[House Report 115-510] [From the U.S. Government Publishing Office] 115th Congress } { Report HOUSE OF REPRESENTATIVES 2d Session } { 115-510 ====================================================================== WHISTLEBLOWER PROTECTION EXTENSION ACT OF 2017 _______ January 11, 2018.--Committed to the Committee of the Whole House on the State of the Union and ordered to be printed _______ Mr. Gowdy, from the Committee on Oversight and Government Reform, submitted the following R E P O R T [To accompany H.R. 4043] [Including cost estimate of the Congressional Budget Office] The Committee on Oversight and Government Reform, to whom was referred the bill (H.R. 4043) to amend the Inspector General Act of 1978 to reauthorize the whistleblower protection program, and for other purposes, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass. CONTENTS Page Summary and Purpose of the Legislation........................... 2 Background and Need for Legislation.............................. 2 Statement of Oversight Findings and Recommendations of the Committee...................................................... 2 Statement of General Performance Goals and Objectives............ 3 Legislative History.............................................. 3 Committee Consideration.......................................... 3 Roll Call Votes.................................................. 3 Explanation of Amendments........................................ 3 Application of Law to the Legislative Branch..................... 3 Duplication of Federal Programs.................................. 4 Disclosure of Directed Rule Makings.............................. 4 Federal Advisory Committee Act................................... 4 Unfunded Mandates Statement...................................... 4 Earmark Identification........................................... 4 Committee Estimate............................................... 4 New Budget Authority and Congressional Budget Office Cost Estimate....................................................... 4 Section-by-Section............................................... 6 Changes in Existing Law Made by the Bill, as Reported............ 6 The amendments (stated in terms of the page and line numbers of the introduced bill) are as follows: Page 2, line 25, strike the period and insert a semicolon. Page 5, strike lines 22 through 24 and insert the following: (d) Repeal of Sunset.-- (1) In general.--Subsection (c) of section 117 of the Whistleblower Protection Enhancement Act of 2012 (Public Law 112-199; 126 Stat. 1475) is repealed. (2) Retroactive effective date.--The amendment made by paragraph (1) shall take effect on November 26, 2017. Summary and Purpose of Legislation The Whistleblower Protection Extension Act of 2017 amends the Whistleblower Protection Enhancement Act of 2012\1\ by eliminating the sunset provision therein and amends the functions and name of the whistleblower ombudsman in the Inspector General Act of 1978.\2\ --------------------------------------------------------------------------- \1\Pub. L. No. 112-199, 126 Stat. 1465 (5 U.S.C. 101 note). \2\Pub. L. No. 95-452, 92 Stat. 101 (5 U.S.C. app.). --------------------------------------------------------------------------- Background and Need for Legislation H.R. 4043 makes permanent a successful pilot program to educate federal employees regarding their rights related to blowing the whistle on government waste, fraud, and abuse. Whistleblowers are the front line of defense against waste, fraud, and abuse in the federal government. However, too many federal employees remain unaware of the legal framework that Congress put in place to protect whistleblowers. To improve federal employees' awareness of their rights, Congress created the whistleblower ombudsman program in 2012.\3\ Under the program, agency inspectors general select an individual to serve as the agency's chief educator on whistleblower protections. The ombudsman--renamed the ``Whistleblower Protection Coordinator'' in the bill--is a central educational resource for agency employees who blow the whistle. --------------------------------------------------------------------------- \3\Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199. --------------------------------------------------------------------------- The whistleblower ombudsman program was one component of the Whistleblower Protection Enhancement Act of 2012.\4\ Since that time, the inspector general community has pointed to the effectiveness of the program.\5\ Agency employees have been empowered to report waste, fraud, and abuse pursuant to the protections for whistleblowers.\6\ Those whistleblower reports position Congress, inspectors general, and agency managers to make the federal government more efficient and effective. --------------------------------------------------------------------------- \4\Id. \5\Letter from Michael E. Horowitz, Chair, and Kathy A. Buller, Chair of Legislation Comm., Council of the Inspectors General on Integrity and Efficiency, to Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform, and Ron Johnson, Chairman, S. Comm. on Homeland Security & Governmental Affairs (Feb. 24, 2017). \6\Id. --------------------------------------------------------------------------- Statement of Oversight Findings and Recommendations of the Committee In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) of rule X of the Rules of the House of Representatives, the Committee's oversight findings and recommendations are reflected in the descriptive portions of this report. Statement of General Performance Goals and Objectives In accordance with clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, the Committee's performance goal or objective of this bill is to amend the Inspector General Act of 1978 to reauthorize the whistleblower protection program, and for other purposes. Legislative History On October 12, 2017, Representative Rod Blum (R-IA) introduced H.R. 4043, the Whistleblower Protection Extension Act of 2017, with the Ranking Minority Member of the Committee, Representative Elijah Cummings (D-MD). H.R. 4043 was referred to the Committee on Oversight and Government Reform. The Committee considered H.R. 4043 at a business meeting on November 2, 2017 and ordered the bill favorably reported, as amended, by voice vote. Senator Charles Grassley (R-OH) introduced S. 1869, the Senate companion to H.R. 4043, on September 27, 2017, with Senator Ron Johnson (R-WI), Senator Ron Wyden (D-OR), and Senator Claire McCaskill (D-MO). The Senate Committee on Homeland Security and Governmental Affairs considered S. 1869 at a business meeting on October 4, 2017 and ordered the bill reported favorably by voice vote. Committee Consideration On November 2, 2017, the Committee met in open session and, with a quorum being present, ordered the bill favorably reported, as amended, by voice vote. Roll Call Votes There were no roll call votes requested or conducted during Committee consideration of H.R. 4043. Explanation of Amendments During Committee consideration of the bill, Representative Rod Blum (R-IA) offered an amendment to allow the