[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1094 Enrolled Bill (ENR)]
S.1094
One Hundred Fifteenth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the third day of January, two thousand and seventeen
An Act
To amend title 38, United States Code, to improve the accountability of
employees of the Department of Veterans Affairs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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(a) Short Title.--This Act may be cited as the ``Department of
Veterans Affairs Accountability and Whistleblower Protection Act of
2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:

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TITLE I

-OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION

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improve accountability of senior executives.

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TITLE II

-ACCOUNTABILITY OF SENIOR EXECUTIVES, SUPERVISORS, AND OTHER

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of employees of Department of Veterans Affairs.

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supervisory employees who commit prohibited personnel actions.

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WHISTLEBLOWER PROTECTION.
(a) In General.--Chapter 3 of title 38, United States Code, is
amended by adding at the end the following new section:
``Sec. 323. Office of Accountability and Whistleblower Protection
``(a) Establishment.--There is established in the Department an
office to be known as the `Office of Accountability and Whistleblower
Protection' (in this section referred to as the `Office').
``(b) Head of Office.--(1) The head of the Office shall be
responsible for the functions of the Office and shall be appointed by
the President pursuant to section 308(a) of this title.
``(2) The head of the Office shall be known as the `Assistant
Secretary for Accountability and Whistleblower Protection'.
``(3) The Assistant Secretary shall report directly to the
Secretary on all matters relating to the Office.
``(4) Notwithstanding section 308(b) of this title, the Secretary
may only assign to the Assistant Secretary responsibilities relating to
the functions of the Office set forth in subsection (c).
``(c) Functions.--(1) The functions of the Office are as follows:
``(A) Advising the Secretary on all matters of the Department
relating to accountability, including accountability of employees
of the Department, retaliation against whistleblowers, and such
matters as the Secretary considers similar and affect public trust
in the Department.
``(B) Issuing reports and providing recommendations related to
the duties described in subparagraph (A).
``(C) Receiving whistleblower disclosures.
``(D) Referring whistleblower disclosures received under
subparagraph (C) for investigation to the Office of the Medical
Inspector, the Office of Inspector General, or other investigative
entity, as appropriate, if the Assistant Secretary has reason to
believe the whistleblower disclosure is evidence of a violation of
a provision of law, mismanagement, gross waste of funds, abuse of
authority, or a substantial and specific danger to public health or
safety.
``(E) Receiving and referring disclosures from the Special
Counsel for investigation to the Medical Inspector of the
Department, the Inspector General of the Department, or such other
person with investigatory authority, as the Assistant Secretary
considers appropriate.
``(F) Recording, tracking, reviewing, and confirming
implementation of recommendations from audits and investigations
carried out by the Inspector General of the Department, the Medical
Inspector of the Department, the Special Counsel, and the
Comptroller General of the United States, including the imposition
of disciplinary actions and other corrective actions contained in
such recommendations.
``(G) Analyzing data from the Office and the Office of
Inspector General telephone hotlines, other whistleblower
disclosures, disaggregated by facility and area of health care if
appropriate, and relevant audits and investigations to identify
trends and issue reports to the Secretary based on analysis
conducted under this subparagraph.
``(H) Receiving, reviewing, and investigating allegations of
misconduct, retaliation, or poor performance involving--
``(i) an individual in a senior executive position (as
defined in section 713(d) of this title) in the Department;
``(ii) an individual employed in a confidential, policy-
making, policy-determining, or policy-advocating position in
the Department; or
``(iii) a supervisory employee, if the allegation involves
retaliation against an employee for making a whistleblower
disclosure.
``(I) Making such recommendations to the Secretary for
disciplinary action as the Assistant Secretary considers
appropriate after substantiating any allegation of misconduct or
poor performance pursuant to an investigation carried out as
described in subparagraph (F) or (H).
``(2) In carrying out the functions of the Office, the Assistant
Secretary shall ensure that the Office maintains a toll-free telephone
number and Internet website to receive anonymous whistleblower
disclosures.
``(3) In any case in which the Assistant Secretary receives a
whistleblower disclosure from an employee of the Department under
paragraph (1)(C), the Assistant Secretary may not disclose the identity
of the employee without the consent of the employee, except in
accordance with the provisions of section 552a of title 5, or as
required by any other applicable provision of Federal law.
``(d) Staff and Resources.--The Secretary shall ensure that the
Assistant Secretary has such staff, resources, and access to
information as may be necessary to carry out the functions of the
Office.
``(e) Relation to Office of General Counsel.--The Office shall not
be established as an element of the Office of the General Counsel and
the Assistant Secretary may not report to the General Counsel.
``(f) Reports.--(1)(A) Not later than June 30 of each calendar
year, beginning with June 30, 2017, the Assistant Secretary shall
submit to the Committee on Veterans' Affairs of the Senate and the
Committee on Veterans' Affairs of the House of Representatives a report
on the activities of the Office during the calendar year in which the
report is submitted.
``(B) Each report submitted under subparagraph (A) shall include,
for the period covered by the report, the following:
``(i) A full and substantive analysis of the activities of the
Office, including such statistical information as the Assistant
Secretary considers appropriate.
``(ii) Identification of any issues reported to the Secretary
under subsection (c)(1)(G), including such data as the Assistant
Secretary considers relevant to such issues and any trends the
Assistant Secretary may have identified with respect to such
issues.
``(iii) Identification of such concerns as the Assistant
Secretary may have regarding the size, staffing, and resources of
the Office and such recommendations as the Assistant Secretary may
have for legislative or administrative action to address such
concerns.
``(iv) Such recommendations as the Assistant Secretary may have
for legislative or administrative action to improve--
``(I) the process by which concerns are reported to the
Office; and
``(II) the protection of whistleblowers within the
Department.
``(v) Such other matters as the Assistant Secretary considers
appropriate regarding the functions of the Office or other matters
relating to the Office.
``(2) If the Secretary receives a recommendation for disciplinary
action under subsection (c)(1)(I) and does not take or initiate the
recommended disciplinary action before the date that is 60 days after
the date on which the Secretary received the recommendation, the
Secretary shall submit to the Committee on Veterans' Affairs of the
Senate and the Committee on Veterans' Affairs of the House of
Representatives a detailed justification for not taking or initiating
such disciplinary action.
``(g) Definitions.--In this section:
``(1) The term `supervisory employee' means an employee of the
Department who is a supervisor as defined in section 7103(a) of
title 5.
``(2) The term `whistleblower' means one who makes a
whistleblower disclosure.
``(3) The term `whistleblower disclosure' means any disclosure
of information by an employee of the Department or individual
applying to become an employee of the Department which the employee
or individual reasonably believes evidences--
``(A) a violation of a law, rule, or regulation; or
``(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.''.
(b) Conforming Amendment.--Section 308(b) of such title is amended
by adding at the end the following new paragraph:
``(12) The functions set forth in section 323(c) of this
title.''.
(c) Clerical Amendment.--The table of sections at the beginning of
chapter 3 of such title is amended by adding at the end the following
new item:
``323. Office of Accountability and Whistleblower Protection.''.

