These articles came in the mail today. It would appear that the Senate has indeed passed the Whistleblower Protections in S.274. Hopefully there is enough legislative support to override the inevitable Presidential Veto!

Senate Passes Major Whistleblower Reforms

Washington, DC., December 18, 2007. Last evening the U.S. Senate, by unanimous consent, passed the Federal Employee Protection of Disclosures Act (S.274). This law enhances the protection for federal employee whistleblowers by expanding the scope of protected activity to cover complaints within an employees chain of command.

Passage of S.274 now sets the stage for a conference between the House and Senate to agree final legislative language. On March 14, 2007 the House enacted the Whistleblower Protection Enhancement Act (H.R. 985), which expanded the scope of whistleblower protections to national security related agencies, permitted employees to obtain jury trials in federal court, provided enhanced protections for federal contractors and protected employees who exposed misconduct to their managers.

“The House and Senate whistleblower protections laws complement each other. They need to be melded together in conference and immediately enacted into law. Only by combining the best of both bills will federal employees obtain realistic protection. Until then, the taxpayers and citizens will remain the losers in this debate, as billions of dollars in waste remains unreported and government officials who violate the law and mislead the American people escape accountability,” said Stephen M. Kohn, the President of the National Whistleblower Center.

“The Senate Action now sets the stage for the final passage of what will be one of the most important laws enacted by this Congress,” added Kohn.

The House and Senate bills were strongly endorsed by a broad coalition of public groups, including the National Whistleblower Center, the Project on Government Oversight, the Government Accountability Project and Taxpayers Against Fraud, the No Fear Coalition, the Make it Safe Coalition, the National Employment Lawyers Association, OpentheGovernment.org, the Liberty Coalition, and the Bill of Rights Foundation, among numerous others.

For more information, visit the Whistleblower Protection Blog (www.WhistleblowersBlog.org)

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Since 1988 the NWC has championed whistleblower protection. In addition to advocating fair taxes for whistleblowers, the NWC is currently assisting Bunnatine Greenhouse (the former Army Corps of Engineers top contracting officer who opposed the no-bid multi billion dollar contracts awarded to Halliburton for the reconstruction of Iraq) and Mr. Bassem youssef, the FBI agent who demanded that the FBI‘s counterterrorism program comply with the laws concerning National Security Letters.
For more information, please visit www.whistleblowers.org and www.whistleblowersblog.org.

S.274 Passes Senate by Unanimous Consent!

FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT

Senate – December 17, 2007

[Page: S15782]  GPO’s PDF

   Ms. MIKULSKI:  I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 513, S. 274.

   The PRESIDING OFFICER:  The clerk will report the bill by title.

   The assistant legislative clerk read as follows:

   A bill (S. 274) to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.

   There being no objection, the Senate proceeded to consider the bill which had been reported from the Committee on Homeland Security and Government Affairs with an amendment to strike all after the enacting clause and insert in lieu thereof the following:

   SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL EMPLOYEES.

    (a) Short Title.–This Act may be cited as the “Federal Employee Protection of Disclosures Act”.

    (b) Clarification of Disclosures Covered.–Section 2302(b)(8) of title 5, United States Code, is amended–

    (1) in subparagraph (A)–

    (A) by striking “which the employee or applicant reasonably believes evidences” and inserting “, without restriction to time, place, form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, that the employee or applicant reasonably believes is evidence of”;

    (B) in clause (i), by striking “a violation” and inserting “any violation”; and

    (C) by striking “or” at the end;

    (2) in subparagraph (B)–

    (A) by striking “which the employee or applicant reasonably believes evidences” and inserting “, without restriction to time, place, form, motive, context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, of information that the employee or applicant reasonably believes is evidence of”;

    (B) in clause (i), by striking “a violation” and inserting “any violation (other than a violation of this section)”; and

    (C) in clause (ii), by adding “or” at the end; and

    (3) by adding at the end the following:

    “(C) any disclosure that–

    “(i) is made by an employee or applicant of information required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is direct and specific evidence of–

    “(I) any violation of any law, rule, or regulation;

    “(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

    “(III) a false statement to Congress on an issue of material fact; and

    “(ii) is made to–

    “(I) a member of a committee of Congress having a primary responsibility for oversight of a department, agency, or element of the Federal Government to which the disclosed information relates and who is authorized to receive information of the type disclosed;

    “(II) any other Member of Congress who is authorized to receive information of the type disclosed; or

    “(III) an employee of Congress who has the appropriate security clearance and is authorized to receive information of the type disclosed.”.

