Sec. 9. Treatment of whistleblower complaints in Department of Veterans Affairs
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Chapter 7 is further amended by adding at the end the following new subchapter: In this subchapter, the term whistleblower complaint means a complaint by an employee of the Department disclosing, or assisting another employee to disclose, a potential violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. In addition to any other method established by law in which an employee may file a whistleblower complaint, an employee of the Department may file a whistleblower complaint in accordance with subsection
(g)with a supervisor of the employee. Except as provided by subsection (d)(1), in making a whistleblower complaint under paragraph (1), an employee shall file the initial complaint with the immediate supervisor of the employee. Not later than 4 business days after the date on which a supervisor receives a whistleblower complaint by an employee under this section, the supervisor shall notify, in writing, the employee of whether the supervisor determines that there is a reasonable likelihood that the complaint discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. The supervisor shall retain written documentation regarding the whistleblower complaint and shall submit to the next-level supervisor a written report on the complaint. On a monthly basis, the supervisor shall submit to the appropriate director or other official who is superior to the supervisor a written report that includes the number of whistleblower complaints received by the supervisor under this section during the month covered by the report, the disposition of such complaints, and any actions taken because of such complaints pursuant to subsection (c). In the case in which such a director or official carries out this paragraph, the director or official shall submit such monthly report to— the supervisor of the director or official; the Committees on Veterans’ Affairs of the Senate and House or Representatives; and each Member of Congress representing a district in the State or territory where the facility where the supervisor is employed is located. If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint of an employee, the supervisor shall include in the notification to the employee under such subsection the specific actions that the supervisor will take to address the complaint. If any circumstance described in paragraph
(3)is met, an employee may file a whistleblower complaint in accordance with subsection
(g)with the next-level supervisor who shall treat such complaint in accordance with this section. An employee may file a whistleblower complaint with the Secretary if the employee has filed the whistleblower complaint to each level of supervisors between the employee and the Secretary in accordance with paragraph (1). A circumstance described in this paragraph are any of the following circumstances: A supervisor does not make a timely determination under subsection (b)(1) regarding a whistleblower complaint. The employee who made a whistleblower complaint determines that the supervisor did not adequately address the complaint pursuant to subsection (c). The immediate supervisor of the employee is the basis of the whistleblower complaint. If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint filed by an employee, the Secretary shall— inform the employee of the ability to volunteer for a transfer in accordance with section 3352 of title 5; and give preference to the employee for such a transfer in accordance with such section. The Secretary may not exempt any employee of the Department from being covered by this section. A whistleblower complaint filed by an employee under subsection
(a)or
(d)shall consist of the form described in paragraph
(2)and any supporting materials or documentation the employee determines necessary. The form described in this paragraph is a form developed by the Secretary, in consultation with the Special Counsel, that includes the following: An explanation of the purpose of the whistleblower complaint form. Instructions for filing a whistleblower complaint as described in this section. An explanation that filing a whistleblower complaint under this section does not preclude the employee from any other method established by law in which an employee may file a whistleblower complaint. A statement directing the employee to information accessible on the Internet website of the Department as described in section 745(c). Fields for the employee to provide— the date that the form is submitted; the name of the employee; the contact information of the employee; a summary of the whistleblower complaint (including the option to append supporting documents pursuant to paragraph (1)); and proposed solutions to complaint. Any other information or fields that the Secretary determines appropriate. The Secretary, in consultation with the Special Counsel, shall develop the form described in paragraph
(2)by not later than 60 days after the date of the enactment of this section. In accordance with paragraph (2), the Secretary shall carry out the following adverse actions against supervisory employees whom the Secretary, an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or the Inspector General of the Department determines committed a prohibited personnel action described in subsection (c): With respect to the first offense, an adverse action that is not less than a 14-day suspension and not more than removal. With respect to the second offense, removal. Except as provided by subparagraph (B), with respect to a supervisory employee subject to an adverse action under this section who is— an individual as that term is defined in section 715(i)(1) of this title, the procedures under subsections
(d)and
(e)of section 715 of this title shall apply; and an individual as that term is defined in section 713(g)(1) of this title, the procedures under section 713(d) of this title shall apply. An employee who is notified of being the subject of a proposed adverse action under paragraph
