Calendar No. 698
102d CONGRESS
2d Session
S. 2853
[Report No. 102-416]
A BILL
To authorize appropriations for the United States Office of Special Counsel,
and for other purposes.
September 22 (legislative day, September 8), 1992
Reported with an amendment
S 2853 RS
Calendar No. 698
102d CONGRESS
2d Session
S. 2853
[Report No. 102-416]
To authorize appropriations for the United States Office of Special Counsel,
and for other purposes.
IN THE SENATE OF THE UNITED STATES
June 16, 1992
Mr. LEVINE (for himself and Mr. COHEN) introduced the following bill; which
was read twice and referred to the Committee on Governmental Affairs
September 22 (legislative day, SEPTEMBER 8), 1992
Reported by Mr. GLENN, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
A BILL
To authorize appropriations for the United States Office of Special Counsel,
and for other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
 [Struck out->] SECTION  1. AUTHORIZATION OF APPROPRIATIONS. [<-Struck out]
 [Struck out->]   Section 8(a)(2) of the Whistleblower Protection Act of
 1989 (5 U.S.C. 5509 note; Public Law 101-12; 103 Stat. 34) is amended by
 striking out `1989, 1990, 1991, and 1992,' and inserting in lieu thereof
 `1993 and 1994'. [<-Struck out]
 [Struck out->] SEC. 2. OFFICE OF SPECIAL COUNSEL. [<-Struck out]
 [Struck out->]   Chapter 12 of title 5, United States Code, is amended--
 [<-Struck out]
 [Struck out->]   (1) in section 1211(b) by inserting after the first sentence
 `The Special Counsel may continue to serve beyond the expiration of the
 term until a successor is appointed and has qualified, except that the
 Special Counsel may not continue to serve for more than one year after the
 date on which the term of the Special Counsel would otherwise expire under
 this subsection.'; [<-Struck out]
 [Struck out->]   (2) in section 1212(g)(1) by striking out `provide' and
 inserting in lieu thereof `disclose'; [<-Struck out]
 [Struck out->]   (3) in section 1214(a)(2), by adding at the end thereof
 the following new subparagraph: [<-Struck out]
 [Struck out->]   `(C) Upon the request of the person on whose allegation
 the investigation was initiated, the Special Counsel shall provide an oral
 briefing on the results of the investigation. Such oral briefing shall
 include-- [<-Struck out]
 [Struck out->]   `(i) a description of the investigation conducted by the
 Special Counsel; [<-Struck out]
 [Struck out->]   `(ii) a discussion of the relevant facts ascertained by
 the Special Counsel; [<-Struck out]
 [Struck out->]   `(iii) an explanation of the law applicable to the
 allegations; and [<-Struck out]
 [Struck out->]   `(iv) the Special Counsel's response to any reasonable
 question of the person regarding any matter relating to such briefing,
 description, discussion, or explanation.'; [<-Struck out]
 [Struck out->]   (4) in section 1214(b)(2)-- [<-Struck out]
 [Struck out->]   (A) by redesignating subparagraphs (A), (B) and (C) as
 subparagraphs (B), (C) and (D), respectively; [<-Struck out]
 [Struck out->]   (B) by inserting before subparagraph (B) (as redesignated
 by subparagraph (A) of this paragraph) the following: [<-Struck out]
 [Struck out->]   `(A) No later than 240 days after the date of receiving
 an allegation of a prohibited personnel practice under paragraph (1), the
 Special Counsel shall make a determination whether there are reasonable
 grounds to believe that a prohibited personnel practice has occurred,
 exists, or is to be taken.'; and [<-Struck out]
 [Struck out->]   (C) by amending subparagraph (C) (as redesignated by
 subparagraph (A) of this paragraph) to read as follows: [<-Struck out]
 [Struck out->]   `(C) If, within 45 days after receiving a report of the
 Special Counsel under subparagraph (B), the agency has not acted to correct
 the prohibited personnel practice, the Special Counsel shall petition the
 Board for corrective action.'; [<-Struck out]
 [Struck out->]   (5) in section 1221(d), by striking out paragraph (1)
 and inserting in lieu thereof the following: [<-Struck out]
 [Struck out->]   `(1) At the request of an employee, former employee, or
 applicant for employment seeking corrective action under subsection (a),
