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.
This bill would amend Chapter 23 of Title 5, U.S. Code, to pare back and eliminate many of the restrictions that have been read into the language of the Whistleblower Protection Act (WPA) by the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board (MSPB). In addition, S. 743 would expand the scope of the WPA to cover new groups of employee whistleblowers, including employees of the Transportation Safety Administration and various entities within the intelligence community. The bill would also make it easier for the MSPB to issue final orders imposing disciplinary action against individuals who commit a prohibited personnel practice. Currently, the MSPB may punish violators by issuing orders permitting “removal, 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.” S. 743 would maintain that same penalty framework, but permit the MSPB to take disciplinary action against individuals who undertake a prohibited personnel practice where activities “protected under [5 U.S.C.] section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) [are] a significant motivating factor, even if other factors also motivated the decision … to take, fail to take, or threaten to take or fail to take a personnel action.”
This bill is related to S. 743, but there are several differences, although none affect criminal or quasi-criminal liability. S. 743 includes additional provisions regarding MSPB review, a sunset clause, and, in regards to relief, a lower standard for agencies to show they would have taken the personnel action had no disclosure been made (“preponderance of evidence” versus “clear and convincing evidence”).