whistleblower ombudsman program to be extended if the current sunset provision is triggered on November 27, 2017. The amendment provides for a retroactive effective date, meaning even after the sunset provision triggers, the current bill can revive the program. The Blum amendment was adopted by voice vote. Application of Law to the Legislative Branch Section 102(b)(3) of Public Law 104-1 requires a description of the application of this bill to the legislative branch where the bill relates to the terms and conditions of employment or access to public services and accommodations. This bill amends the Inspector General Act of 1978 to reauthorize the whistleblower protection program, and for other purposes. As such, this bill does not relate to employment or access to public services and accommodations. Duplication of Federal Programs In accordance with clause 2(c)(5) of rule XIII no provision of this bill establishes or reauthorizes a program of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the Government Accountability Office to Congress pursuant to section 21 of Public Law 111-139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. Disclosure of Directed Rule Makings This bill does not direct the completion of any specific rule makings within the meaning of section 551 of title 5, United States Code. Federal Advisory Committee Act The Committee finds that the legislation does not establish or authorize the establishment of an advisory committee within the definition of Section 5(b) of the appendix to title 5, United States Code. Unfunded Mandates Statement Pursuant to section 423 of the Congressional Budget and Impoundment Control Act (Pub. L. 113-67) the Committee has included a letter received from the Congressional Budget Office below. Earmark Identification This bill does not include any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9 of rule XXI of the House of Representatives. Committee Estimate Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of the House of Representatives, the Committee includes below a cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. New Budget Authority and Congressional Budget Office Cost Estimate Pursuant to clause 3(c)(3) of rule XIII of the House of Representatives, the cost estimate prepared by the Congressional Budget Office and submitted pursuant to section 402 of the Congressional Budget Act of 1974 is as follows: U.S. Congress, Congressional Budget Office, Washington, DC, December 6, 2017. Hon. Trey Gowdy, Chairman, Committee on Oversight and Government Reform, House of Representatives, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4043, the Whistleblower Protection Extension Act of 2017. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Matthew Pickford. Sincerely, Keith Hall, Director. Enclosure. H.R. 4043--Whistleblower Protection Extension Act of 2017 H.R. 4043 would permanently extend the authority of all Inspector General (IG) offices to hire whistleblower protection ombudsmen. The specific authority to hire such employees has expired. Each of the 72 IG offices of the federal government currently have such an ombudsman. The bill also would create additional responsibilities for the ombudsmen and require additional reporting by IGs, agencies, and the Council of the Inspectors General on Integrity and Efficiency (CIGIE). Information from CIGIE and some IGs indicates that most of the additional responsibilities and reporting requirements in the bill would not impose a significant administrative burden. In addition, CBO expects that much of the work of the ombudsmen (whose job title would change to whistleblower protection coordinator under the bill) would be continued under current law. Therefore, CBO estimates that implementing H.R. 4043 would cost less than $500,000 annually; such spending would be subject to the availability of appropriated funds. Enacting H.R. 4043 could affect direct spending by agencies that are not funded through annual appropriations; therefore, pay-as-you-go procedures apply. CBO estimates, however, that any net increase in spending by those agencies would be negligible. Enacting the bill would not affect revenues. CBO estimates that enacting H.R. 4043 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028. H.R. 4043 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. On December 5, 2017, CBO transmitted a cost estimate for S. 1869, the Whistleblower Protection Coordination Act, as ordered reported by the Senate Committee on Homeland Security and Governmental Affairs on October 4, 2017. The two bills are similar and CBO's estimates of the budgetary effects are the same. The CBO staff contact for this estimate is Matthew Pickford. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. Section-by-Section Section 1. Short title The short title of the bill is the ``Whistleblower Protection Extension Act of 2017.'' Sec. 2. Purpose Section 2 amends the existing whistleblower ombudsman provision in the section 3(d) of the Inspector General Act of 1978, by renaming the ``Whistleblower Protection Ombudsman'' the ``Whistleblower Protection Coordinator'' and expanding the coordinator's responsibilities to provide agency employees with information on relief for whistleblower retaliation. In addition, the coordinator will assist the agency inspector general in promoting timely and appropriate handling of retaliation cases, and facilitate discussions between the Counsel of the Inspectors General on Integrity and Efficiency (CIGIE), the agency, Congress, and any other relevant entity regarding timely and efficient handling of retaliation cases. Section 2 also requires CIGIE to develop best practices for coordination and communication in promoting the timely and appropriate handling of protected disclosures and allegations of whistleblower retaliation. In addition, this section expands an existing inspector general report to include any adverse personnel actions or other consequences imposed on officials found to have engaged in whistleblower retaliation. Inspectors General would also be required to report whether the agency entered into a settlement agreement with the official that was found to have engaged in retaliation. The intent of this provision is to ensure Congress has information on whether a settlement exists, not to require the publication of personal or other identifying information or to require the disclosure of the contents of a settlement that is protected by a confidentiality agreement. Finally, section 2 repeals the sunset provision of the Whistleblower Protection Enhancement Act of 2012, making the whistleblower protection coordinator program permanent. Changes in Existing Law Made by the Bill, as Reported In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, and existing law in which no change is proposed is shown in roman): INSPECTOR GENERAL ACT OF 1978 * * * * * * * appointment and removal of officers Sec. 3. (a) There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation. (b) An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal. (c) For the purposes of section 7324 of title 5, United States Code, no Inspector General shall be considered to be