 the Board shall 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 the testimony or production requested is not unduly
 burdensome and appears reasonably calculated to lead to the discovery of
 admissible evidence.'; and [<-Struck out]
 [Struck out->]   (6) in section 1221(g)-- [<-Struck out]
 [Struck out->]   (A) in paragraph (1), by striking out `and any other
 reasonable costs incurred' and inserting in lieu thereof `and any other
 reasonable costs incurred directly or indirectly by the employee, former
 employee, or applicant.'; and [<-Struck out]
 [Struck out->]   (B) in paragraph (2), by striking out `and any other
 reasonable costs incurred,' and inserting in lieu thereof `and any other
 reasonable costs incurred directly or indirectly by the employee, former
 employee, or applicant,'. [<-Struck out]
 [Struck out->] SEC. 3. PROHIBITED PERSONNEL PRACTICES. [<-Struck out]
 [Struck out->]   Section 2302(a)(1)(A) of title 5, United States Code,
 is amended-- [<-Struck out]
 [Struck out->]   (1) in clause (ix) by striking out `and' after the semicolon;
 and [<-Struck out]
 [Struck out->]   (2) by redesignating clause (x) as clause (xi) and inserting
 before such clause the following: [<-Struck out]
 [Struck out->]   `(x) a decision to order psychiatric testing or examination;
 and'. [<-Struck out]
 [Struck out->] SEC. 4. IMPLEMENTATION. [<-Struck out]
 [Struck out->]   No later than 6 months after the date of enactment of this
 Act, the Special Counsel shall implement section 1212(g) of title 5, United
 States Code, by issuing detailed guidelines regarding the disclosure of
 information during the course of Special Counsel investigations of alleged
 prohibited personnel practices described under section 2302(b)(8) of such
 title. Such guidelines shall, at a minimum, specify-- [<-Struck out]
 [Struck out->]   (1) categories of information that may not be disclosed to
 agency officials without the consent of the person alleging the prohibited
 personnel practice; and [<-Struck out]
 [Struck out->]   (2) categories of information that may be disclosed
 to agency officials for the purpose of conducting an investigation,
 and the circumstances under which such information is likely to be
 disclosed. [<-Struck out]
 [Struck out->] SEC. 5. EFFECTIVE DATE. [<-Struck out]
 [Struck out->]   The provisions of this Act and the amendments made by this
 Act shall be effective on and after October 1, 1992. [<-Struck out]
SECTION 1. AUTHORIZATION OF APPROPRIATIONS.
  Section 8(a)(2) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509
  note; Public Law 101-12; 103 Stat. 34) is amended by striking out `1989,
  1990, 1991, and 1992' and inserting in lieu thereof `1993, 1994, and 1995'.
SEC. 2. OFFICE OF SPECIAL COUNSEL.
  Chapter 12 of title 5, United States Code, is amended--
  (1) in section 1211(b) by inserting after the first sentence: `The Special
  Counsel may continue to serve beyond the expiration of the term until a
  successor is appointed and has qualified, except that the Special Counsel
  may not continue to serve for more than one year after the date on which the
  term of the Special Counsel would otherwise expire under this subsection.';
  (2) in section 1212(g)--
  (A) in paragraph (1), by striking out `provide information concerning'
  and inserting in lieu thereof `disclose any information from or about'; and
  (B) in paragraph (2), by striking out `a matter described in subparagraph
  (A) or (B) of section 2302(b)(2) in connection with a' and inserting in
  lieu thereof `an evaluation of the work performance, ability, aptitude,
  general qualifications, character, loyalty, or suitability for any personnel
  action of any';
  (3) in section 1214(b)(2)--
  (A) by redesignating subparagraphs (A), (B) and (C) as subparagraphs (B),
  (C) and (D), respectively;
  (B) by inserting before subparagraph (B) (as redesignated by subparagraph
  (A) of this paragraph) the following:
  `(A)(i) Except as provided under clause (ii), no later than 240 days after
  the date of receiving an allegation of a prohibited personnel practice
  under paragraph (1), the Special Counsel shall make a determination whether
  there are reasonable grounds to believe that a prohibited personnel practice
  has occurred, exists, or is to be taken.
