(I) in subparagraph (A) by striking out
"(An'
(II) by striking out subparagraph (B); and
(III) by redesignating subparagraph (C)
and clauses (0 and (ii) therein as paragraph
(4) and subparagraphs (A) and (B), respec-
tively; and
(I) in subsection (I) (as redesignated by
subparagraph (F) of this paragraph) in the
second sentence by striking out "of this
title" after"chapter 33"?
(8) by striking out sections 1206 through
1208;
(9) by redesignating section 1290(a) as sec-
tion 1205, and inserting before such section
the following section heading:
"11206. Transmittal of information OD Congress";
(10) by redesirmating section 1209(b) as
section 1208, and inserting before such sec-
tion- the following section heading:
"life& Mutual report";
(11). by inserting after section 1208 (as re-
designated in paragraph (10) of this subsec-
tion) the following:
"strscnarrse rx?orrxes or SPICCIAL COUNSEL
"11211. 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.";
(12) by amending section 1211(b) (as re-
designated and inserted by paragraph (8) of
this subsection)?
(A) in the first sentence by striking out
"of the Merit Systems Protection Board"
and "from attorneys";
(B) by striking the second sentence and in-
serting in lieu thereof ?The Special Counsel
shall be an attorney who, by demonstrated
ability, background, training, or experience,
is especially qualified to carry out the func-
tions of the position. A Special Counsel ap-
pointed to fill a vacancy occurring before
the end of a term of office of the Special
Counsel's predecessor serves for the remain-
der of the term."; and
(C) by adding at the end thereof "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"; and
(13) inserting after section 1211 the fol-
lowing:
"0 1212. Powers and functions of the Office of
Special Counsel
"(a) The Office of Special Counsel shall?
"(1) in accordance with section 1214(a)
and other applicable provisions of this sub-
chapter, protect employees, former employ-
ees, and applicants for employment from
prohibited 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 gross mismanagement, a gross waste of
funds, an abuse of authority, or a substan-
tial 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, where aPProPriale,
bring actions concerning allegations of vole-
lions of other laws within the jurisdiction of
the Office of Special Counsel (as referred to
in section 1218).
"(bX1) The Special' Counsel and any em-
ployee of the Office of Special Counsel des-
ignated by the Special Counsel may admin-
ister oaths, examine witnesses, take deposi-
tions, and receive evidence.
"(2) The Special Counsel may?
"(A) issue subpoenas; and
"(B) order the-rating of depositions and
order responses to written interrogatories;
in the same manner as provided under sec-
tion 1204.
"(3XA) In the case of contumacy or fail-
ure to obey a subpoena issued under para-
graph (2)(A), the Special Counsel may apply
to the Merit Systems Protection Board to
enforce the subpoena in court pursuant to
section 1204(c).
"(B) A subpoena under paragraph (2XA)
may in the case of any individual outside
the territorial jurisdiction of any court of
the United States, be served in the manner
referred to in subsection (d) of section 1204,
and the United States District Court for the
District of Columbia may, with respect to
any such individual, compel compliance in
accordance with such 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.
"(CX 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 not inter-
vene in an action brought by an individual
under section 1221, or in an appeal brought
by an individual under section 7701, without
the consent of such individuaL
"(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
such regulations as may be necessary to per-
form the functions of the Special Counsel.
Such regulations shall be published in the
Federal Register.
"(g) The Special Counsel may 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).
"(hX1) The Special Counsel may not re
spond to any inquiry or provide information
concerning any person making an allegation
under section 1214(a), except in accordance
with the provisions of section 552a of title 5,
United States Code, or as required by any
other applicable Federal law.
"(2) Notwithstanding the exception under
'paragraph (1), the Special Counsel may not
'respond to any inquiry concerning a matter
described in subparagraph (A) or (B) of sec-
tion 2302(bX2) in connection with a person
described in" partigraPh. ( 1)?
"(A) unless the consent of the individual
as to whom the information pertains is ob-
tained in advance; or
"(B) except upon request of an agency
which requires such information in order, to
make a determination concerning, an indi-
vidual's having access to the information
unauthorized disclosure of which could be
expected to cause exceptionally grave
damage to the national security-
"11 1213. Provisions rebating to dindosures -of vie.
lads= of law, gross mismanagement, and cer-
tain other matters
"(a) This section applies with- reeve&
"(1) any diselosuze of information' by an
employee, former emeloyee, or applicant fee
employment which the employee, former
employee, or applicant reasonably believes
evidences?