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AFFAIRS.
(a) In General.--Subchapter II of chapter 7 of title 38, United
States Code, is amended by--
(1) striking sections 731, 732, 734, 735, and 736;
(2) by redesignating section 733 as section 731; and
(3) by adding at the end the following new sections:
``Sec. 732. Protection of whistleblowers as criteria in evaluation of
supervisors
``(a) Development and Use of Criteria Required.--The Secretary, in
consultation with the Assistant Secretary of Accountability and
Whistleblower Protection, shall develop criteria that--
``(1) the Secretary shall use as a critical element in any
evaluation of the performance of a supervisory employee; and
``(2) promotes the protection of whistleblowers.
``(b) Principles for Protection of Whistleblowers.--The criteria
required by subsection (a) shall include principles for the protection
of whistleblowers, such as the degree to which supervisory employees
respond constructively when employees of the Department report
concerns, take responsible action to resolve such concerns, and foster
an environment in which employees of the Department feel comfortable
reporting concerns to supervisory employees or to the appropriate
authorities.
``(c) Supervisory Employee and Whistleblower Defined.--In this
section, the terms `supervisory employee' and `whistleblower' have the
meanings given such terms in section 323 of this title.
``Sec. 733. Training regarding whistleblower disclosures
``(a) Training.--Not less frequently than once every two years, 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 provide to each employee of the Department
training regarding whistleblower disclosures, including--
``(1) an explanation of each method established by law in which
an employee may file a whistleblower disclosure;
``(2) the right of the employee to petition Congress regarding
a whistleblower disclosure in accordance with section 7211 of title
5;
``(3) an explanation that the employee may not be prosecuted or
reprised against for disclosing information to Congress, the
Inspector General, or another investigatory agency in instances
where such disclosure is permitted by law, including under sections
5701, 5705, and 7732 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);
``(4) 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
``(5) the right of contractors to be protected from reprisal
for the disclosure of certain information under section 4705 or
4712 of title 41.
``(b) Manner Training Is Provided.--The Secretary shall ensure, to
the maximum extent practicable, that training provided under subsection
(a) is provided in person.
``(c) Certification.--Not less frequently than once every two
years, the Secretary shall provide training on merit system protection
in a manner that the Special Counsel certifies as being satisfactory.
``(d) Publication.--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 make a whistleblower
disclosure, including the information described in paragraphs (1)
through (5) of subsection (a).
``(e) Whistleblower Disclosure Defined.--In this section, the term
`whistleblower disclosure' has the meaning given such term in section
323 of this title.''.
(b) Clerical Amendments.--The table of sections at the beginning of
such chapter is amended--
(1) by striking the items relating to sections 731 through 736;
and
(2) by adding at the end the following new items:
``731. Adverse actions against supervisory employees who commit
prohibited personnel actions relating to whistleblower
complaints.
``732. Protection of whistleblowers as criteria in evaluation of
supervisors.
``733. Training regarding whistleblower disclosures.''.
(c) Conforming Amendments.--Section 731 of such title, as
redesignated by subsection (a)(2), is amended--
(1) in subsection (c)--
(A) in paragraph (1)--
(i) by striking subparagraphs (A) and (B) and inserting
the following:
``(A) making a whistleblower disclosure to the Assistant
Secretary for Accountability and Whistleblower Protection, the
Inspector General of the Department, the Special Counsel, or
Congress;''; and
(ii) by redesignating subparagraphs (C) through (F) as
subparagraphs (B) through (E), respectively; and
(iii) in subparagraph (B), as redesignated by clause
(ii), by striking ``complaint in accordance with section
732 or with'' and inserting ``disclosure made to the
Assistant Secretary for Accountability and Whistleblower
Protection,''; and
(B) in paragraph (2), by striking ``through (F)'' and
inserting ``through (E)''; and
(2) by adding at the end the following new subsection:
``(d) Whistleblower Disclosure Defined.--In this section, the term
`whistleblower disclosure' has the meaning given such term in section
323(g) of this title.''.