  `(ii) If the Special Counsel is unable to make the required determination
  within the 240-day period specified under clause (i) and the person
  submitting the allegation of a prohibited personnel practice agrees to an
  extension of time, the determination shall be made within such additional
  period of time as shall be agreed upon between the Special Counsel and
  the person submitting the allegation.'; and
  (C) by inserting after subparagraph (D) (as redesignated by subparagraph
  (A) of this paragraph) the following new subparagraph:
  `(E) A determination by the Special Counsel under this paragraph may not
  be admissible as evidence in any judicial or administrative proceeding,
  without the consent of the person submitting the allegation of a prohibited
  personnel practice.';
  (4) in section 1218 by inserting `cases in which it did not make a
  determination whether there are reasonable grounds to believe that a
  prohibited personnel practice has occurred, exists, or is to be taken
  within the 240-day period specified in section 1214(b)(2)(A)(i),' after
  `investigations conducted by it,';
  (5) in section 1221(d) by striking out paragraph (1) and inserting in lieu
  thereof the following:
  `(1) At the request of an employee, former employee, or applicant for
  employment seeking corrective action under subsection (a), the Board shall
  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 the testimony or production requested is not unduly burdensome
  and appears reasonably calculated to lead to the discovery of admissible
  evidence.'; and
  (6) in section 1221(g)--
  (A) in paragraph (1), by striking out `and any other reasonable costs
  incurred' and inserting in lieu thereof `and any other reasonable costs
  incurred directly or indirectly by the employee, former employee, or
  applicant.'; and
  (B) in paragraph (2), by striking out `and any other reasonable costs
  incurred,' and inserting in lieu thereof `and any other reasonable
  costs incurred directly or indirectly by the employee, former employee,
  or applicant,'.
SEC. 3. PROHIBITED PERSONNEL PRACTICES.
  (a) DEFINITION- Section 2302(a)(2)(A) of title 5, United States Code,
  is amended--
  (1) in clause (ix) by striking out `and' after the semicolon; and
  (2) by redesignating clause (x) as clause (xi) and inserting before such
  clause the following:
  `(x) a decision to order psychiatric testing or examination; and'.
  (b) INFORMATIONAL PROGRAM- Section 2302(c) of title 5, United States Code,
  is amended in the first sentence by inserting before the period `, and for
  ensuring (in consultation with the Office of Special Counsel) that agency
  employees are informed of the rights and remedies available to them under
  this chapter and chapter 12 of this title'.
SEC. 4. IMPLEMENTATION.
  No later than 6 months after the date of enactment of this Act, the Special
  Counsel shall issue a policy statement regarding the implementation of the
  Whistleblower Protection Act of 1989. Such policy statement shall be made
  available to each person alleging a prohibited personnel practice described
  under section 2302(b)(8) of title 5, United States Code, and shall include--
  (1) a statement that the Special Counsel shall include in any letter
  terminating an investigation under section 1214(a)(2) of title 5, United
  States Code, the name and telephone number of an employee of the Special
  Counsel who is available to respond to reasonable questions from the person
  regarding the investigation or review conducted by the Special Counsel, the
  relevant facts ascertained by the Special Counsel, and the law applicable
  to the person's allegations; and
  (2) detailed guidelines identifying specific categories of information that
  may (or may not) be communicated to agency officials for an investigative
  purpose, or for the purpose of obtaining corrective action under section
  1214 of title 5, United States Code, or disciplinary action under section
  1215 of such title, the circumstances under which such information is
  likely to be disclosed, and whether or not the consent of any person is
  required in advance of any such communication.
SEC. 5. EFFECTIVE DATE.
  The provisions of this Act and the amendments made by this Act shall be
  effective on and after October 1, 1992.