"(A) a violation of any law, rule, or regula-
tion; or
"(B) gross mismanagement, a gross waste
of funds, an abuse of authority, or a aub-
stantis.1 and specific danger to public health
or safety;
If such disclosure is not specifically prohib-
ited by law and if such information la-not
specifically required by Executive order to
be kept secret in the interest of national de-
fense or the conduct of foreign &Ming 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 iggetlitlar-another
employee designated by the head orthe
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
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March 16, 1989 CONGRESSIONAL RECORD ? SENATE
"(B) VOW mismanagement, a gross waste
of funds, an abuse of authority, or a sub-
stantial and specific danger to public health
or safety.
"(b) Whenever the Special Counsel re-
ceives information of a type described in
subsection (a) of this section. the Special
Counsel shall review such information and,
within 15 days after receiving the informa-
tion, determine whether there is a substan-
tial likelihood that the information dis-
closes a violation of any law, rule, or regula-
tion, or gross mismanagement, gross waste
of funds, abuse of authority, 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) of this section, the
Special Counsel shall promptly transmit the
Information with respect to which the de-
termination 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 Council.
"(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 mit!-
"
"(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 813?
"(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.
"(eX1) Any such report shall be submitted
to the Special Counsel, and the Special
Counsel shall transmit a copy to the com-
plainant, except as provided under subsec-
tion (1) of this section. The complainant
may submit comments to the Special Coun-
sel on the agency report within 15 days of
having received a copy of the report.
"(2) Upon receipt of any report of the
head of any agency required under subsec-
tion (c) of this section, the Special Counsel
shall review the report and determine
whether?
"(A) the findings of the head of the
agency appear reasonable; and
"(B) the report of the agency under sub-
section (cX1) of this section contains the in-
formation required under subsection (d) of
this section.
"(3) The Special Counsel shall transmit
any agency report received pursuant to sub-
section (c) of this section, any comments
provided by the complainant pursuant to
subsection (e)(1), and any appropriate com-
ments or recommendations by the Special
Counsel to the President, the congressional
committees with jurisdiction over the
agency which the disclosure involves, and
the Comptroller General.
"(4) Whenever the Special Counsel does
not receive the report of the agency within
the time prescribed in susbsection (c)(2) of
this section, the Special Counsel shall trans-
mit a copy of the information which was
transmitted to the agency head to the Presi-
dent, the congressional committees with ju-
risdiction over the agency which the disclo-
sure involves, and the Comptroller General
together with a statement noting the failure
of the head of the agency to file the re-
quired report.
"(f) In any case in which evidence of a
criminal violation obtained by an agency in
an investigation under subsection (c) of this
section is referred to the Attorney Gener-
al?
"(1) the report shall not be transmitted to
the complainant; and
"(2) the agency shall 'notify UR-Office of
Personnel Management and the Office of
Management and Budget of the referral.
"(g)(1) If the Special Counsel receives in-
formation of a type described in subsection
(a) from an individual other than an individ-
ual described in subparagraph (A) or (B) of
subsection (c)(2), the Special Counsel may
transmit the information to the head of the
agency which the information concerns.
The head of Such agency shall, within a rea-
sonable time after the Information is trans-
mitted, inform the Stpecial Counsel in writ-
ing of what action has been or is _being
taken and when such action shall be com-
pleted. The Special Counsel shall inform
the individual of the report of the agency
head. If the Special Counsel does not trans-
mit the information to the head of the
agency, the Special Counsel shall return
any documents and other matter provided
by the individual who made the disclosure.
"(2) If the Special Counsel receives infor-
mation of a type described in subsection (a)
from an individual described in subpara-
graph (A) or (B) of subsection (cX2), but
does not make a? positive determination
under subsection (b), the Special Counsel
may transmit the information to the head
of the agency which the information con-
cerns, except that the information may not
be transmitted to the head of the agency
without the consent of the individual. The
head of such agency shall, within a reasona-
ble time after the Information is transmit-
ted, inform the Special Counsel in writing
of what action has been or Is being taken
and when such action will be completed. the
Special Counsel shall inform the individual
of the report of the agency head.
"(3) If the Special Counsel does not trans-
mit the information to the head of the
agency under paragraph (2), the Special
Counsel shall?
"(A) return any documents and other
matter provided by the individual who made
the disclosure; and ?
"(B) inform the Individual of?
"(i) the reasons why the disclosure may
not be further acted on under this chapter;
and
"(ii) other offices available for receiving
disclosures, should the individual wish to
pursue the matter further.
"(h) the identity of any individual who
makes a disclosure described in subsection
(a) may not be disclosed by the Special
Counsel without such individual's consent
unless the Special Counsel determines that
S 2807
the disclosure of the individual's identity is
necessary because of an imminent danger to
public health or safety or imminent viola-
tion of any criminal law.
"(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.
lik"With respect to any disclosure of in-
fo-n-Fition 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 National Security
Advisor, the Permanent Select Committee
on Intelligence of the House of Representa-
tives, and the Select Committee on Intelli-
gence of the Senate.