(1)may not be given more than 10 days following such notification to provide evidence to dispute such proposed adverse action. If the employee does not provide any such evidence, or if the Secretary determines that such evidence is not sufficient to reverse the determination to propose the adverse action, the Secretary shall carry out the adverse action following such 10-day period. With respect to a prohibited personnel action described in subsection (c), if the Secretary carries out an adverse action against a supervisory employee, the Secretary may carry out an additional adverse action under this section based on the same prohibited personnel action if the total severity of the adverse actions do not exceed the level specified in subsection (a). A prohibited personnel action described in this subsection is any of the following actions: Taking or failing to take a personnel action in violation of section 2302 of title 5 against an employee relating to the employee— filing a whistleblower complaint in accordance with section 742 of this title; filing a whistleblower complaint with the Inspector General of the Department, the Special Counsel, or Congress; providing information or participating as a witness in an investigation of a whistleblower complaint in accordance with section 742 or with the Inspector General of the Department, the Special Counsel, or Congress; participating in an audit or investigation by the Comptroller General of the United States; refusing to perform an action that is unlawful or prohibited by the Department; or engaging in communications that are related to the duties of the position or are otherwise protected. Preventing or restricting an employee from making an action described in any of subparagraphs
(A)through
(F)of paragraph (1). Conducting a peer review or opening a retaliatory investigation relating to an activity of an employee that is protected by section 2302 of title 5. Requesting a contractor to carry out an action that is prohibited by section 4705(b) or section 4712(a)(1) of title 41, as the case may be. In evaluating the performance of supervisors of the Department, the Secretary shall include the criteria described in paragraph (2). The criteria described in this subsection are the following: Whether the supervisor treats whistleblower complaints in accordance with section 742. Whether the appropriate deciding official, performance review board, or performance review committee determines that the supervisor was found to have committed a prohibited personnel action described in section 743(b) by an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or, in the case of a settlement of a whistleblower complaint (regardless of whether any fault was assigned under such settlement), the Secretary. The Secretary may not pay to a supervisor described in subsection (a)(2)(B) an award or bonus under this title or title 5, including under chapter 45 or 53 of such title, during the 1-year period beginning on the date on which the determination was made under such subsection. Notwithstanding any other provision of law, the Secretary shall issue an order directing a supervisor described in subsection (a)(2)(B) to repay the amount of any award or bonus paid under this title or title 5, including under chapter 45 or 53 of such title, if— such award or bonus was paid for performance during a period in which the supervisor committed a prohibited personnel action as determined pursuant to such subsection (a)(2)(B); the Secretary determines such repayment appropriate pursuant to regulations prescribed by the Secretary to carry out this section; and before such order is made, the supervisor is afforded— notice of the order and an opportunity to respond to the order; and an opportunity to appeal the order to another department or agency of the Federal Government, except that— any such department or agency shall issue a final decision with respect to such appeal not later than the date that is 30 days after the date the department or agency received such appeal; and if such a final decision is not made by the applicable department or agency within 30 days after receiving such appeal, the order of the Secretary shall be final and not subject to further appeal. The Secretary, in coordination with the Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. App.), shall annually provide to each employee of the Department training regarding whistleblower complaints, including— an explanation of each method established by law in which an employee may file a whistleblower complaint; an explanation of prohibited personnel actions described by section 743(c) of this title; with respect to supervisors, how to treat whistleblower complaints in accordance with section 742 of this title; the right of the employee to petition Congress regarding a whistleblower complaint in accordance with section 7211 of title 5; an explanation that the employee may not be prosecuted or reprised against for disclosing information to Congress in instances where such disclosure is permitted by law, including under sections 5701, 5705, and 7332 of this title, under section 552a of title 5 (commonly referred to as the Privacy Act), under chapter 93 of title 18, and pursuant to regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 ( Public Law 104–191 ); an explanation of the language that is required to be included in all nondisclosure policies, forms, and agreements pursuant to section 115(a)(1) of the Whistleblower Protection Enhancement Act of 2012 ( 5 U.S.C. 2302 note); and the right of contractors to be protected from reprisal for the disclosure of certain information under section 4705 or 4712 of title 41. The Secretary shall annually provide training on merit system protection in a manner that the Special Counsel certifies as being satisfactory. The Secretary shall publish on the Internet website of the Department, and display prominently at each facility of the Department, the rights of an employee to file a whistleblower complaint, including the information described in paragraphs
(1)through
(7)of subsection (a). The Secretary shall publish on the Internet website of the Department, the whistleblower complaint form described in section 742(g)(2). Not later than 30 days after the date on which the Secretary receives from the Special Counsel information relating to a whistleblower complaint pursuant to section 1213 of title 5, the Secretary shall notify the Committees on Veterans’ Affairs of the House of Representatives and the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate and each Member of Congress representing a district in the State or territory where a facility relevant to the whistleblower complaint is located of such information, including the determination made by the Special Counsel. . Such chapter is further amended by inserting before section 701 the following: . The table of sections at the beginning of such chapter is amended— by inserting before the item relating to section 701 the following new item: Subchapter I—General employee matters ; and by adding at the end the following new items: Subchapter II—Whistleblower complaints 741. Whistleblower complaint defined. 742. Treatment of whistleblower complaints. 743. Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints. 744. Evaluation criteria of supervisors and treatment of bonuses. 745. Training regarding whistleblower complaints. 746. Notice to Congress. .
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- Pub. L. 104-191
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Sec. 9
Treatment of whistleblower complaints in Department of Veterans Affairs
Pub. L.Pub. L. 104-191
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