an employee who determines policies to be pursued by the United States in the nationwide administration of Federal laws. (d)(1) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service-- (A) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations of the establishment; (B) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations; and (C) designate a Whistleblower Protection [Ombudsman who shall educate agency employees--] Coordinator who shall-- (i) educate agency employees-- [(i)] (I) about prohibitions [on retaliation] against retaliation for protected disclosures; and [(ii)] (II) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures[.], including-- (aa) the means by which employees may seek review of any allegation of reprisal, including the roles of the Office of the Inspector General, the Office of Special Counsel, the Merit Systems Protection Board, and any other relevant entities; and (bb) general information about the timeliness of such cases, the availability of any alternative dispute mechanisms, and avenues for potential relief; (ii) assist the Inspector General in promoting the timely and appropriate handling and consideration of protected disclosures and allegations of reprisal, to the extent practicable, by the Inspector General; and (iii) assist the Inspector General in facilitating communication and coordination with the Special Counsel, the Council of the Inspectors General on Integrity and Efficiency, the agency, Congress, and any other relevant entity regarding the timely and appropriate handling and consideration of protected disclosures, allegations of reprisal, and general matters regarding the implementation and administration of whistleblower protection laws, rules, and regulations. (2) The Whistleblower Protection [Ombudsman] Coordinator shall not act as a legal representative, agent, or advocate of the employee or former employee. (3) The Whistleblower Protection Coordinator shall have direct access to the Inspector General as needed to accomplish the requirements of this subsection. [(3)] (4) For the purposes of this section, the requirement of the designation of a Whistleblower Protection Ombudsman under paragraph (1)(C) shall not apply to-- (A) any agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))); or (B) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counter intelligence activities. (e) The annual rate of basic pay for an Inspector General (as defined under section 12(3)) shall be the rate payable for level III of the Executive Schedule under section 5314 of title 5, United States Code, plus 3 percent. (f) An Inspector General (as defined under section 8G(a)(6) or 12(3)) may not receive any cash award or cash bonus, including any cash award under chapter 45 of title 5, United States Code. (g) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service, obtain legal advice from a counsel either reporting directly to the Inspector General or another Inspector General. * * * * * * * reports Sec. 5. (a) Each Inspector General shall, not later than April 30 and October 31 of each year, prepare semiannual reports summarizing the activities of the Office during the immediately preceding six-month periods ending March 31 and September 30. Such reports shall include, but need not be limited to-- (1) a description of significant problems, abuses, and deficiencies relating to the administration of programs and operations of such establishment disclosed by such activities during the reporting period; (2) a description of the recommendations for corrective action made by the Office during the reporting period with respect to significant problems, abuses, or deficiencies identified pursuant to paragraph (1); (3) an identification of each significant recommendation described in previous semiannual reports on which corrective action has not been completed; (4) a summary of matters referred to prosecutive authorities and the prosecutions and convictions which have resulted; (5) a summary of each report made to the head of the establishment under section 6(c)(2) during the reporting period; (6) a listing, subdivided according to subject matter, of each audit report, inspection reports, and evaluation reports issued by the Office during the reporting period and for each report, where applicable, the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs) and the dollar value of recommendations that funds be put to better use; (7) a summary of each particularly significant report; (8) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs), for reports-- (A) for which no management decision had been made by the commencement of the reporting period; (B) which were issued during the reporting period; (C) for which a management decision was made during the reporting period, including-- (i) the dollar value of disallowed costs; and (ii) the dollar value of costs not disallowed; and (D) for which no management decision has been made by the end of the reporting period; (9) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of recommendations that funds be put to better use by management, for reports-- (A) for which no management decision had been made by the commencement of the reporting period; (B) which were issued during the reporting period; (C) for which a management decision was made during the reporting period, including-- (i) the dollar value of recommendations that were agreed to by management; and (ii) the dollar value of recommendations that were not agreed to by management; and (D) for which no management decision has been made by the end of the reporting period; (10) a summary of each audit report, inspection reports, and evaluation reports issued before the commencement of the reporting period-- (A) for which no management decision has been made by the end of the reporting period (including the date and title of each such report), an explanation of the reasons such management decision has not been made, and a statement concerning the desired timetable for achieving a management decision on each such report; (B) for which no establishment comment was returned within 60 days of providing the report to the establishment; and (C) for which there are any outstanding unimplemented recommendations, including the aggregate potential cost savings of those recommendations. (11) a description and explanation of the reasons for any significant revised management decision made during the reporting period; (12) information concerning any significant management decision with which the Inspector General is in disagreement; (13) the information described under section 804(b) of the Federal Financial Management Improvement Act of 1996; (14)(A) an appendix containing the results of any peer review conducted by another Office of Inspector General during the reporting period; or (B) if no peer review was conducted within that reporting period, a statement identifying the date of the last peer review conducted by another Office of Inspector General; (15) a list of any outstanding recommendations from any peer review conducted by another Office of Inspector General that have not been fully implemented, including a statement describing the