"I 1214. Investigation of prohibited personnel
practices; corrective action
"(a)(1)(A) The Special Counsel shall re-
ceive any allegation of a prohibited person-
nel practice and shall investigate the allega-
tion to the extent necessary to determine
whether there are reasonable grounds to be-
lieve that a prohibited personnel practice
has occurred, exists, or is to be taken.
"(B) Within 15 days after the date of re-
ceiving an allegation of a prohibited person-
nel practice under paragraph (1). the Sloe-
cial Counsel shall provide written notice to
the person who made the allegation that?
"(1)' the allegation has been received by
the Special Counsel; and
"(ii) shall include the name of a person at
the Office of Special Counsel who shall
serve as a contact with the person maithur
the allegation.
"(C) Unless an investigation is terminated
under paragraph (2), the Special counsel
shall?
"(1) within 90 days after notice is provided
under subparagraph (B), notify the person,
who made the allegation of the status of the
Investigation and any action taken by the
Office of the Special Counsel since the
filing of the allegation;
"(ii) notify such person of the status of
the investigation and any action taken by
the Office of the Special Counsel since the
last notice, at least every 60 ? days after
notice is given under clause (i); and
"UM notify such person of the status of
the investigation and any action taken by
the Special Counsel at such time as deter-
mined appropriate by the Special Counsel.
"(2XA) If the Special Counsel terminates.
any investigation, under paragraph (I), the.
Special Counsel shall prepare and transmit
to any person on whose allegation the inves-
tigation was initiated a written statement
notifying the person of?
"(i) the termination of the investigation;
"(ii) a summary of relevant facts ascer-
tained by the Special Counsel. including the
facts that support, and the facts that do not
support, the allegations of such person; and
"(111) the reasons for terminating the in-
vestigation.
"(B) A written statement under subpara-
graph (A) may not be admissible as evidence
In any judicial or administrative proceeding,
without the consent of the person who re-
ceived such statement under subparagraph
(A).
"(3) Except in a case in which an employ-
ee, former employee, or applicant for em-
ployment has the right to appeal directly to
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S 2808 CONGRESSIONAL RECORD ? SENATE March 16, 1989
the Merit Systems Protection Board under
any law, rule, or regulation, any such em-
ployee, former employee, or applicant shall
seek corrective action from the Special
Counsel before seeking corrective action
from the Board. An employee, former em-
ployee, or applicant for employment may
seek corrective action from the Board under
section 1221, if such employee, former em-
ployee, or applicant seeks corrective action
for a prohibited personnel practice de-
scribed in section 2302(b)(8) from the Spe-
cial Counsel and?
"(A)(1) the Special Counsel notifies such
employee, former employee, or applicant
that an investigation concerning such em-
ployee, former employee, or applicant has
been terminated; and
"(ii) no more than 60 days have elapsed
since notification was provided to such em-
ployee, former employee, or applicant for
employment that such investigation was ter-
minated; or
"(B) 120 days after seeking corrective
action from the Special Counsel, such em-
ployee, former employee, or applicant has
not been notified by the Special Counsel
that the Special Counsel shall seek correc-
tive action on behalf of such employee,
former employee, or applicant.
"(4) If an employee, former empoyee, or
applicant seeks a corrective action from the
Baord under section 1221, pursuant to the
provisions of paragraph (3)(B), the Special
Counsel may continue to seek corrective
action personal to such employee, former
employee, or applicant only with the con-
sent of such employeeaformer employee, or
applicant.
"(5) 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 occured, exists, or is to
be taken.
"(b)(1)(AX1) 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.
"(11) Any member of the Board requested
by the Special Counsel to orders 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.
"(111) 'Unless denied under clause (11), any
stay under this subparagraph shall be
granted withing 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.
"(C) The Board shall allow any agency
which is the subject of a stay to comment
on the Board on any extension of stay pro-
posed under subparagraph (B).
"(D) A stay may be terminated by the
Board at any time, except that a stay may
not be termined by the Board?
"(i) on its own motion or on the motion of
an agency, unless notice and opportunity
for oral or written comments are first pro-
vided to the Special Counsel and the indi-
vidual on whose behalf the stay was or-
dered; or
"(ii) on motion of the Special Counsel,
unless notice and opportunity for oral or
written comments are first provided to the
individual on whose behalf the stay was or-
dered.
"(2)(A) If, in connection with any investi-
gation, the Special Counsel determines that
their are reasonable grounds to believe that
a prohibited personel practice has occurred,
exists, or is to be taken which requires cor-
rective action, the Special Counsel shall
report the determination together with any
findings or recommendations to the Board,
the agency involved and to the Office of
Personnel Management, and may report
such determinations, findings and recom-
mendations to the President. The Special
Counsel may include in the report recom-
mendations for corrective action to be
taken.