    (c) Covered Disclosures.–Section 2302(a)(2) of title 5, United States Code, is amended–

    (1) in subparagraph (B)(ii), by striking “and” at the end;

    (2) in subparagraph (C)(iii), by striking the period at the end and inserting “; and”; and

    (3) by adding at the end the following:

    “(D) `disclosure’ means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee providing the disclosure reasonably believes that the disclosure evidences–

    “(i) any violation of any law, rule, or regulation; or

    “(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”.

    (d) Rebuttable Presumption.–Section 2302(b) of title 5, United States Code, is amended by amending the matter following paragraph (12) to read as follows:

   “This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), any presumption relating to the performance of a duty by an employee who has authority to take, direct others to take, recommend, or approve any personnel action may be rebutted by substantial evidence. For purposes of paragraph (8), a determination as to whether an employee or applicant reasonably believes that they have disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.”.

    (e) Nondisclosure Policies, Forms, and Agreements; Security Clearances; and Retaliatory Investigations.–

    (1) PERSONNEL ACTION.–Section 2302(a)(2)(A) of title 5, United States Code, is amended–

    (A) in clause (x), by striking “and” after the semicolon; and

    (B) by redesignating clause (xi) as clause (xiv) and inserting after clause (x) the following:

    “(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement;

    “(xii) a suspension, revocation, or other determination relating to a security clearance or any other access determination by a covered agency;

    “(xiii) an investigation, other than any ministerial or nondiscretionary fact finding activities necessary for the agency to perform its mission, of an employee or applicant for employment because of any activity protected under this section; and”

    (2) PROHIBITED PERSONNEL PRACTICE.–Section 2302(b) of title 5, United States Code, is amended–

    (A) in paragraph (11), by striking “or” at the end;

    (B) in paragraph (12), by striking the period and inserting a semicolon; and

    (C) by inserting after paragraph (12) the following:

    “(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: `These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling’; or

    “(14) conduct, or cause to be conducted, an investigation, other than any ministerial or nondiscretionary fact finding activities necessary for the agency to perform its mission, of an employee or applicant for employment because of any activity protected under this section.”.

    (3) BOARD AND COURT REVIEW OF ACTIONS RELATING TO SECURITY CLEARANCES.–

    (A) IN GENERAL.–Chapter 77 of title 5, United States Code, is amended by inserting after section 7702 the following:“§7702a. Actions relating to security clearances

    “(a) In any appeal relating to the suspension, revocation, or other determination relating to a security clearance or access determination, the Merit Systems Protection Board or any reviewing court–

    “(1) shall determine whether paragraph (8) or (9) of section 2302(b) was violated;

    “(2) may not order the President or the designee of the President to restore a security clearance or otherwise reverse a determination of clearance status or reverse an access determination; and

    “(3) subject to paragraph (2), may issue declaratory relief and any other appropriate relief.

    “(b)(1) If, in any final judgment, the Board or court declares that any suspension, revocation, or other determination with regard to a security clearance or access determination was made in violation of paragraph (8) or (9) of section 2302(b), the affected agency shall conduct a review of that suspension, revocation, access determination, or other determination, giving great weight to the Board or court judgment.

    “(2) Not later than 30 days after any Board or court judgment declaring that a security clearance suspension, revocation, access determination, or other determination was made in violation of paragraph (8) or (9) of section 2302(b), the affected agency shall issue an unclassified report to the congressional committees of jurisdiction (with a classified annex if necessary), detailing the circumstances of the agency’s security clearance suspension, revocation, other determination, or access determination. A report under this paragraph shall include any proposed agency action with regard to the security clearance or access determination.

    “(c) An allegation that a security clearance or access determination was revoked or suspended in retaliation for a protected disclosure shall receive expedited review by the Office of Special Counsel, the Merit Systems Protection Board, and any reviewing court.