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DEPARTMENT OF VETERANS AFFAIRS.
(a) Report Required.--Not later than 540 days after the date of the
enactment of this Act, the Assistant Secretary for Accountability and
Whistleblower Protection shall submit to the Secretary of Veterans
Affairs, the Committee on Veterans' Affairs of the Senate, and the
Committee on Veterans' Affairs of the House of Representatives a report
on methods used to investigate employees of the Department of Veterans
Affairs and whether such methods are used to retaliate against
whistleblowers.
(b) Contents.--The report required by subsection (a) shall include
the following:
(1) An assessment of the use of administrative investigation
boards, peer review, searches of medical records, and other methods
for investigating employees of the Department.
(2) A determination of whether and to what degree the methods
described in paragraph (1) are being used to retaliate against
whistleblowers.
(3) Recommendations for legislative or administrative action to
implement safeguards to prevent the retaliation described in
paragraph (2).
(c) Whistleblower Defined.--In this section, the term
``whistleblower'' has the meaning given such term in section 323 of
title 38, United States Code, as added by section 101.
EMPLOYEES

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IMPROVE ACCOUNTABILITY OF SENIOR EXECUTIVES.
(a) In General.--Section 713 of title 38, United States Code, is
amended to read as follows:
``Sec. 713. Senior executives: removal, demotion, or suspension based
on performance or misconduct
``(a) Authority.--(1) The Secretary may, as provided in this
section, reprimand or suspend, involuntarily reassign, demote, or
remove a covered individual from a senior executive position at the
Department if the Secretary determines that the misconduct or
performance of the covered individual warrants such action.
``(2) If the Secretary so removes such an individual, the Secretary
may remove the individual from the civil service (as defined in section
2101 of title 5).
``(b) Rights and Procedures.--(1) A covered individual who is the
subject of an action under subsection (a) is entitled to--
``(A) advance notice of the action and a file containing all
evidence in support of the proposed action;
``(B) be represented by an attorney or other representative of
the covered individual's choice; and
``(C) grieve the action in accordance with an internal
grievance process that the Secretary, in consultation with the
Assistant Secretary for Accountability and Whistleblower
Protection, shall establish for purposes of this subsection.
``(2)(A) The aggregate period for notice, response, and decision on
an action under subsection (a) may not exceed 15 business days.
``(B) The period for the response of a covered individual to a
notice under paragraph (1)(A) of an action under subsection (a) shall
be 7 business days.
``(C) A decision under this paragraph on an action under subsection
(a) shall be issued not later than 15 business days after notice of the
action is provided to the covered individual under paragraph (1)(A).
The decision shall be in writing, and shall include the specific
reasons therefor.
``(3) The Secretary shall ensure that the grievance process
established under paragraph (1)(C) takes fewer than 21 days.
``(4) A decision under paragraph (2) that is not grieved, and a
grievance decision under paragraph (3), shall be final and conclusive.
``(5) A covered individual adversely affected by a decision under
paragraph (2) that is not grieved, or by a grievance decision under
paragraph (3), may obtain judicial review of such decision.
``(6) In any case in which judicial review is sought under
paragraph (5), the court shall review the record and may set aside any
Department action found to be--
``(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with a provision of law;
``(B) obtained without procedures required by a provision of
law having been followed; or
``(C) unsupported by substantial evidence.
``(c) Relation to Other Provisions of Law.--Section 3592(b)(1) of
title 5 and the procedures under section 7543(b) of such title do not
apply to an action under subsection (a).
``(d) Definitions.--In this section:
``(1) The term `covered individual' means--
``(A) a career appointee (as that term is defined in
section 3132(a)(4) of title 5); or
``(B) any individual who occupies an administrative or
executive position and who was appointed under section 7306(a),
section 7401(1), or section 7401(4) of this title.
``(2) The term `misconduct' includes neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.
``(3) The term `senior executive position' means--
``(A) with respect to a career appointee (as that term is
defined in section 3132(a) of title 5), a Senior Executive
Service position (as such term is defined in such section); and
``(B) with respect to a covered individual appointed under
section 7306(a) or section 7401(1) of this title, an
administrative or executive position.''.
(b) Conforming Amendment.--Section 7461(c)(1) of such title is
amended by inserting ``employees in senior executive positions (as
defined in section 713(d) of this title) and'' before ``interns''.
(c) Clerical Amendment.--The table of sections at the beginning of
chapter 7 of such title is amended by striking the item relating to
section 713 and inserting the following new item:
``713. Senior executives: removal, demotion, or suspension based on
performance or misconduct.''.