"(B) If, after a reasonable period of time,
the agency does not act to correct the pro-
hibited personnel practice, the Special
Counsel may petition the Board for correc-
tive action.
"(C) 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) Whenever the Special Counsel peti-
tions the Board for corrective action. the
Board shall provide an opportunity for?
"(A) oral or written comments by the Spe-
cial Counsel the agency involved, and the
Office of Personnel Management; and
"(B) written comments by an individual
who alleges to be the subject of the prohib-
ited personnel practice.
"(4)(A) The Board shall order such correc-
tive action as the Board considers appropri-
ate, if the Board determines that the Spea
dal Counsel has demonstrated that a pro-
hibited personnel practice, other than one
described in section 2302(b)(8), has oc-
curred, exists, or is to be taken.
"(B)(1) Subject to the provisions of clause
(11), in any case involving an alleged prohib-
ited personnel practice as described under
section 2302(b)(8), the Board shall order
such corrective action as the Board consid-
ers appropriate if the Special Counsel has
demonstrated that a disclosure described
under section 2302(b)(8) was a contributing
factor in the personnel action which was
taken or is to be taken against the individ-
ual.
"(ii) Corrective action under clause (1)
may not be ordered if the agency demon-
strates by clear and convincing evidence
that it would have taken the same person-
nel action in the absence of such disclosure.
"(c)(1) Judicial review of any final order
or decision of the Board under this section
may be obtained by any employee, former
employee, or applicant for employment ad-
versely affected by such order or decision.
"(2) A petition for a 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
unless?
"(A) the alleged violation has been report-
ed to the Attorney General; and
"(B) the Attorney General is pursuing an
investigation, in which case the Special
Counsel, after consultation with the Attor-
ney General, has discretion as to whether to
proceed.
"(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.
'11215. 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,
-rine, 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
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March 16, 1989
CONGRESSIONAL RECORD ? SENATE S 2809
within such time, as provided for under sec-
tion 7703(b).
"(6) 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, policymaking, 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) In the case of members of the uni-
formed services and individuals employed by
any Person under contract with an agency
to provide goods or services, the Special
Counsel may transmit recommendations for
disciplinary or other appropriate action (in-
? cluding the .evidence on which such recom-
mendations are based) to the head of the
agency concerned.
"(2) In any case in which the Sendai
? 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.
'1 1216. Other matters within the jurisdiction of
the Office of Special Counsel
? "(a) In additional 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 HI 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 dectsionmaking; 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 an al-
legation concerning any matter under para-
graph (3), (4), or (5) of subsection (a), the
Special Counsel may investigate and seek
corrective action under section 1214 in the
Dnrf
same way as if a prohibited personnel prac-
tice were involved.
"g 1217. Transmittal of infonnation to Congrem
"The Special Counsel or any employee of
the Special Counsel designated by the Spe-
cial Counsel, shall transmit to the Congress
on the request of any committee or subcom-
mittee thereof, by report, testimony, or oth-
erwise, information and the Special Coun-
sel's views on functions, responsibilities, or
other matters relating to the Office. Such
information shall be transmitted concur-
rently to the President and any other ap-
propriate agency in the executive branch.
el218. Annual report
"The Special Counsel shall submit an
annual report to the Congress on the activi-
ties of the Special Counsel, including the
number, types, and disposition of allega-
tions of prohibited personnel practices filed
with it, investigations conducted by it, and
actions initiated by it before the Merit Sys-
tems Protection Board, as well as a descrip-
tion of the recommendations and reports
made by it to other agencies pursuant to
this subchapter, and the actions taken by
the agencies as a result of the reports or
recommendations. The report required by
this section shall include whatever recom-
mendations for legislation or other action
by Congress the Special Counsel may con-
sider appropriate.
?1219. Public information
"(a) The Special Counsel shall maintain
and make available to the public?
"(1) a list of noncriminal matters referred
to heads of agencies under subsection (c) of
section 1213, together with reports from
heads of agencies under subsection (eX1)(B)
of such section relating to such matters;
"(2) a list of matters referred to heads of
agencies under section 1215(c)(2);
"(3) a list of matters referred to heads of
agencies under subsection (e) of section
1214, together with certifications from
heads of agencies under such subsection;
and
"(4) reports from heads of agencies under
section 1213(g)(10).
"(b) The Special Counsel shall take steps
to ensure that any list or report made avail-
able to the public under this section does
not contain any information the disclosure
of which Is prohibited by law or by Execu-
tive order requiring that information be
kept secret in the interest of national
fense or the conduct of foreign affairs.