status of the implementation and why implementation is not complete; (16) a list of any peer reviews conducted by the Inspector General of another Office of the Inspector General during the reporting period, including a list of any outstanding recommendations made from any previous peer review (including any peer review conducted before the reporting period) that remain outstanding or have not been fully implemented; (17) statistical tables showing-- (A) the total number of investigative reports issued during the reporting period; (B) the total number of persons referred to the Department of Justice for criminal prosecution during the reporting period; (C) the total number of persons referred to State and local prosecuting authorities for criminal prosecution during the reporting period; and (D) the total number of indictments and criminal informations during the reporting period that resulted from any prior referral to prosecuting authorities; (18) a description of the metrics used for developing the data for the statistical tables under paragraph (17); (19) a report on each investigation conducted by the Office involving a senior Government employee where allegations of misconduct were substantiated, including a detailed description of-- (A) the facts and circumstances of the investigation; and (B) the status and disposition of the matter, including-- (i) if the matter was referred to the Department of Justice, the date of the referral; and (ii) if the Department of Justice declined the referral, the date of the declination; [(20) a detailed description of any instance of whistleblower retaliation, including information about the official found to have engaged in retaliation and what, if any, consequences the establishment imposed to hold that official accountable;] (20)(A) a detailed description of any instance of whistleblower retaliation, including information about the official found to have engaged in retaliation; and (B) what, if any, consequences the establishment actually imposed to hold the official described in subparagraph (A) accountable; (21) a detailed description of any attempt by the establishment to interfere with the independence of the Office, including-- (A) with budget constraints designed to limit the capabilities of the Office; and (B) incidents where the establishment has resisted or objected to oversight activities of the Office or restricted or significantly delayed access to information, including the justification of the establishment for such action; and (22) detailed descriptions of the particular circumstances of each-- (A) inspection, evaluation, and audit conducted by the Office that is closed and was not disclosed to the public; and (B) investigation conducted by the Office involving a senior Government employee that is closed and was not disclosed to the public. (b) Semiannual reports of each Inspector General shall be furnished to the head of the establishment involved not later than April 30 and October 31 of each year and shall be transmitted by such head to the appropriate committees or subcommittees of the Congress within thirty days after receipt of the report, together with a report by the head of the establishment containing-- (1) any comments such head determines appropriate; (2) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of disallowed costs, for reports-- (A) for which final action had not been taken by the commencement of the reporting period; (B) on which management decisions were made during the reporting period; (C) for which final action was taken during the reporting period, including-- (i) the dollar value of disallowed costs that were recovered by management through collection, offset, property in lieu of cash, or otherwise; and (ii) the dollar value of disallowed costs that were written off by management; and (D) for which no final action has been taken by the end of the reporting period; (3) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of recommendations that funds be put to better use by management agreed to in a management decision, for reports-- (A) for which final action had not been taken by the commencement of the reporting period; (B) on which management decisions were made during the reporting period; (C) for which final action was taken during the reporting period, including-- (i) the dollar value of recommendations that were actually completed; and (ii) the dollar value of recommendations that management has subsequently concluded should not or could not be implemented or completed; and (D) for which no final action has been taken by the end of the reporting period; [and] (4) whether the establishment entered into a settlement agreement with the official described in subsection (a)(20)(A), which shall be reported regardless of any confidentiality agreement relating to the settlement agreement; and [(4)] (5) a statement with respect to audit reports on which management decisions have been made but final action has not been taken, other than audit reports on which a management decision was made within the preceding year, containing-- (A) a list of such audit reports and the date each such report was issued; (B) the dollar value of disallowed costs for each report; (C) the dollar value of recommendations that funds be put to better use agreed to by management for each report; and (D) an explanation of the reasons final action has not been taken with respect to each such audit report, except that such statement may exclude such audit reports that are under formal administrative or judicial appeal or upon which management of an establishment has agreed to pursue a legislative solution, but shall identify the number of reports in each category so excluded. (c) Within sixty days of the transmission of the semiannual reports of each Inspector General to the Congress, the head of each establishment shall make copies of such report available to the public upon request and at a reasonable cost. Within 60 days after the transmission of the semiannual reports of each establishment head to the Congress, the head of each establishment shall make copies of such report available to the public upon request and at a reasonable cost. (d) Each Inspector General shall report immediately to the head of the establishment involved whenever the Inspector General becomes aware of particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations of such establishment. The head of the establishment shall transmit any such report to the appropriate committees or subcommittees of Congress within seven calendar days, together with a report by the head of the establishment containing any comments such head deems appropriate. (e)(1) Nothing in this section shall be construed to authorize the public disclosure of information which is-- (A) specifically prohibited from disclosure by any other provision of law; (B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or (C) a part of an ongoing criminal investigation. (2) Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record. (3) Except to the extent and in the manner provided under section 6103(f) of the Internal Revenue Code of 1986, nothing in this section