H.R. 4639, Thoroughly Investigating Retaliation Against Whistleblowers Act

H.R. 4639

Thoroughly Investigating Retaliation Against Whistleblowers Act

Sponsor
Rep. Rod Blum

Date
June 21, 2016 (114th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Tuesday, June 21, 2016, the House will consider H.R. 4639, the Thoroughly Investigating Retaliation Against Whistleblowers Act, under suspension of the rules. H.R. 4639 was introduced on February 26, 2016 by Rep. Rod Blum (R-IA), and was referred to the Committee on Oversight and Government Reform, which order the bill reported, as amended, on March 1, 2016.

Bill Summary

H.R. 4639 reauthorizes the U.S. Office of Special Counsel (OSC) and makes changes to improve the efficiency and effectiveness of OSC operations. Major provisions of H.R. 4639 include:

Reauthorization of OSC:

Section 2 of H.R. 4639 amends the Whistleblower Protection Act of 1989 to reauthorize through FY2020 the Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency tasked with protecting federal employees, former employees, and applicants for employment from prohibited personnel practices which include but are not limited to discrimination, nepotism, and whistleblower retaliation.

Agency Disclosure Requirements:

Section 3 gives OSC access to any record of any agency under its jurisdiction. Section 4, furthermore, extends the period for OSC review of prohibited practices disclosed by an agency for 30 days. It requires an agency to provide detailed explanation of any failure to take action on an OSC transmission about a prohibited practice. Section 4 also mandates the agency submit a supplemental report within 180 days on whether such proposed action has been taken and, if not, why not.

OSC Termination of Investigation Requirements:

Section 5 provides three conditions for OSC Investigation Terminations: (1) if that investigation involves an allegation that has been previously made by the same person, (2) if OSC lacks jurisdiction to investigate the allegation, or (3) if the person should have known of the alleged prohibited personnel practice earlier than three years before OSC received the allegation.

OSC Annual Reporting Requirements:

Section 6 expands OSC’s annual reporting requirements to include: (1) the cost of allegations disposed of by OSC; (2) the number of stays or disciplinary actions that OSC negotiates with agencies; (3) the number of stays and corrective action/disciplinary action petitions initiated before the Merit Systems Protection Board; and (4) the number of prohibited personnel practice complaints that result in favorable outcomes for the complainant.

Section 6 also requires OSC to include in its publicly disclosed list of noncriminal matters referred to agencies: (1) any comments from the complainant, provided that the availability to the public is not prohibited by law and consented to by the complainant; and (2) OSC’s comments or recommendations concerning the matter.

Section 7 establishes a pilot program to survey individuals who have filed a complaint with OSC to improve customer service.

Penalties for Hatch Act Violations:

The Hatch Act prohibits most Executive branch employees from engaging in certain forms of political activity. Section 8 of H.R. 4639 subjects employees who violate such requirements to disciplinary action and civil penalties.

Amendments:

The bill as amended requires that within two years of the date of enactment, OSC prescribe regulations to carry out 5 U.S.C. § 1213, which relates to whistleblower disclosures; § 1214, which relates to the investigation of prohibited personnel practices and the imposition of disciplinary action; and § 1215, which relates to disciplinary action.

Background

The Office of Special Counsel (OSC) is responsible for protecting federal employees from retaliation for “whistleblowing” on violations of law, mismanagement of funds, abuse of authority, or other prohibited personnel practices within the federal government. After receiving a retaliation complaint, OSC conducts an investigation to determine whether the employee has been fired, demoted, or suspended because the employee blew the whistle. If OSC can demonstrate that a personnel action was retaliatory, then it works with the agency to provide relief to the employee. If the agency does not agree to provide the requested relief to the employee, either through mediation or based on OSC investigative findings, OSC has the authority to initiate formal litigation on behalf of the whistleblower before the Merit Systems Protection Board which can deliver disciplinary action against agency officials.[1]

On December 16, 2015 the Committee on Oversight and Government Reform held a hearing to “begin the legislative process of reauthorizing the Office of Special Counsel.” In her testimony at that hearing, Special Counsel of OSC, Carolyn Lerner, recommended that Congress “reauthorize OSC for a period of five years.”[2] “OSC has not been formally reauthorized since 2007.”[3] Since then, the organization’s “caseload has risen over 50%, but the organization’s staff size has remained largely unchanged.”[4] “OSC has approximately 135 employees and it received approximately 6,000 cases in 2015.”[5] According to the Office’s FY2014 Congressional Budget Justification, “OSC operates on a shoestring – the smallest budget of any Federal law enforcement agency.” And “the shoestring is pulling tighter and fraying as the demand for OSC’s services far outpaces its resources.”[6] At the hearing, Lerner also requested Congress “provide OSC with direct, statutory authority to gain access to all agency information” citing “some difficulty in VA investigations with the timeliness and completeness of responses.”[7] Approximately two months after the hearing, H.R. 4639 was introduced. And Senator Ron Johnson (R-WI) proposed similar legislation, S.2968, on May 23, 2016.

After passage of H.R. 4639 through the Committee on Oversight and Government Reform, the bill’s sponsor remarked that, “The Office of Special Counsel plays a key role in protecting federal employees who have the courage to blow the whistle on abuse and mismanagement in our government. As those employees who called attention to the mistreatment of veterans at the Veterans’ Affairs hospitals know first-hand, the OSC is critically important to protect whistleblowers like them from potential retaliation from federal agencies. The reauthorization of the OSC is long past due, and I am encouraged by today’s strong bipartisan support for our legislation.”[8]

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[1] Carolyn Lerner, “Testimony: Reauthorization of the U.S. Office of Special Counsel,” December 16, 2015.
[2] Id.
[3] Carolyn Lerner, “Testimony: Improving VA Accountability: Examining First-Hand Accounts of Department of Veterans Affairs Whistleblowers,” September 22, 2015.
[4] The Office of Special Counsel, “FISCAL YEAR 2014 CONGRESSIONAL BUDGET JUSTIFICATION AND PERFORMANCE BUDGET GOALS.”
[5] Carolyn Lerner, “Testimony: Reauthorization of the U.S. Office of Special Counsel,” December 16, 2015
[6] The Office of Special Counsel, “FISCAL YEAR 2014 CONGRESSIONAL BUDGET JUSTIFICATION AND PERFORMANCE BUDGET GOALS.”
[7] Carolyn Lerner, “Testimony: Reauthorization of the U.S. Office of Special Counsel,” December 16, 2015
[8] See Rep. Rod Blum, “Blum Authored Legislation To Protect Whistleblowers Passes OGR Committee,” March 1, 2016.

Cost

The Congressional Budget Office (CBO) estimates that implementing this legislation would cost $106 million over the 2017-2021 period, assuming appropriation of the estimated amounts. Because enacting H.R. 4639 could affect the amount of revenues collected from civil fines imposed on federal employees who violate the Hatch Act, pay-as-you-go procedures apply. However, CBO estimates that enacting H.R. 4639 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2027.

Additional Information

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.