"suacaterrsa in?INDIVIDUAL RIGHT or
ACTION nr CERTAIN REPRLSAL CASES
'112.21. Individual right of action in certain re-
prisal cases
"(a) Subject to the provisions of subsec-
tion (b) of this section and subsection
1214(a)(3), an employee, former employee,
or applicant for employment may, with re-
spect to any personnel action taken, or pro-
posed to be taken, against such employee,
former employee, or applicant for employ-
ment, as a result of a prohibited personnel
Practice described in section 2302(bX8), seek
corrective action from the Merit Systems
Protection Board.
"(b) This section may not be construed to
Prohibit any employee, former employee, or
applicant for employment from seeking cor-
rective action from the Merit Systems Pro-
tection Board before seeking corrective
action from the Special Counsel, if such em-
ployee, former employee, or applicant for
employment has the right to appeal directly
to the Board under any law, rule, or regula-
tion.
"(c)(1) Any employee, former employee, or
applicant for employment seeking corrective
action under subsection (a) may request
that the Board order a stay of the personnel
action involved.
"(2) Any stay requested under paragraph
(1) shall be granted within 10 calendar days
(excluding Saturdays, Sundays, and legal
holidays) after the date the request Is made,
if the Board determines that such a "stay
would be appropriate.
"(3)(A) The Board shall allow any agency
which would be subject to a stay under this
subsection to comment to the Board on such
stay request.
"(B) Except as. provided in subparagraph
(C), a stay granted under this subsection
shall remain in effect for such period as the
Board determines to be appropriate.
"(C) The Board may modify or dissolve a
stay under this subsection at any time, if
the Board determines that such a modifica-
tion or dissolution is appropriate.
"(d)(1) At the request of an employee,
former employee, or applicant for employ-
ment seeking corrective action under sub- -
section (a), the Board may issue a subpoena
for the attendance and testimony of any
person or the production of documentary or
other evidence from any person if the Board
finds that such subpoena is necessary for
the development of relevant evidence.
"(2) A subpoena under this subsection
may be issued, and shall be enforced, in the
same manner as applies in the case of sub-
poenas under section 1204.
"(e)(1) Subject to the provisions of para-
graph (2), in any case involving an alleged
prohibited personnel practice as described
under section 2302(b)(8), the Board shall
order 'such corrective action as the Board
aohaiders appropriate if the employee,
former employee, or applicant for employ-
ment has demonstrated that a disclosure de-
scribed under section 2302(bX8) was -a con-
tributing factor in the personnel action
which was taken or is to be taken against
such employee, former employee, or appli-
cant.
"(2) Corrective action under paragraph (1)
may not be ordered if the agency demon-
strates by clear and convincing evidence
that it would have taken the same person-
nel action in the absence of such disclosure.
"(f)(1) A final order or decision shall be
rendered by the Board as soon as Practica-
ble after the commencement of any pro-
ceeding under this section.
? "(2) A decision to terminate an investiga-
tion under subchapter II may not be consid-
ered in any action or other proceeding
under this section. ? _'.-
"(gX1) If an employee, former employee,
or applicant for employment Is the prevail-
ing party before the Merit Systems Protec-
tion Board, and the decision is based on a
finding of a prohibited personnel practice,
the agency involved shall be liable to the
employee, former employee, or applicant for
reasonable attorney's fees any other reason-
able costs incurred.
"(2) If an employee, former employee, or
applicant for employment is the prevailing
party in an appeal from the Merit Systems
Protection Board, the agency involved shall
be liable to the employee, former employee,
or applicant for reasonable attorney's fees
and any other reasonable costs incurred, re-
gardless of the basis of the decision.
"(h)(1) An employee, former employee, or
applicant for employment adversely affect-
ed or aggrieved by a final order or decision
of the Board under this section may obtain
Judicial review of the order or decision.
"(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).
"(I) Subsection (a) through (h) shall apply
in any proceeding brought under section
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S 2810 CONGRESSIONAL RECORD ? SENATE March 16, 1989
7513(d) if, or to the extent that, a prohibit-
ed personnel practice as defined in section
2302(bX8) is alleged.
"(j) In determining the appealability of
any case involving an allegation made by an
Individual under the provisions of this chap-
ter, neither the status of an individual
under any retirement system established
under a Federal statute nor any election
made by such individual under any such
system may be taken into account
"61222. Availability of other remedies
"Except as provided in section 1221(1),
nothing in this chapter or chapter 23 shall
be construed to limit any right or remedy
available under a provision of statute which
is outside of both this chapter and chapter
23.".
"(b) CONFORMING AMENDMENTS.?(1) The
table of chapters for part II of title 5,
United States Code, is amended by striking
the item relating to chapter 12 and inserting
? in lieu thereof the following:
"12. Merit Systems Protection
Board. Office of Special Counsel,
' and Individual Right of Action .... 1201".