or in any other provision of this Act shall be construed to authorize or permit the withholding of information from the Congress, or from any committee or subcommittee thereof. (4) Subject to any other provision of law that would otherwise prohibit disclosure of such information, the information described in paragraph (1) may be provided to any Member of Congress upon request. (5) An Office may not provide to Congress or the public any information that reveals the personally identifiable information of a whistleblower under this section unless the Office first obtains the consent of the whistleblower. (f) As used in this section-- (1) the term ``questioned cost'' means a cost that is questioned by the Office because of-- (A) an alleged violation of a provision of a law, regulation, contract, grant, cooperative agreement, or other agreement or document governing the expenditure of funds; (B) a finding that, at the time of the audit, such cost is not supported by adequate documentation; or (C) a finding that the expenditure of funds for the intended purpose is unnecessary or unreasonable; (2) the term ``unsupported cost'' means a cost that is questioned by the Office because the Office found that, at the time of the audit, such cost is not supported by adequate documentation; (3) the term ``disallowed cost'' means a questioned cost that management, in a management decision, has sustained or agreed should not be charged to the Government; (4) the term ``recommendation that funds be put to better use'' means a recommendation by the Office that funds could be used more efficiently if management of an establishment took actions to implement and complete the recommendation, including-- (A) reductions in outlays; (B) deobligation of funds from programs or operations; (C) withdrawal of interest subsidy costs on loans or loan guarantees, insurance, or bonds; (D) costs not incurred by implementing recommended improvements related to the operations of the establishment, a contractor or grantee; (E) avoidance of unnecessary expenditures noted in preaward reviews of contract or grant agreements; or (F) any other savings which are specifically identified; (5) the term ``management decision'' means the evaluation by the management of an establishment of the findings and recommendations included in an audit report and the issuance of a final decision by management concerning its response to such findings and recommendations, including actions concluded to be necessary; (6) the term ``final action'' means-- (A) the completion of all actions that the management of an establishment has concluded, in its management decision, are necessary with respect to the findings and recommendations included in an audit report; and (B) in the event that the management of an establishment concludes no action is necessary, final action occurs when a management decision has been made; and (7) the term ``senior Government employee'' means-- (A) an officer or employee in the executive branch (including a special Government employee as defined in section 202 of title 18, United States Code) who occupies a position classified at or above GS-15 of the General Schedule or, in the case of positions not under the General Schedule, for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for GS-15 of the General Schedule; and (B) any commissioned officer in the Armed Forces in pay grades O-6 and above. * * * * * * * SEC. 11. ESTABLISHMENT OF THE COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY. (a) Establishment and Mission.-- (1) Establishment.--There is established as an independent entity within the executive branch the Council of the Inspectors General on Integrity and Efficiency (in this section referred to as the ``Council''). (2) Mission.--The mission of the Council shall be to-- (A) address integrity, economy, and effectiveness issues that transcend individual Government agencies; and (B) increase the professionalism and effectiveness of personnel by developing policies, standards, and approaches to aid in the establishment of a well-trained and highly skilled workforce in the offices of the Inspectors General. (b) Membership.-- (1) In general.--The Council shall consist of the following members: (A) All Inspectors General whose offices are established under-- (i) section 2; or (ii) section 8G. (B) The Inspectors General of the Intelligence Community and the Central Intelligence Agency. (C) The Controller of the Office of Federal Financial Management. (D) A senior level official of the Federal Bureau of Investigation designated by the Director of the Federal Bureau of Investigation. (E) The Director of the Office of Government Ethics. (F) The Special Counsel of the Office of Special Counsel. (G) The Deputy Director of the Office of Personnel Management. (H) The Deputy Director for Management of the Office of Management and Budget. (I) The Inspectors General of the Library of Congress, Capitol Police, Government Printing Office, Government Accountability Office, and the Architect of the Capitol. (2) Chairperson and executive chairperson.-- (A) Executive chairperson.--The Deputy Director for Management of the Office of Management and Budget shall be the Executive Chairperson of the Council. (B) Chairperson.--The Council shall elect 1 of the Inspectors General referred to in paragraph (1)(A) or (B) to act as Chairperson of the Council. The term of office of the Chairperson shall be 2 years. (3) Functions of chairperson and executive chairperson.-- (A) Executive chairperson.--The Executive Chairperson shall-- (i) preside over meetings of the Council; (ii) provide to the heads of agencies and entities represented on the Council summary reports of the activities of the Council; and (iii) provide to the Council such information relating to the agencies and entities represented on the Council as assists the Council in performing its functions. (B) Chairperson.--The Chairperson shall-- (i) convene meetings of the Council-- (I) at least 6 times each year; (II) monthly to the extent possible; and (III) more frequently at the discretion of the Chairperson; (ii) carry out the functions and duties of the Council under subsection (c); (iii) appoint a Vice Chairperson to assist in carrying out the functions of the Council and act in the absence of the Chairperson, from a category of Inspectors General described in subparagraph (A)(i), (A)(ii), or (B) of paragraph (1), other than the category from which the Chairperson was elected; (iv) make such payments from funds otherwise available to the Council as may be necessary to carry out the functions of the Council; (v) select, appoint, and employ personnel as needed to carry out the functions of the Council subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay rates; (vi) to the extent and in such amounts as may be provided in advance by appropriations Acts, made available from the revolving fund established under subsection (c)(3)(B), or as otherwise provided by law, enter into contracts and other arrangements with public agencies and private persons to carry out the functions and duties of the Council; (vii) establish, in consultation with the members of the Council, such committees as determined by the Chairperson to be necessary and appropriate for the efficient conduct of Council functions; and (viii) prepare and transmit an annual report on behalf of the Council on the activities of the Council to-- (I) the President; (II) the appropriate committees of jurisdiction of the Senate and the House of Representatives; (III) the Committee on Homeland Security and Governmental Affairs of the Senate; and (IV) the Committee on Oversight and Government Reform of the House of Representatives. (c) Functions and Duties of Council.