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IMPROVE ACCOUNTABILITY OF EMPLOYEES.
(a) In General.--Subchapter I of chapter 7 of title 38, United
States Code, is amended by inserting after section 713 the following
new section:
``Sec. 714. Employees: removal, demotion, or suspension based on
performance or misconduct
``(a) In General.--(1) The Secretary may remove, demote, or suspend
a covered individual who is an employee of the Department if the
Secretary determines the performance or misconduct of the covered
individual warrants such removal, demotion, or suspension.
``(2) If the Secretary so removes, demotes, or suspends such a
covered individual, the Secretary may--
``(A) remove the covered individual from the civil service (as
defined in section 2101 of title 5);
``(B) demote the covered individual by means of a reduction in
grade for which the covered individual is qualified, that the
Secretary determines is appropriate, and that reduces the annual
rate of pay of the covered individual; or
``(C) suspend the covered individual.
``(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any
other provision of law, any covered individual subject to a demotion
under subsection (a)(2) shall, beginning on the date of such demotion,
receive the annual rate of pay applicable to such grade.
``(2)(A) A covered individual so demoted may not be placed on
administrative leave during the period during which an appeal (if any)
under this section is ongoing, and may only receive pay if the covered
individual reports for duty or is approved to use accrued unused
annual, sick, family medical, military, or court leave.
``(B) If a covered individual so demoted does not report for duty
or receive approval to use accrued unused leave, such covered
individual shall not receive pay or other benefits pursuant to
subsection (d)(5).
``(c) Procedure.--(1)(A) The aggregate period for notice, response,
and final decision in a removal, demotion, or suspension under this
section may not exceed 15 business days.
``(B) The period for the response of a covered individual to a
notice of a proposed removal, demotion, or suspension under this
section shall be 7 business days.
``(C) Paragraph (3) of subsection (b) of section 7513 of title 5
shall apply with respect to a removal, demotion, or suspension under
this section.
``(D) The procedures in this subsection shall supersede any
collective bargaining agreement to the extent that such agreement is
inconsistent with such procedures.
``(2) The Secretary shall issue a final decision with respect to a
removal, demotion, or suspension under this section not later than 15
business days after the Secretary provides notice, including a file
containing all the evidence in support of the proposed action, to the
covered individual of the removal, demotion, or suspension. The
decision shall be in writing and shall include the specific reasons
therefor.
``(3) The procedures under chapter 43 of title 5 shall not apply to
a removal, demotion, or suspension under this section.
``(4)(A) Subject to subparagraph (B) and subsection (d), any
removal or demotion under this section, and any suspension of more than
14 days under this section, may be appealed to the Merit Systems
Protection Board, which shall refer such appeal to an administrative
judge pursuant to section 7701(b)(1) of title 5.
``(B) An appeal under subparagraph (A) of a removal, demotion, or
suspension may only be made if such appeal is made not later than 10
business days after the date of such removal, demotion, or suspension.
``(d) Expedited Review.--(1) Upon receipt of an appeal under
subsection (c)(4)(A), the administrative judge shall expedite any such
appeal under section 7701(b)(1) of title 5 and, in any such case, shall
issue a final and complete decision not later than 180 days after the
date of the appeal.
``(2)(A) Notwithstanding section 7701(c)(1)(B) of title 5, the
administrative judge shall uphold the decision of the Secretary to
remove, demote, or suspend an employee under subsection (a) if the
decision is supported by substantial evidence.
``(B) Notwithstanding title 5 or any other provision of law, if the
decision of the Secretary is supported by substantial evidence, the
administrative judge shall not mitigate the penalty prescribed by the
Secretary.
``(3)(A) The decision of the administrative judge under paragraph
(1) may be appealed to the Merit Systems Protection Board.
``(B) Notwithstanding section 7701(c)(1)(B) of title 5, the Merit
Systems Protection Board shall uphold the decision of the Secretary to
remove, demote, or suspend an employee under subsection (a) if the
decision is supported by substantial evidence.
``(C) Notwithstanding title 5 or any other provision of law, if the
decision of the Secretary is supported by substantial evidence, the
Merit Systems Protection Board shall not mitigate the penalty
prescribed by the Secretary.
``(4) In any case in which the administrative judge cannot issue a
decision in accordance with the 180-day requirement under paragraph
(1), the Merit Systems Protection Board shall, not later than 14
business days after the expiration of the 180-day period, submit to the
Committee on Veterans' Affairs of the Senate and the Committee on
Veterans' Affairs of the House of Representatives a report that
explains the reasons why a decision was not issued in accordance with
such requirement.
``(5)(A) A decision of the Merit Systems Protection Board under
paragraph (3) may be appealed to the United States Court of Appeals for
the Federal Circuit pursuant to section 7703 of title 5 or to any court
of appeals of competent jurisdiction pursuant to subsection (b)(1)(B)
of such section.
``(B) Any decision by such Court shall be in compliance with
section 7462(f)(2) of this title.
``(6) The Merit Systems Protection Board may not stay any removal
or demotion under this section, except as provided in section 1214(b)
of title 5.
``(7) During the period beginning on the date on which a covered
individual appeals a removal from the civil service under subsection
(c) and ending on the date that the United States Court of Appeals for
the Federal Circuit issues a final decision on such appeal, such
covered individual may not receive any pay, awards, bonuses,
incentives, allowances, differentials, student loan repayments, special
payments, or benefits related to the employment of the individual by
the Department.
``(8) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board such information and
assistance as may be necessary to ensure an appeal under this
subsection is expedited.
``(9) If an employee prevails on appeal under this section, the
employee shall be entitled to backpay (as provided in section 5596 of
title 5).
``(10) If an employee who is subject to a collective bargaining
agreement chooses to grieve an action taken under this section through
a grievance procedure provided under the collective bargaining
agreement, the timelines and procedures set forth in subsection (c) and
this subsection shall apply.
``(e) Whistleblower Protection.--(1) In the case of a covered
individual seeking corrective action (or on behalf of whom corrective
action is sought) from the Office of Special Counsel based on an
alleged prohibited personnel practice described in section 2302(b) of
title 5, the Secretary may not remove, demote, or suspend such covered
individual under subsection (a) without the approval of the Special
Counsel under section 1214(f) of title 5.
``(2) In the case of a covered individual who has made a
whistleblower disclosure to the Assistant Secretary for Accountability
and Whistleblower Protection, the Secretary may not remove, demote, or
suspend such covered individual under subsection (a) until--
``(A) in the case in which the Assistant Secretary determines
to refer the whistleblower disclosure under section 323(c)(1)(D) of
this title to an office or other investigative entity, a final
decision with respect to the whistleblower disclosure has been made
by such office or other investigative entity; or
``(B) in the case in which the Assistant Secretary determines
not to the refer the whistleblower disclosure under such section,
the Assistant Secretary makes such determination.
``(f) Termination of Investigations by Office of Special Counsel.--
(1) Notwithstanding any other provision of law, the Special Counsel
(established by section 1211 of title 5) may terminate an investigation
of a prohibited personnel practice alleged by an employee or former
employee of the Department after the Special Counsel provides to the
employee or former employee a written statement of the reasons for the
termination of the investigation.
``(2) Such statement may not be admissible as evidence in any
judicial or administrative proceeding without the consent of such
employee or former employee.
``(g) Vacancies.--In the case of a covered individual who is
removed or demoted under subsection (a), to the maximum extent
feasible, the Secretary shall fill the vacancy arising as a result of
such removal or demotion.
``(h) Definitions.--In this section:
``(1) The term `covered individual' means an individual
occupying a position at the Department, but does not include--
``(A) an individual occupying a senior executive position
(as defined in section 713(d) of this title);
``(B) an individual appointed pursuant to sections 7306,
7401(1), 7401(4), or 7405 of this title;
``(C) an individual who has not completed a probationary or
trial period; or
``(D) a political appointee.
``(2) The term `suspend' means the placing of an employee, for
disciplinary reasons, in a temporary status without duties and pay
for a period in excess of 14 days.
``(3) The term `grade' has the meaning given such term in
section 7511(a) of title 5.
``(4) The term `misconduct' includes neglect of duty,
malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.
``(5) The term `political appointee' means an individual who
is--
``(A) employed in a position described under sections 5312
through 5316 of title 5 (relating to the Executive Schedule);
``(B) a limited term appointee, limited emergency
appointee, or noncareer appointee in the Senior Executive
Service, as defined under paragraphs (5), (6), and (7),
respectively, of section 3132(a) of title 5; or
``(C) employed in a position of a confidential or policy-
determining character under schedule C of subpart C of part 213
of title 5, Code of Federal Regulations, or successor
regulation.
``(6) The term `whistleblower disclosure' has the meaning given
such term in section 323(g) of this title.''.
(b) Clerical and Conforming Amendments.--
(1) Clerical.--The table of sections at the beginning of
chapter 7 of such title is amended by inserting after the item
relating to section 713 the following new item:
``714. Employees: removal, demotion, or suspension based on performance
or misconduct.''.
(2) Conforming.--Section 4303(f) of title 5, United States
Code, is amended--
(A) in paragraph (2), by striking ``or'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting ``, or''; and
(C) by adding at the end the following:
``(4) any removal or demotion under section 714 of title 38.''.