"(2) The heading for chapter 12 of title 5,
United States Code, is amended to read as
follows:
"CHAPTER 12?Msarr SYSTEMS PROTECTION
BOARD, OFFICE or SPECIAL COUNSEL, AND
EMPLOYEE Moir OF Acrros".
"(3) The table of sections for chapter 12
of title 5, United States Code, is amended to
read as follows:
"SlIBCHAPIER I?MERTT SYSTEMS PROTECTION
? 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 to
Congress.
"Sec. 1206. Annual report.
"SUBCHAPTER II--Orrics or 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 matters within the juris-
diction of the Office of Special
? Counsel.
"Sec. 1217. Transmittal of information to
Congress.
"Sec. 1218. Annual report.
"Sec. 1219. Public information.
"SUBCHAPTER III?INDIVM17AL RIGHT Or
ACTION Ill CERTAIN REPRISAL CASES
"Sec. 1221. Individual right of action in cer-
tain reprisal cases.
"Sec. 1222. Availability of other remedies.".
(4) Chapter 12 of title 5, United States
Code, is further amended by inserting
before section 1201 the following subchap-
ter heading:
"SUBCHAPTER I?MERIT SYSTEMS PROTECTION
BOARD".
SEC. 4. REPRISALS.
(a) AMENDMENTS TO Sacrum 2302(b)(8).?
Section 2302(b)(8) of title 5, United States
Code, is amended?
(1) by inserting ", or threaten to take or
fail to take," after "take or fall to take":
(2) by striking out "as a reprisal for" and
Inserting in lieu thereof "because of";
(3) in subparagraph (A) by striking out "a
disclosure" and inserting in lieu thereof
"any disclosure";
(4) In subparagraph (A)(11) by inserting
"gross" before "mismanagement";
(5) in subparagraph (B) by striking out "a
disclosure" and inserting in lieu thereof
"any disclosure"; and
(6) in subparagraph (B)(11) by inserting
"gross" before "mismanagement". ?
(b) AMENDMENT TO SECTION 2302(b)(9).?
Section 2302(b)(9) of title 5, United States
Code, is amended to read as follows:
"(9) take or fail to take, or threaten to
take or fail to take, any personnel action
against any employee or applicant for em-
ployment because of ?
"(A) the exercise of any appeal, com-
plaint, or grievance right granted by any
law, rule, or regulation:
"(B) testifying for or otherwise lawfully
assisting any individual in the exercise of
any right referred to in subparagraph (A):
"(C) cooperating with or disclosing infor-
mation to the Inspector General of an
agency, or the Special Counsel, in accord-
ance with applicable provisions of law; or
"(D) for refusing to obey an order that
would require the individual to violate a
law;".
SEC. 5. PREFERENCE IN TRANSFERS FOR WHISTLE-
BLOWERS.
(a) IN OlINERAL.?Subchapter IV of chap-
ter 33 of title 5, United States Code, is
amended by adding at the end thereof the.
folloiviag new section:
"(a) Sub -provisions of subsec-
tion (d) and (e), in filling a positon within
any Executive agency, the head of such
agency may give Executive agency, to trans-
fer to a position of the same status and
tenure as the position of such employee on
the date of applying for a transfer under
subsection (b) if?
"(1) such employee is otherwise qualified
for such position;
"(2) such employee is eligible for appoint-
ment to such position; and
"(3) the Merit Systems Protection Board
makes a determination under the provisions
of chapter 12 that a prohibited personnel
action described under section 3202(bX8)
NM taken against such employee.
"(b) An employee who meets the condi-
tions described under subsection (aX1). (2)
and (3) may volunarily apply for a transfer
to a position, as described in subsection (a),
within the Executive agency employing
such employee or any other Executive
agency.
? "(c) If an employee applies for a transfer
under the provisions of subsection (b) and
the selecting official rejects such applica-
tion, the selecting official shall provide the
employee with a written notification of the
reasons of the rejection within 30 days after
receiving such application.
"(d) An employee whose application for
transfer Is rejected under the provision of
subsection (C) may request the head of such
agency to review the rejection. Such request
for review shall be submitted to the head of
the agency within 30 days after the employ-
ee receives notification under subsection (c).
Within 30 days after receiving a request for
review, the head of the agency shall com-
plete the review and provide a written state-
ment of findings to the employee and the
Merit Systems Protection Board.
"(e) The provisions of subsection (a) shall
apply with regard to any employee?
"(1) for no more than I transfer;
"(2) for a transfer from or within the
agency such employee is employed at the
time of a determination by the Merit Sys-
tems Protection Board that a prohibited
personnel action as described under section
2302(b)(8) was taken against such employee;
and
"(3) no later than 18 months after such a
determination is made by the Merit Systems
Protection Board.
"(f) Notwithstanding the provisions of
subsection (a), no preference may be given
to any employee applying for a transfer
under subsection (b), with respect to a pref-
erence eligible (as defined under section
2108(3)) applying for the same position.".