-- (1) In general.--The Council shall-- (A) continually identify, review, and discuss areas of weakness and vulnerability in Federal programs and operations with respect to fraud, waste, and abuse; (B) develop plans for coordinated, Governmentwide activities that address these problems and promote economy and efficiency in Federal programs and operations, including interagency and interentity audit, investigation, inspection, and evaluation programs and projects to deal efficiently and effectively with those problems concerning fraud and waste that exceed the capability or jurisdiction of an individual agency or entity; (C) develop policies that will aid in the maintenance of a corps of well-trained and highly skilled Office of Inspector General personnel; (D) maintain an Internet website and other electronic systems for the benefit of all Inspectors General, as the Council determines are necessary or desirable; (E) maintain 1 or more academies as the Council considers desirable for the professional training of auditors, investigators, inspectors, evaluators, and other personnel of the various offices of Inspector General; (F) submit recommendations of individuals to the appropriate appointing authority for any appointment to an office of Inspector General described under subsection (b)(1)(A) or (B); (G) make such reports to Congress as the Chairperson determines are necessary or appropriate; (H) except for matters coordinated among Inspectors General under section 3033 of title 50, United States Code, receive, review, and mediate any disputes submitted in writing to the Council by an Office of Inspector General regarding an audit, investigation, inspection, evaluation, or project that involves the jurisdiction of more than one Office of Inspector General; and (I) perform other duties within the authority and jurisdiction of the Council, as appropriate. (2) Adherence and participation by members.--To the extent permitted under law, and to the extent not inconsistent with standards established by the Comptroller General of the United States for audits of Federal establishments, organizations, programs, activities, and functions, each member of the Council, as appropriate, shall-- (A) adhere to professional standards developed by the Council; and (B) participate in the plans, programs, and projects of the Council, except that in the case of a member described under subsection (b)(1)(I), the member shall participate only to the extent requested by the member and approved by the Executive Chairperson and Chairperson. (3) Additional administrative authorities.-- (A) Interagency funding.--Notwithstanding section 1532 of title 31, United States Code, or any other provision of law prohibiting the interagency funding of activities described under subclause (I), (II), or (III) of clause (i), in the performance of the responsibilities, authorities, and duties of the Council-- (i) the Executive Chairperson may authorize the use of interagency funding for-- (I) Governmentwide training of employees of the Offices of the Inspectors General; (II) the functions of the Integrity Committee of the Council; and (III) any other authorized purpose determined by the Council; and (ii) upon the authorization of the Executive Chairperson, any Federal agency or designated Federal entity (as defined in section 8G(a)) which has a member on the Council shall fund or participate in the funding of such activities. (B) Revolving fund.-- (i) In general.--The Council may-- (I) establish in the Treasury of the United States a revolving fund to be called the Inspectors General Council Fund; or (II) enter into an arrangement with a department or agency to use an existing revolving fund. (ii) Amounts in revolving fund.-- (I) In general.--Amounts transferred to the Council under this subsection shall be deposited in the revolving fund described under clause (i)(I) or (II). (II) Training.--Any remaining unexpended balances appropriated for or otherwise available to the Inspectors General Criminal Investigator Academy and the Inspectors General Auditor Training Institute shall be transferred to the revolving fund described under clause (i)(I) or (II). (iii) Use of revolving fund.-- (I) In general.--Except as provided under subclause (II), amounts in the revolving fund described under clause (i)(I) or (II) may be used to carry out the functions and duties of the Council under this subsection. (II) Training.--Amounts transferred into the revolving fund described under clause (i)(I) or (II) may be used for the purpose of maintaining any training academy as determined by the Council. (iv) Availability of funds.--Amounts in the revolving fund described under clause (i)(I) or (II) shall remain available to the Council without fiscal year limitation. (C) Superseding provisions.--No provision of law enacted after the date of enactment of this subsection shall be construed to limit or supersede any authority under subparagraph (A) or (B), unless such provision makes specific reference to the authority in that paragraph. (4) Existing authorities and responsibilities.--The establishment and operation of the Council shall not affect-- (A) the role of the Department of Justice in law enforcement and litigation; (B) the authority or responsibilities of any Government agency or entity; and (C) the authority or responsibilities of individual members of the Council. (5) Additional responsibilities relating to whistleblower protection.--The Council shall-- (A) facilitate the work of the Whistleblower Protection Coordinators designated under section 3(d)(C); and (B) in consultation with the Office of Special Counsel and Whistleblower Protection Coordinators from the member offices of the Inspector General, develop best practices for coordination and communication in promoting the timely and appropriate handling and consideration of protected disclosures, allegations of reprisal, and general matters regarding the implementation and administration of whistleblower protection laws, in accordance with Federal law. (d) Integrity Committee.-- (1) Establishment.--The Council shall have an Integrity Committee, which shall receive, review, and refer for investigation allegations of wrongdoing that are made against Inspectors General and staff members of the various Offices of Inspector General described under paragraph (4)(C). (2) Membership.-- (A) In general.