Prohibits the implementation or enforcement of nondisclosure policies, forms, and agreements that do not state that such policies do not supersede, conflict with, or otherwise alter Federal employee obligations, rights, or liabilities.
Permits representation by attorneys for the Office of the Special Counsel in civil actions brought in connection with such disclosures of information or provisions relating to political activities. Allows the Special Counsel to obtain judicial review of any final order or decision of the Merit Systems Protection Board with respect to a case concerning such a disclosure or provision.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 995 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 995
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 7, 2001
Mr. Akaka (for himself, Mr. Levin, and Mr. Grassley) introduced the
following bill; which was read twice and referred to the Committee on
Governmental Affairs
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL
EMPLOYEES.
(a) 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 credible
evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation'';
(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 to the
Special Counsel, or to the Inspector General of an
agency or another employee designated by the head of
the agency to receive such disclosures, of information
that the employee or applicant reasonably believes is
credible evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(3) by adding at the end the following:
``(C) a 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 credible 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;
``(II) any other Member of Congress
who is authorized to receive
information of the type disclosed; or
``(III) an employee of the
executive branch or Congress who has
the appropriate security clearance for
access to the information disclosed.''.
(b) Covered Disclosures.--Section 2302(b) of title 5, United States
Code, is amended--
(1) in the matter following paragraph (12), by striking
``This subsection'' and inserting the following:
``This subsection''; and
(2) by adding at the end the following:
``In this subsection, the term `disclosure' means a formal or
informal communication or transmission.''.
(c) Nondisclosure Policies, Forms, and Agreements.--
(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 (xii)
and inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; 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 ``; or''; 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.'''.
(d) Authority of Special Counsel Relating to Civil Actions.--
(1) Representation of special counsel.--Section 1212 of
title 5, United States Code, is amended by adding at the end
the following:
``(h) Except as provided in section 518 of title 28, relating to
litigation before the Supreme Court, attorneys designated by the
Special Counsel may appear for the Special Counsel and represent the
Special Counsel in any civil action brought in connection with section
2302(b)(8) or subchapter III of chapter 73, or as otherwise authorized
by law.''.
(2) Judicial review of merit systems protection board
decisions.--Section 7703 of title 5, United States Code, is
amended by adding at the end the following:
``(e) The Special Counsel may obtain review of any final order or
decision of the Board by filing a petition for judicial review in the
United States Court of Appeals for the Federal Circuit if the Special
Counsel determines, in the discretion of the Special Counsel, that the
Board erred in deciding a case arising under section 2302(b)(8) or
subchapter III of chapter 73 and that the Board's decision will have a
substantial impact on the enforcement of section 2302(b)(8) or
subchapter III of chapter 73. If the Special Counsel was not a party or
did not intervene in a matter before the Board, the Special Counsel may
not petition for review of a Board decision under this section unless
the Special Counsel first petitions the Board for 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 proceedings before the
Court of Appeals. The granting of the petition for judicial review
shall be at the discretion of the Court of Appeals.''.
(e) Judicial Review.--Section 7703 of title 5, United States Code,
is amended--
(1) in the first sentence of subsection (b)(1) by inserting
before the period ``or the United States court of appeals for
the circuit in which the petitioner resides''; and
(2) in subsection (d)--
(A) in the first sentence by striking ``the United
States Court of Appeals for the Federal Circuit'' and
inserting ``any appellate court of competent
jurisdiction as provided under subsection (b)(2)''; and
(B) in the third and fourth sentences by striking
``Court of Appeals'' each place it appears and
inserting ``court of appeals'' in each such place.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S5970-5971)
Read twice and referred to the Committee on Governmental Affairs. (text of measure as introduced: CR S5971-5972)
Committee on Governmental Affairs referred to Subcommittee on International Security, Proliferation and Federal Services.
Committee on Governmental Affairs Subcommittee on International Security, Proliferation and Federal Services. Hearings held. With printed Hearing: S.Hrg. 107-160.
Committee on Environment and Public Works. Hearings held. Hearings printed: S.Hrg. 107-955.
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