(b) TECHNICAL AHENDIEENT.?The table of
sections for chapter 33 of title 5, United
States Code, is amended by inserting after
the item relating to section 3351 the follow-
ing:
"3352. Preference in transfers for employees
making certain disclosures.".
SEC. 6. INTERIM RELIEF.
Section 7701 of title 5, United States Code,
is amended?
(1) by redesignating subsection (b) as
paragraph (1) of subsection (b); and
(2) by adding at the end thereof the fol-
lowing new paragraph:
"(2)(A) If an employee or applicant for
employment is the prevailing party in an
appeal under this subsection, the employee
or applicant shall be granted the relief pro-
vided in the decision effective upon the
making of the decision, and remaining in
effect pending the outcome of any petition
for review under subsection (e), unless?
"(i) the deciding official determines that
the granting of such relief is not appropri-
ate; of
"WM) the relief granted in the decision
provides that such employee or applicant
shall return or be present at the place of
employment during the period pending the
outcome of any petition for review under
subsection (e); and
"(II) the employing agency, subject to the
provisions of subparagraph (B), determines
that the return or presence of such employ-
ee or applicant is unduly disruptive to the
work environment.
"(B) If an agency makes a determination
under subparagraph (A)(11XII) that pre-
vents the return or presence of an employee
at the place of employment, such employee
shall receive pay, compensation, and all
other benefits as terms and conditions of
employment during the period pending the
outcome of any petition for review under
subsection (e).
"(C) Nothing in the provision of this para-
graph may be construed to require any
award of back pay or attorney fees be paid
before the decision is Una". ?
SEC,?. SAVINGS PROVISIONS.
(a) ORDERS, RULES, AND R.zottaarross.?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) Aracmissamvi Proxszonms.?No pro-
vision of this Act shall affect any adminis-
trative proceeding 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 had not been
enacted.
(C) SUITS AND OTHER PROCWINGS.?NO
suit, action, or other proceedintlitavfully
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
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March 16, 1989 CONGRESSIONAL RECORD ? SENATE
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. 8. AUTHORIZATION OF APPROPRIATIONS: RE-
STRICTION RELATING TO APPROPRIA-
TIONS UNDER THE CIVIL. SERVICE
REFORM ACT OF 1978; TRANSFER OF
Yuma
(a) AvrnoalzsTioN or APPROPRIATIONS.?
There are authorized to be appropriated,
out of any moneys in the Treasury not oth-
erwise appropriated?
(1) for each of fiscal years 1989, 1990,
1991, 1992, 1993, and 1994, such sums as nec-
essary to carry out subchapter I of chapter
12 of title 5, United States Code (as amend-
ed by this Act); and
(2) for each of fiscal years 1989, 1990,
1991, and 1992, such sums as necessary to
carry out subchapter II of chapter 12 of
title 5, United States Code (as amended by
this Act).
(b) RESTRICTION RELATING TO APPROPRIA-
TIONS UNDER THE CIVIL SERVICE REFORM ACT
or 1978.?No funds may be appropriated to
the Merit Systems Protection Board or the
Office of Special Counsel pursuant to sec-
tion 903 of the Civil Service Reform Act of
1978(5 U.S.C. 5509 note).
(c) TRANSFER or FIINDS.?The personnel,
assets, liabilities, contracts, property,
records, and unexpended balances of appro-
priations, authorizations, allocations, and
other funds employed, held, used, arising
from, available or to be made available to
the Special Counsel of the Merit Systems
Protection Board are, subject to section
1531 of title 31, United States .Code, trans-
ferred to the Special Counsel referred to in
section 1211 of title 5, United States Code
(as added by section 3(a) of this Act), for ap-
propriate allocation.
SEC. & TECHNICAL AND CONFORMING AMEND.
MENTS.
(aX1) 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 1109(a) of the Foreign Service
Act of 1980 (22 U.S.C. 4139(a)) is amended
by striking 01206 and inserting "1214 or
1221".
(b) Section 3393(g) of title 5, United
States Code, is amended by strlldng "1207"
and inserting "1215".
SEC. 10. BOARD RESPONDENT.
Section 7703(aX2) of title 5. United States
Code, is amended to read as follows:
"(2) The Board shall be named respondent
In any proceeding brought pursuant to this
subsection, unless the employee or applicant
for employment seeks review of a final
order or decision on the merits on the un-
derlying personnel action or on a request
for attorney fees, in which case the agency
responsible for taking the personnel action the United States of America.
shall be the respondent.",
TO PREVENT DESECRATION OF
THE UNITED STATES FLAG
The PRESIDING OFFICER. With-
out objection, the Senate will now pro-
ceed to the consideration of S. 607,
which the clerk will state.
