Strengthening VA Whistleblower Protection Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8860 To amend title 38, United States Code, to make certain improvements in the laws relating to whistleblower protection at the Department of Vet- erans Affairs, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 3, 2020 Mr. PAPPAS introduced the following bill; which was referred to the Committee on Veterans’ Affairs A BILL To amend title 38, United States Code, to make certain improvements in the laws relating to whistleblower pro- tection at the Department of Veterans Affairs, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Strengthening VA 4 Whistleblower Protection Act of 2020’’. 5 VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 8860 IH SEC. 2. INDEPENDENCE OF OFFICE OF ACCOUNTABILITY 1 AND WHISTLEBLOWER PROTECTION FROM 2 GENERAL COUNSEL. 3 Subsection (e) of section 323 of title 38, United 4 States Code, is amended— 5 (1) by inserting ‘‘(1)’’ before ‘‘The Office’’; and 6 (2) by adding at the end the following new 7 paragraphs: 8 ‘‘(2) The General Counsel of the Department shall 9 establish an Office of General Counsel for the Office of 10 Accountability and Whistleblower Protection. Such Office, 11 and the employees of such Office, shall be independent of 12 the Office of the General Counsel of the Department. 13 ‘‘(3) The General Counsel of the Department, or any 14 employee of the Office of the General Counsel of the De- 15 partment, may not directly or indirectly provide any rec- 16 ommendation, advisory opinion, or authoritative decision 17 for any matter relevant to a whistleblower case under the 18 jurisdiction of the Office and the Assistant Secretary. 19 ‘‘(4) No employee of the Office of the General Coun- 20 sel of the Department may be detailed, reassigned, or oth- 21 erwise employed by the Office of Accountability and Whis- 22 tleblower Protection before the date that is two years after 23 the date on which such employee ceases to be an employee 24 of the Office of the General Counsel of the Department.’’. 25 VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 8860 IH SEC. 3. TECHNICAL ASSISTANCE AND GUIDANCE FOR WHIS- 1 TLEBLOWERS. 2 (a) IN GENERAL.—Subchapter II of chapter 7 of 3 such title is amended by adding at the end the following 4 new section: 5 ‘‘§ 734. Technical assistance for whistleblowers 6 ‘‘(a) IN GENERAL.—The Assistant Secretary for Ac- 7 countability and Whistleblower Protection shall— 8 ‘‘(1) make all reasonable efforts to— 9 ‘‘(A) guide, advise, and assist a whistle- 10 blower regarding a whistleblower’s rights and 11 the abilities and authorities of different entities 12 that assist or respond to whistleblowers; 13 ‘‘(B) obtain all evidence necessary to sub- 14 stantiate the complaint of the whistleblower of 15 any alleged— 16 ‘‘(i) violation of any law, rule, or regu- 17 lation; 18 ‘‘(ii) gross mismanagement; 19 ‘‘(iii) waste of funds; 20 ‘‘(iv) abuse of authority; 21 ‘‘(v) specific danger to public health 22 or safety; or 23 ‘‘(vi) censorship related to research, 24 analysis, or technical information; and 25 VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 8860 IH ‘‘(2) provide for an optional alternative dispute 1 resolution program, which shall include attempts to 2 mediate resolutions or find reassignments for De- 3 partment employees involved in whistleblower allega- 4 tions. 5 ‘‘(b) SHARING OF RECORDS.—As part of the assist- 6 ance provided under this section, the Assistant Secretary 7 shall make all reasonable efforts to obtain and share rel- 8 evant records to the claimant that the claimant adequately 9 identifies to the Secretary. 10 ‘‘(c) WHISTLEBLOWER DEFINED.—In this section, 11 the term ‘whistleblower’ has the meaning given such term 12 in section 323(h) of this title.’’. 13 (b) CLERICAL AMENDMENT.—The table of sections 14 at the beginning of such chapter is amended by inserting 15 after the item section 733 the following new item: 16 ‘‘734. Technical assistance for whistleblowers.’’. SEC. 4. EXPANSION OF WHISTLEBLOWER PROTECTIONS. 17 (a) CLARIFICATION OF PROHIBITED PERSONNEL AC- 18 TION.—Section 731(c)(3) of title 38, United States Code, 19 is amended by inserting ‘‘making a referral to boards of 20 licensure’’ after ‘‘negative peer review’’. 21 (b) FUNCTION OF OFFICE OF ACCOUNTABILITY AND 22 WHISTLEBLOWER PROTECTION.—Section 323 of such 23 title, as amended by section 2, is further amended— 24 VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 8860 IH (1) in subsection (c)(1), by adding at the end 1 the following new subparagraph: 2 ‘‘(J) Without affecting other statutory rights or 3 remedies, issuing binding decisions for temporary re- 4 lief when a Department employee demonstrates, by 5 a preponderance of the evidence, that a prohibited 6 personnel action was a contributing factor with re- 7 spect to alleged retaliation against a Department 8 employee by a Department supervisor.’’; and 9 (2) in subsection (g), by adding at the end the 10 following new paragraph: 11 ‘‘(5) The term ‘prohibited personnel action’ has 12 the meaning given such term in section 731(c) of 13 this title.’’. 14 (c) ANTI-RETALIATION PROTECTION FOR SENIOR 15 EXECUTIVES.—Subsection (e) of section 714 of such title, 16 as amended by subsection (c), is further amended by add- 17 ing at the end the following new paragraph: 18 ‘‘(4) Notwithstanding subsection (h)(1)(A), for pur- 19 poses of this subsection, the term ‘covered individual’ in- 20 cludes an individual occupying a senior executive position 21 (as defined in section 713(d) of this title).’’. 22 SEC. 5. REQUIREMENT FOR REGULATIONS. 23 Not later than one year after the date of the enact- 24 ment of this Act, the Assistant Secretary for Account- 25 VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 8860 IH ability and Whistleblower Protection of the Department 1 of Veterans Affairs shall issue regulations to carry out all 2 activities under section 323 of title 38, United States 3 Code, as amended by this Act. 4 Æ VerDate Sep 11 2014 20:21 Dec 15, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\H8860.IH H8860 pamtmann on DSKBC07HB2PROD with BILLS