9a730041d0b16f7a5123f1304ef405a0aa39a2baf838521dfc1c355eae2bf677

EMPLOYEES CONVICTED OF CERTAIN CRIMES.
(a) Reduction of Benefits.--
(1) In general.--Subchapter I of chapter 7 of title 38, United
States Code, is amended by adding at the end the following new
section:
``Sec. 719. Reduction of benefits of employees convicted of certain
crimes
``(a) Reduction of Annuity for Removed Employee.--(1) The Secretary
shall order that the covered service of an employee of the Department
removed from a position for performance or misconduct under section
713, 714, or 7461 of this title or any other provision of law shall not
be taken into account for purposes of calculating an annuity with
respect to such individual under chapter 83 or chapter 84 of title 5,
if--
``(A) the Secretary determines that the individual is convicted
of a felony (and the conviction is final) that influenced the
individual's performance while employed in the position; and
``(B) before such order is made, the individual is afforded--
``(i) notice of the proposed order; and
``(ii) an opportunity to respond to the proposed order by
not later than ten business days following receipt of such
notice; and
``(C) the Secretary issues the order--
``(i) in the case of a proposed order to which an
individual responds under subparagraph (B)(ii), not later than
five business days after receiving the response of the
individual; or
``(ii) in the case of a proposed order to which an
individual does not respond, not later than 15 business days
after the Secretary provides notice to the individual under
subparagraph (B)(i).
``(2) Any individual with respect to whom an annuity is reduced
under this subsection may appeal the reduction to the Director of the
Office of Personnel Management pursuant to such regulations as the
Director may prescribe for purposes of this subsection.
``(b) Reduction of Annuity for Retired Employee.--(1) The Secretary
may order that the covered service of an individual who the Secretary
proposes to remove for performance or misconduct under section 713,
714, or 7461 of this title or any other provision of law but who leaves
employment at the Department prior to the issuance of a final decision
with respect to such action shall not be taken into account for
purposes of calculating an annuity with respect to such individual
under chapter 83 or chapter 84 of title 5, if--
``(A) the Secretary determines that individual is convicted of
a felony (and the conviction is final) that influenced the
individual's performance while employed in the position; and
``(B) before such order is made, the individual is afforded--
``(i) notice of the proposed order;
``(ii) opportunity to respond to the proposed order by not
later than ten business days following receipt of such notice;
and
``(C) the Secretary issues the order--
``(i) in the case of a proposed order to which an
individual responds under subparagraph (B)(ii), not later than
five business days after receiving the response of the
individual; or
``(ii) in the case of a proposed order to which an
individual does not respond, not later than 15 business days
after the Secretary provides notice to the individual under
subparagraph (B)(i).
``(2) Upon the issuance of an order by the Secretary under
paragraph (1), the individual shall have an opportunity to appeal the
order to the Director of the Office of Personnel Management before the
date that is seven business days after the date of such issuance.
``(3) The Director of the Office of Personnel Management shall make
a final decision with respect to an appeal under paragraph (2) within
30 business days of receiving the appeal.
``(c) Administrative Requirements.--Not later than 37 business days
after the Secretary issues a final order under subsection (a) or (b)
with respect to an individual, the Director of the Office of Personnel
Management shall recalculate the annuity of the individual.
``(d) Lump-Sum Annuity Credit.--Any individual with respect to whom
an annuity is reduced under subsection (a) or (b) shall be entitled to
be paid so much of such individual's lump-sum credit as is attributable
to the period of covered service.
``(e) Spouse or Children Exception.--(1) The Secretary, in
consultation with the Director of the Office of Personnel Management,
shall prescribe regulations that may provide for the payment to the
spouse or children of any individual referred to in subsection (a) or
(b) of any amounts which (but for this subsection) would otherwise have
been nonpayable by reason of such subsections.
``(2) Regulations prescribed under paragraph (1) shall be
consistent with the requirements of section 8332(o)(5) and 8411(l)(5)
of title 5, as the case may be.
``(f) Definitions.--In this section:
``(1) The term `covered service' means, with respect to an
individual subject to a removal for performance or misconduct under
section 719 or 7461 of this title or any other provision of law,
the period of service beginning on the date that the Secretary
determines under such applicable provision that the individual
engaged in activity that gave rise to such action and ending on the
date that the individual is removed from or leaves a position of
employment at the Department prior to the issuance of a final
decision with respect to such action.
``(2) The term `lump-sum credit' has the meaning given such
term in section 8331(8) or section 8401(19) of title 5, as the case
may be.
``(3) The term `service' has the meaning given such term in
section 8331(12) or section 8401(26) of title 5, as the case may
be.''.
(2) Clerical amendment.--The table of sections at the beginning
of chapter 7 of such title is amended by inserting after the item
relating to section 717 the following new item:
``719. Reduction of benefits of employees convicted of certain
crimes.''.
(b) Application.--Section 719 of title 38, United States Code, as
added by subsection (a)(1), shall apply to any action of removal of an
employee of the Department of Veterans Affairs under section 719 or
7461 of such title or any other provision of law, commencing on or
after the date of the enactment of this Act.