The assistant legislative clerk read
as follows:
A bill (S. 607) to prevent the desecration
of the United States Flag.
The Senate proceeded to consider
the bill.
Mr. COATS, Mr. President, I can
still vividly recall the outrage and re-
vulsion that I felt when I saw the TV
pictures of rioting Iranian students
stamping on the American flag, burn-
ing the American flag during the hos-
tage crisis some years ago. And those
same feelings flooded back on me
when I saw the stories and viewed the
pictures of how the American flag is
being used as a doormat in an exhibi-
tion at the School of the Arts Institute
in Chicago. There is something about
this kind of desecration that provokes
strong emotional reactions in all of us.
It is not that we Americans are inse-
cure or that we blindly follow tradi-
tions, but we do care deeply about
symbols, especially this one.
The American flag is more than hist
something to wave on the Fourth of
July. It is a symbol of ideals and
values for which men and women have
sacrificed and died in *every genera-
tion, and to desecrate that. symbol, I
believe, is to desecrate their memory
and make light of the men and women
who made the ultimate sacrifice in the
defense and service of their country.
It is easy to be cynical and sophisti-
cated?as easy as repeating supposedly
light and flippant opinions. But it is
harder to realize that some things
really do matter. They matter even if
violated in the name of humor. They
matter even if violated in the name of
art
Mr." President, there- is one thing
that we as Americans must never
lose?the ability to be outraged, the
ability to be offended. It means that
we still hold something sacred.
I. like many Americans, am outraged
at events in Chicago that desecrate
one of our Nation's most sacred sym-
bols. I am offended, and I rise to sup-
port Senator Dotes bill to amend title
18 of the United States Code.
Mr. DIXON. Mr. President, I rise
today to voice my support and add my
name to a bill that would outlaw the
malicious desecration of the flag of
We have a situation in Chicago, Mr.
President, where the U.S. flag has
been portrayed in art in a manner that
has raised the ire and offended the
sensibilities of many Americans. You
know the situation, Mr. President; the
flag is displayed in a way that encour-
ages visitors to the Chicago Art Insti-
tute to walk across the flag.
Today. I join as the principal co-
sponsor with Senator Doi/ of a bill
that outlaws the "displaying of the
SEC. II. EFFECTIVE DATE.
This Act and the amendments made by
this Act shall take effect 90 days following
the date of enactment of this Act.
Mr. MITCHELL Mr. President, I
move tqfrerep,sider the vote by which
tliiihinglislignielided. was passe&
Mr. LEVIN. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
S 2811
flag of the United States on the floor
or ground?'
Too many men, Mr. President, have
died, have given their "last full meas-
ure of devotion," for what this flag
represents?whether in the smoke-
filled trenches of Belleau Wood or on
the beaches of Normandy, on Heart-
break Ridge or in Quang Tri Province.
The U.S. flag represents the first
line of defense in the fight for the
preservation of the rights and liberties
of man at home and around the world.
We saw our flag trampled in Iran,
when our hostages were taken, Mr.
President; we do not need to see our
flag trampled at home.
? Mr. GRAMM. Mr. President, as a Co-
-
sponsor of this important bill offered
by the distinguished Republican
leader, I appreciate the opportunity to
comment on the situation which gives
rise to the need for it.
The young man who created his ex-
hibit at the School of Art Institute in
Chicago obviously is aglow with criti-'
cism for America, and it is his right to
express that criticism. But one expres-
sion to which he has neither a legal
nor a moral right is the intentional
desecration of an American flag.
Our flag is just a yard or so of fabric
and pigment, yet it is the symbol of a
nation for which millions of American
veterans have taken up arms and
thousands given their lives:
Most of us love our flag for what it
represents and we have never willingly
allowed anyone, either domestic critic
or foreign enemy, to desecrate it.
Again, Mr. President, I commend the
Republican leader for providing an op-
portunity to take action against those
who would sully our American flag.
The PRESIDING OFFICER. The
bill is before the Senate and open to
amendment. If there be no amend-
ment to be proposed, the question is
on the engrossment and third reading
of the bill.
The bill (S. 607) was ordered to be
engrossed for a third reading and was
read the third time.
The PRESIDING OFFICER. The
bill having been read the third time,
the question is, Shall the bill pass? On
this question, the yeas and nays have
been ordered and the clerk will call
the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that
the Senator from North Carolina (Mr.
SANFORD] is absent on official busi-
ness.
Mr. SIMPSON. I announce that the
Senator from Minnesota (Mr. BOSCH-
van] and the Senator from Utah (Mr.
GARN] are necessarily absent
The PRESIDING OFFICER (Mr.
LIEBERMAN). Are there any other Sena-
tors in the Chamber who desire to
vote?
The result was announced?yeas 97,
nays 0, as follows:
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