    “(d) For purposes of this section, corrective action may not be ordered if the agency demonstrates by a preponderance of the evidence that it would have taken the same personnel action in the absence of such disclosure.”.

    (B) TECHNICAL AND CONFORMING AMENDMENT.–The table of sections for chapter 77 of title 5, United States Code, is amended by inserting after the item relating to section 7702 the following:

   “7702a. Actions relating to security clearances.”.

    (f) Exclusion of Agencies by the President.–Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following:

    “(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency; and

    “(II) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, if the determination (as that determination relates to a personnel action) is made before that personnel action; or”.

    (g) Attorney Fees.–Section 1204(m)(1) of title 5, United States Code, is amended by striking “agency involved” and inserting “agency where the prevailing party is employed or has applied for employment”.

    (h) Disciplinary Action.–Section 1215(a)(3) of title 5, United States Code, is amended to read as follows:

    “(3)(A) A final order of the Board may impose–

    “(i) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

    “(ii) an assessment of a civil penalty not to exceed $1,000; or

    “(iii) any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii).

    “(B) In any case in which the Board finds that an employee has committed a prohibited personnel practice under paragraph (8) or (9) of section 2302(b), the Board shall impose disciplinary action if the Board finds that the activity protected under paragraph (8) or (9) of section 2302(b) was a significant motivating factor, even if other factors also motivated the decision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by preponderance of evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.”.

    (i) Special Counsel Amicus Curiae Appearance.–Section 1212 of title 5, United States Code, is amended by adding at the end the following:

    “(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to any civil action brought in connection with section 2302(b) (8) or (9), or subchapter III of chapter 73, or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b) (8) or (9) or subchapter III of chapter 73 and the impact court decisions would have on the enforcement of such provisions of law.

    “(2) A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described in subsection (a).”.

    (j) Judicial Review.–

    (1) IN GENERAL.–Section 7703(b)(1) of title 5, United States Code, is amended to read as follows:

    “(b)(1)(A) Except as provided in subparagraph (B) and paragraph (2), a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.

    “(B) During the 5-year period beginning on the effective date of the Federal Employee Protection of Disclosures Act, a petition to review a final order or final decision of the Board in a case alleging a violation of paragraph (8) or (9) of section 2302(b) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction as provided under subsection (b)(2).”.

    (2) REVIEW OBTAINED BY OFFICE OF PERSONNEL MANAGEMENT.–Section 7703(d) of title 5, United States Code, is amended to read as follows:

    “(d)(1) Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

    “(2) During the 5-year period beginning on the effective date of the Federal Employee Protection of Disclosures Act, this paragraph shall apply to any review relating to paragraph (8) or (9) of section 2302(b) obtained by the Director of the Office of Personnel Management. The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction as provided under subsection (b)(2) if the Director determines, in his discretion, that the Board erred in interpreting paragraph (8) or (9) of section 2302(b). If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.”.

    (k) Nondisclosure Policies, Forms, and Agreements.–

    (1) IN GENERAL.–

    (A) REQUIREMENT.–Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: “These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.”.

    (B) ENFORCEABILITY.–Any nondisclosure policy, form, or agreement described under subparagraph (A) that does not contain the statement required under subparagraph (A) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

    (2) PERSONS OTHER THAN GOVERNMENT EMPLOYEES.–Notwithstanding paragraph (1), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure forms shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

    (l) Clarification of Whistleblower Rights for Critical Infrastructure Information.–Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding at the end the following: “For purposes of this section a permissible use of independently obtained information includes the disclosure of such information under section 2302(b)(8) of title 5, United States Code.”.

    (m) Advising Employees of Rights.–Section 2302(c) of title 5, United States Code, is amended by inserting “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”.

    (n) Scope of Due Process.–

    (1) SPECIAL COUNSEL.–Section 1214(b)(4)(B)(ii) of title 5, United States Code, is amended by inserting “, after a finding that a protected disclosure was a contributing factor,” after “ordered if”.

    (2) INDIVIDUAL ACTION.–Section 1221(e)(2) of title 5, United States Code, is amended by inserting “, after a finding that a protected disclosure was a contributing factor,” after “ordered if”.

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