25ae5dd7337766b5ade26b6e63443ebf02dc3db0ce4e79ccb65bd021df58088b

OF DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Subchapter I of chapter 7 of title 38, United
States Code, as amended by section 203, is further amended by adding at
the end the following new section:
``Sec. 721. Recoupment of bonuses or awards paid to employees of
Department
``(a) In General.--Notwithstanding any other provision of law, the
Secretary may issue an order directing an employee of the Department to
repay the amount, or a portion of the amount, of any award or bonus
paid to the employee under title 5, including under chapters 45 or 53
of such title, or this title if--
``(1) the Secretary determines that the individual engaged in
misconduct or poor performance prior to payment of the award or
bonus, and that such award or bonus would not have been paid, in
whole or in part, had the misconduct or poor performance been known
prior to payment; and
``(2) before such repayment, the employee is afforded--
``(A) notice of the proposed order; and
``(B) an opportunity to respond to the proposed order by
not later than 10 business days after the receipt of such
notice; and
``(3) the Secretary issues the order--
``(A) in the case of a proposed order to which an
individual responds under paragraph (2)(B), not later than five
business days after receiving the response of the individual;
or
``(B) in the case of a proposed order to which an
individual does not respond, not later than 15 business days
after the Secretary provides notice to the individual under
paragraph (2)(A).
``(b) Appeal of Order of Secretary.--(1) Upon the issuance of an
order by the Secretary under subsection (a) with respect to an
individual, the individual shall have an opportunity to appeal the
order to the Director of the Office of Personnel Management before the
date that is seven business days after the date of such issuance.
``(2) The Director shall make a final decision with respect to an
appeal under paragraph (1) within 30 business days after receiving such
appeal.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter, as amended by section 203(a)(2), is further amended by
inserting after the item relating to section 719 the following new
item:
``721. Recoupment of bonuses or awards paid to employees of
Department.''.
(c) Effective Date.--Section 721 of title 38, United States Code,
as added by subsection (a), shall apply with respect to an award or
bonus paid by the Secretary of Veterans Affairs to an employee of the
Department of Veterans Affairs on or after the date of the enactment of
this Act.
(d) Construction.--Nothing in this Act or the amendments made by
this Act may be construed to modify the certification issued by the
Office of Personnel Management and the Office of Management and Budget
regarding the performance appraisal system of the Senior Executive
Service of the Department of Veterans Affairs.