--The Integrity Committee shall consist of the following members: (i) The official of the Federal Bureau of Investigation serving on the Council. (ii) Four Inspectors General described in subparagraph (A) or (B) of subsection (b)(1) appointed by the Chairperson of the Council, representing both establishments and designated Federal entities (as that term is defined in section 8G(a)). (iii) The Director of the Office of Government Ethics or the designee of the Director. (B) Chairperson.-- (i) In general.--The Integrity Committee shall elect one of the Inspectors General referred to in subparagraph (A)(ii) to act as Chairperson of the Integrity Committee. (ii) Term.--The term of office of the Chairperson of the Integrity Committee shall be 2 years. (3) Legal advisor.--The Chief of the Public Integrity Section of the Criminal Division of the Department of Justice, or his designee, shall serve as a legal advisor to the Integrity Committee. (4) Referral of allegations.-- (A) Requirement.--An Inspector General shall refer to the Integrity Committee any allegation of wrongdoing against a staff member of the office of that Inspector General, if-- (i) review of the substance of the allegation cannot be assigned to an agency of the executive branch with appropriate jurisdiction over the matter; and (ii) the Inspector General determines that-- (I) an objective internal investigation of the allegation is not feasible; or (II) an internal investigation of the allegation may appear not to be objective. (B) Definition.--In this paragraph the term ``staff member'' means any employee of an Office of Inspector General who-- (i) reports directly to an Inspector General; or (ii) is designated by an Inspector General under subparagraph (C). (C) Designation of staff members.--Each Inspector General shall annually submit to the Chairperson of the Integrity Committee a designation of positions whose holders are staff members for purposes of subparagraph (B). (5) Review of allegations.-- (A) In general.--Not later than 7 days after the date on which the Integrity Committee receives an allegation of wrongdoing against an Inspector General or against a staff member of an Office of Inspector General described under paragraph (4)(C), the allegation of wrongdoing shall be reviewed and referred to the Department of Justice or the Office of Special Counsel for investigation, or to the Integrity Committee for review, as appropriate, by-- (i) a representative of the Department of Justice, as designated by the Attorney General; (ii) a representative of the Office of Special Counsel, as designated by the Special Counsel; and (iii) a representative of the Integrity Committee, as designated by the Chairperson of the Integrity Committee. (B) Referral to the chairperson.-- (i) In general.--Except as provided in clause (ii), not later than 30 days after the date on which an allegation of wrongdoing is referred to the Integrity Committee under subparagraph (A), the Integrity Committee shall determine whether to refer the allegation of wrongdoing to the Chairperson of the Integrity Committee to initiate an investigation. (ii) Extension.--The 30-day period described in clause (i) may be extended for an additional period of 30 days if the Integrity Committee provides written notice to the congressional committees described in paragraph (8)(A)(iii) that includes a detailed, case-specific description of why the additional time is needed to evaluate the allegation of wrongdoing. (6) Authority to investigate allegations.-- (A) Requirement.--The Chairperson of the Integrity Committee shall cause a thorough and timely investigation of each allegation referred under paragraph (5)(B) to be conducted in accordance with this paragraph. (B) Resources.--At the request of the Chairperson of the Integrity Committee, the head of each agency or entity represented on the Council-- (i) shall provide assistance necessary to the Integrity Committee; and (ii) may detail employees from that agency or entity to the Integrity Committee, subject to the control and direction of the Chairperson, to conduct an investigation under this subsection. (7) Procedures for investigations.-- (A) Standards applicable.--Investigations initiated under this subsection shall be conducted in accordance with the most current Quality Standards for Investigations issued by the Council or by its predecessors (the President's Council on Integrity and Efficiency and the Executive Council on Integrity and Efficiency). (B) Additional policies and procedures.-- (i) Establishment.--The Integrity Committee, in conjunction with the Chairperson of the Council, shall establish additional policies and procedures necessary to ensure fairness and consistency in-- (I) determining whether to initiate an investigation; (II) conducting investigations; (III) reporting the results of an investigation; (IV) providing the person who is the subject of an investigation with an opportunity to respond to any Integrity Committee report; (V) except as provided in clause (ii), ensuring, to the extent possible, that investigations are conducted by Offices of Inspector General of similar size; (VI) creating a process for rotation of Inspectors General assigned to investigate allegations through the Integrity Committee; and (VII) creating procedures to avoid conflicts of interest for Integrity Committee investigations. (ii) Exception.--The requirement under clause (i)(V) shall not apply to any Office of Inspector General with less than 50 employees who are authorized to conduct audits or investigations. (iii) Submission to congress.--The Council shall submit a copy of the policies and procedures established under clause (i) to the congressional committees of jurisdiction. (C) Completion of investigation.--If an allegation of wrongdoing is referred to the Chairperson of the Integrity Committee under paragraph (5)(B), the Chairperson of the Integrity Committee-- (i) shall complete the investigation not later than 150 days after the date on which the Integrity Committee made the referral; and (ii) if the investigation cannot be completed within the 150-day period described in clause (i), shall-- (I) promptly notify the congressional committees described in paragraph (8)(A)(iii); and (II) brief the congressional committees described in paragraph (8)(A)(iii) every 30 days regarding the status of the investigation and the general reasons for delay until the investigation is complete. (D) Concurrent investigation.--If an allegation of wrongdoing against an Inspector General or a staff member of an Office of Inspector General described under paragraph (4)(C) is referred to the Department of Justice or the Office of Special Counsel under paragraph (5)(A), the Chairperson of the Integrity Committee may conduct any related investigation referred to the Chairperson under paragraph (5)(B) concurrently with the Department of Justice or the Office of Special Counsel, as applicable. (E) Reports.-- (i) Integrity committee investigations.--For each investigation of an allegation of wrongdoing referred to the Chairperson of the Integrity Committee under paragraph (5)(B), the Chairperson of the Integrity Committee shall submit to members of the Integrity Committee and to the Chairperson of the Council a report containing the results of the investigation. (ii) Other investigations.