Mr. President, today I rise to introduce legislation reauthorizing the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB). These two agencies safeguard the merit system principles and protect federal employees who step forward to disclose government waste, fraud, and abuse.
The Office of Special Counsel protects federal employees and applicants from reprisal for whistleblowing and other prohibited personnel practices. OSC serves as a safe and secure channel for federal workers who wish to disclose violations of law, gross mismanagement or waste of funds, abuse of authority, and a specific danger to the public health and safety. In addition, OSC enforces and provides advisory opinions regarding the Hatch Act, which restricts the political activities of federal employees. It also protects the rights of federal employee military veterans and reservists under the Uniformed Services Employment and Reemployment Rights Act of 1994.
The Merit Systems Protection Board monitors the federal government's merit-based system of employment by hearing and deciding appeals from federal employees regarding job removal and other major personnel actions. The Board also decides other types of civil service cases, reviews regulations of the Office of Personnel Management, and conducts studies of the merit systems. Together, OSC and MSPB act as stalwarts of justice for the dedicated men and women who serve the public.
In addition to reauthorizing these two important agencies, my bill would restore congressional intent regarding who is entitled to relief under the Whistleblower Protection Act (WPA). On several occasions, Congress has had to revisit the WPA to close loopholes in the law. Congress has been forced to specify that "any" disclosure truly means "any" disclosure. This is regardless of the setting of the disclosure, the form of the disclosure, or the person to whom the disclosure is made.
Since Congress amended the WPA in 1994, the Federal Circuit Court of Appeals, which has sole jurisdiction over the WPA, has continued to disregard clear statutory language that the Act covers disclosures such as those made to supervisors, to possible wrongdoers, or as part of an employee's job duties.
In order to protect the statute's foundation that 'any' lawful disclosure that an employee or applicant reasonably believes is credible evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, language in this bill codifies the repeated and unconditional statements of congressional intent and legislative history. It specifically covers any disclosure of information without restriction to time, place, form, motive, or 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 any violation of any law, rule, or regulation, or other misconduct specified.
The bill also addresses another burden created by the Federal Circuit not found in the Whistleblower Protection Act. In interpreting the meaning of 'reasonable belief,' the Federal Circuit held that the reasonableness of the whistleblower's belief that the government violated the law or engaged in gross mismanagement must first begin with a presumption that public officers performed their duties correctly, fairly, in good faith, and in accordance with the law. However, this presumption can only be overcome by "irrefragable proof" to the contrary. The irrefragable standard is impossible to overcome and has a chilling effect on those who would disclose government wrongdoing. As such, this new provision states that any presumption that a public officer has performed their duties in good faith must be overcome by substantial evidence.
My bill also codifies an ''anti-gag'' provision that Congress has passed annually since 1988 as part of its appropriations process. The yearly appropriations language bars agencies from implementing or enforcing any nondisclosure policy, form, or agreement that does not contain specified language preserving open government statutes such as the WPA, the Military Whistleblower Protection Act, and the Lloyd Lafollette Act, which prohibits discrimination against government employees who communicate with Congress. Moreover, Congress unanimously has supported the concept that federal employees should not be subject to restraint nor suffer retaliation for disclosing wrongdoing.
Now more than ever, federal employees must feel comfortable coming forward with information concerning violations of law or actions that could cause substantial harm to public safety. We must support the brave men and women who come forward to report wrongdoing. We must ensure that such acts of bravery are not rewarded with retaliation.
Protection of federal whistleblowers is a bipartisan effort. Enactment of the original bill in 1989 and the 1994 amendments enjoyed unanimous bicameral and bipartisan support. More recently, Senators Levin and Grassley joined me in introducing S.995, which makes many of the same amendments to the WPA as this bill. I urge my colleagues to join with me in clarifying the WPA and supporting the reauthorization of two very important agencies.
At this time I ask unanimous consent that this statement and the legislation be printed in the RECORD.