3bb66e4fa39bfab6a5d136707a4f3c69999b553b5ba50d2dbdf890e960247dfc

BEHALF OF EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Subchapter I of chapter 7 of title 38, United
States Code, as amended by section 204, is further amended by adding at
the end the following new section:
``Sec. 723. Recoupment of relocation expenses paid on behalf of
employees of Department
``(a) In General.--Notwithstanding any other provision of law, the
Secretary may issue an order directing an employee of the Department to
repay the amount, or a portion of the amount, paid to or on behalf of
the employee under title 5 for relocation expenses, including any
expenses under section 5724 or 5724a of such title, or this title if--
``(1) the Secretary determines that relocation expenses were
paid following an act of fraud or malfeasance that influenced the
authorization of the relocation expenses;
``(2) before such repayment, the employee is afforded--
``(A) notice of the proposed order; and
``(B) an opportunity to respond to the proposed order not
later than ten business days following the receipt of such
notice; and
``(3) the Secretary issues the order--
``(A) in the case of a proposed order to which an
individual responds under paragraph (2)(B), not later than five
business days after receiving the response of the individual;
or
``(B) in the case of a proposed order to which an
individual does not respond, not later than 15 business days
after the Secretary provides notice to the individual under
paragraph (2)(A).
``(b) Appeal of Order of Secretary.--(1) Upon the issuance of an
order by the Secretary under subsection (a) with respect to an
individual, the individual shall have an opportunity to appeal the
order to the Director of the Office of Personnel Management before the
date that is seven business days after the date of such issuance.
``(2) The Director shall make a final decision with respect to an
appeal under paragraph (1) within 30 days after receiving such
appeal.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is further amended by inserting after the item relating to
section 721, as added by section 204(b), the following new item:
``723. Recoupment of relocation expenses paid on behalf of employees of
Department.''.
(c) Effective Date.--Section 723 of title 38, United States Code,
as added by subsection (a), shall apply with respect to an amount paid
by the Secretary of Veterans Affairs to or on behalf of an employee of
the Department of Veterans Affairs for relocation expenses on or after
the date of the enactment of this Act.

734d862e40e12661603a87677eb8329a23a4d8c4a34b856cdeec82dbb62bbf68

AGAINST SUPERVISORY EMPLOYEES WHO COMMIT PROHIBITED PERSONNEL
ACTIONS.
Section 731(a)(2)(B) of title 38, United States Code, as
redesignated by section 102(a)(2), is amended--
(1) in clause (i), by striking ``14 days'' and inserting ``10
days''; and
(2) in clause (ii), by striking ``14-day period'' and inserting
``10-day period''.

31f383dfcd33b7eeea55fc8cc0b21356ecd1e2980c5c9cbf396889ff545577ad

VISN DIRECTORS.
(a) In General.--Section 7401 of title 38, United States Code, is
amended by adding at the end the following new paragraph:
``(4) Directors of medical centers and directors of Veterans
Integrated Service Networks with demonstrated ability in the
medical profession, in health care administration, or in health
care fiscal management.''.
(b) Conforming Amendments.--Section 7404(a)(1) of such title is
amended--
(1) by inserting ``(A)'' before ``The annual''; and
(2) in subparagraph (A), as designated by paragraph (1)--
(A) by inserting ``and 7401(4)'' after ``7306''; and
(B) by adding at the end the following new subparagraph:
``(B) Section 5377 of title 5 shall apply to a position under
section 7401(4) of this title as if such position were included in the
definition of `position' in section 5377(a) of title 5.''.

ee5a214662fd85edafba723385fff91c31c4fc56793dbdb1f6957ea086c2da2f

TO CERTAIN EMPLOYEES.
(a) Physicians, Dentists, Podiatrists, Chiropractors, Optometrists,
Registered Nurses, Physician Assistants, and Expanded-function Dental
Auxiliaries.--Paragraph (2) of section 7461(b) of title 38, United
States Code, is amended to read as follows:
``(2) In any case other than a case described in paragraph (1) that
involves or includes a question of professional conduct or competence
in which a major adverse action was not taken, such an appeal shall be
made through Department grievance procedures under section 7463 of this
title.''.
(b) Major Adverse Actions Involving Professional Conduct or
Competence.--Section 7462(b) of such title is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by inserting
``, within the aggregate time period specified in paragraph
(5)(A),'' after ``is entitled'';
(B) in subparagraph (A)--
(i) by striking ``At least 30 days advance written
notice'' and inserting ``Advance written notice'';
(ii) by striking ``and a statement'' and inserting ``a
statement''; and
(iii) by inserting ``and a file containing all the
evidence in support of each charge,'' after ``with respect
to each charge,''; and
(C) in subparagraph (B), by striking ``A reasonable time,
but not less than seven days'' and inserting ``The opportunity,
within the time period provided for in paragraph (4)(A)'';
(2) by striking paragraph (3) and inserting the following new
paragraph (3):
``(3) After considering the employee's answer, if any, and within
the time period provided for in paragraph (5)(B), the deciding official
shall render a decision on the charges. The decision shall be in
writing and shall include the specific reasons therefor.'';
(3) in paragraph (4)--
(A) by striking subparagraph (A) and inserting the
following new subparagraph (A):
``(A) The period for the response of an employee under paragraph
(1)(B) to advance written under paragraph (1)(A) shall be seven
business days.''; and
(B) in subparagraph (B), by striking ``30 days'' and
inserting ``seven business days''; and
(4) by adding at the end the following new paragraphs:
``(5)(A) The aggregate period for the resolution of charges against
an employee under this subsection may not exceed 15 business days.
``(B) The deciding official shall render a decision under paragraph
(3) on charges under this subsection not later than 15 business days
after the Under Secretary provides notice on the charges for purposes
of paragraph (1)(A).
``(6) The procedures in this subsection shall supersede any
collective bargaining agreement to the extent that such agreement is
inconsistent with such procedures.''.
(c) Other Adverse Actions.--Section 7463(c) of such title is
amended--
(1) in paragraph (1), by striking ``the same notice and
opportunity to answer with respect to those charges as provided in
subparagraphs (A) and (B) of section 7462(b)(1) of this title'' and
inserting ``notice and an opportunity to answer with respect to
those charges in accordance with subparagraphs (A) and (B) of
section 7462(b)(1) of this title, but within the time periods
specified in paragraph (3)'';
(2) in paragraph (2)--
(A) in the matter preceding subparagraph (A), by inserting
``, within the aggregate time period specified in paragraph
(3)(A),'' after ``is entitled'';
(B) in subparagraph (A), by striking ``an advance written
notice'' and inserting ``written notice''; and
(C) in subparagraph (B), by striking ``a reasonable time''
and inserting ``time to answer''; and
(3) by adding at the end the following new paragraph (3):
``(3)(A) The aggregate period for the resolution of charges against
an employee under paragraph (1) or (2) may not exceed 15 business days.
``(B) The period for the response of an employee under paragraph
(1) or (2)(B) to written notice of charges under paragraph (1) or
(2)(A), as applicable, shall be seven business days.
``(C) The deciding official shall render a decision on charges
under paragraph (1) or (2) not later than 15 business days after notice
is provided on the charges for purposes of paragraph (1) or (2)(A), as
applicable.''.