--For each allegation of wrongdoing referred to the Department of Justice or the Office of Special Counsel under paragraph (5)(A), the Attorney General or the Special Counsel, as applicable, shall submit to the Integrity Committee a report containing the results of the investigation. (iii) Availability to congress.-- (I) In general.--The congressional committees described in paragraph (8)(A)(iii) shall have access to any report authored by the Integrity Committee. (II) Members of congress.-- Subject to any other provision of law that would otherwise prohibit disclosure of such information, the Integrity Committee may provide any report authored by the Integrity Committee to any Member of Congress. (8) Assessment and final disposition.-- (A) In general.--With respect to any report received under paragraph (7)(E), the Integrity Committee shall-- (i) assess the report; (ii) forward the report, with the recommendations of the Integrity Committee, including those on disciplinary action, within 30 days (to the maximum extent practicable) after the completion of the investigation, to the Executive Chairperson of the Council and to the President (in the case of a report relating to an Inspector General of an establishment or any employee of that Inspector General) or the head of a designated Federal entity (in the case of a report relating to an Inspector General of such an entity or any employee of that Inspector General) for resolution; and (iii) submit the report, with the recommendations of the Integrity Committee, to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and other congressional committees of jurisdiction; and (iv) following the submission of the report under clause (iii) and upon request by any Member of Congress, submit the report, with the recommendations of the Integrity Committee, to that Member. (B) Disposition.--The Executive Chairperson of the Council shall report to the Integrity Committee the final disposition of the matter, including what action was taken by the President or agency head. (9) Annual report.--The Council shall submit to Congress and the President by December 31 of each year a report on the activities of the Integrity Committee during the preceding fiscal year, which shall include the following: (A) The number of allegations received. (B) The number of allegations referred to the Department of Justice or the Office of Special Counsel, including the number of allegations referred for criminal investigation. (C) The number of allegations referred to the Chairperson of the Integrity Committee for investigation. (D) The number of allegations closed without referral. (E) The date each allegation was received and the date each allegation was finally disposed of. (F) In the case of allegations referred to the Chairperson of the Integrity Committee, a summary of the status of the investigation of the allegations and, in the case of investigations completed during the preceding fiscal year, a summary of the findings of the investigations. (G) Other matters that the Council considers appropriate. (10) Requests for more information.--With respect to paragraphs (8) and (9), the Council shall provide more detailed information about specific allegations upon request from any Member of Congress. (11) No right or benefit.--This subsection is not intended to create any right or benefit, substantive or procedural, enforceable at law by a person against the United States, its agencies, its officers, or any person. (12) Allegations of wrongdoing against special counsel or deputy special counsel.-- (A) Special counsel defined.--In this paragraph, the term ``Special Counsel'' means the Special Counsel appointed under section 1211(b) of title 5, United States Code. (B) Authority of integrity committee.-- (i) In general.--An allegation of wrongdoing against the Special Counsel or the Deputy Special Counsel may be received, reviewed, and referred for investigation to the same extent and in the same manner as in the case of an allegation against an Inspector General or against a staff member of an Office of Inspector General described under paragraph (4)(C), subject to the requirement that the representative designated by the Special Counsel under paragraph (5)(A)(ii) shall recuse himself or herself from the consideration of any allegation brought under this paragraph. (ii) Coordination with existing provisions of law.--This paragraph shall not eliminate access to the Merit Systems Protection Board for review under section 7701 of title 5, United States Code. To the extent that an allegation brought under this paragraph involves section 2302(b)(8) of such title, a failure to obtain corrective action within 120 days after the date on which the allegation is received by the Integrity Committee shall, for purposes of section 1221 of such title, be considered to satisfy section 1214(a)(3)(B) of such title. (C) Regulations.--The Integrity Committee may prescribe any rules or regulations necessary to carry out this paragraph, subject to such consultation or other requirements as may otherwise apply. (13) Committee records.--The Chairperson of the Council shall maintain the records of the Integrity Committee. * * * * * * * ---------- WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012 * * * * * * * TITLE I--PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL EMPLOYEES * * * * * * * SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN. (a) In General.--Section 3 of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by striking subsection (d) and inserting the following: ``(d)(1) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service-- ``(A) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations of the establishment; ``(B) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations; and ``(C) designate a Whistleblower Protection Ombudsman who shall educate agency employees-- ``(i) about prohibitions on retaliation for protected disclosures; and ``(ii) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures. ``(2) The Whistleblower Protection Ombudsman shall not act as a legal representative, agent, or advocate of the employee or former employee. ``(3) For the purposes of this section, the requirement of the designation of a Whistleblower Protection Ombudsman under paragraph (1)(C) shall not apply to-- ``(A) any agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))); or ``(B) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counter intelligence activities.''. (b) Technical and Conforming Amendment.--Section 8D(j) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended-- (1) by striking ``section 3(d)(1)'' and inserting ``section 3(d)(1)(A)''; and (2) by striking ``section 3(d)(2)'' and inserting ``section 3(d)(1)(B)''. [(c) Sunset.-- [(1) In general.--The amendments made by this section shall cease to have effect on the date that is 5 years after the date of enactment of this Act. [(2) Return to prior authority.--Upon the date described in paragraph (1), section 3(d) and section 8D(j) of the Inspector General Act of 1978 (5 U.S.C. App.) shall read as such sections read on the day before the date of enactment of this Act.] * * * * * * *