ac9ede675d745f4f96accbd1d36fb787c0ac6c0487ff3f090be8e0c3a7757700

(a) In General.--The Secretary of Veterans Affairs shall provide to
each employee of the Department of Veterans Affairs who is employed as
a supervisor periodic training on the following:
(1) The rights of whistleblowers and how to address a report by
an employee of a hostile work environment, reprisal, or harassment.
(2) How to effectively motivate, manage, and reward the
employees who report to the supervisor.
(3) How to effectively manage employees who are performing at
an unacceptable level and access assistance from the human
resources office of the Department and the Office of the General
Counsel of the Department with respect to those employees.
(b) Definitions.--In this section:
(1) Supervisor.--The term ``supervisor'' has the meaning given
such term in section 7103(a) of title 5, United States Code.
(2) Whistleblower.--The term ``whistleblower'' has the meaning
given such term in section 323(g) of title 38, United States Code,
as added by section 101.

df90c91a9629e6f38c720fd2864db9f22c4ac5dfbdfa24d1174009f124348273

DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Not later than two years after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall--
(1) measure and assess the effect of the enactment of this
title on the morale, engagement, hiring, promotion, retention,
discipline, and productivity of individuals in senior executive
positions at the Department of Veterans Affairs; and
(2) submit to the Committee on Veterans' Affairs of the Senate
and the Committee on Veterans' Affairs of the House of
Representatives a report on the findings of the Secretary with
respect to the measurement and assessment carried out under
paragraph (1).
(b) Elements.--The assessment required by subsection (a)(1) shall
include the following:
(1) With respect to engagement, trends in morale of individuals
in senior executive positions and individuals aspiring to senior
executive positions.
(2) With respect to promotions--
(A) whether the Department is experiencing an increase or
decrease in the number of employees participating in leadership
development and candidate development programs with the
intention of becoming candidates for senior executive
positions; and
(B) trends in applications to senior executive positions
within the Department.
(3) With respect to retention--
(A) trends in retirement rates of individuals in senior
executive positions at the Department;
(B) trends in quit rates of individuals in senior executive
positions at the Department;
(C) rates of transfer of--
(i) individuals from other Federal agencies into senior
executive positions at the Department; and
(ii) individuals from senior executive positions at the
Department to other Federal agencies; and
(D) trends in total loss rates by job function.
(4) With respect to disciplinary processes--
(A) regarding individuals in senior executive positions at
the Department who are the subject of disciplinary action--
(i) the length of the disciplinary process in days for
such individuals both before the date of the enactment of
this Act and under the provisions of this Act described in
subsection (a)(1); and
(ii) the extent to which appeals by such individuals
are upheld under such provisions as compared to before the
date of the enactment of this Act;
(B) the components or offices of the Department which
experience the greatest number of proposed adverse actions
against individuals in senior executive positions and
components and offices which experience the least relative to
the size of the components or offices' total number of senior
executive positions;
(C) the tenure of individuals in senior executive positions
who are the subject of disciplinary action;
(D) whether the individuals in senior executive positions
who are the subject of disciplinary action have previously been
disciplined; and
(E) the number of instances of disciplinary action taken by
the Secretary against individuals in senior executive positions
at the Department as compared to governmentwide discipline
against individuals in Senior Executive Service positions (as
defined in section 3132(a) of title 5, United States Code) as a
percentage of the total number of individuals in senior
executive positions at the Department and Senior Executive
Service positions (as so defined).
(5) With respect to hiring--
(A) the degree to which the skills of newly hired
individuals in senior executive positions at the Department are
appropriate with respect to the needs of the Department;
(B) the types of senior executive positions at the
Department most commonly filled under the authorities in the
provisions described in subsection (a)(1);
(C) the number of senior executive positions at the
Department filled by hires outside of the Department compared
to hires from within the Department;
(D) the length of time to fill a senior executive position
at the Department and for a new hire to begin working in a new
senior executive position;
(E) the mission-critical deficiencies filled by newly hired
individuals in senior executive positions and the connection
between mission-critical deficiencies filled under the
provisions described in subsection (a) and annual performance
of the Department;
(F) the satisfaction of applicants for senior executive
positions at the Department with the hiring process, including
the clarity of job announcements, reasons for withdrawal of
applications, communication regarding status of applications,
and timeliness of hiring decision; and
(G) the satisfaction of newly hired individuals in senior
executive positions at the Department with the hiring process
and the process of joining and becoming oriented with the
Department.
(c) Senior Executive Position Defined.--In this section, the term
``senior executive position'' has the meaning given such term in
section 713 of title 38, United States Code.

a29b4f2bdcc1d2ebeca660be83a241467b2b3bcd72e6ca9645b409258c3013b5

DISCIPLINARY PROCESS OUTCOMES AND EFFECTIVENESS.
(a) Measuring and Collecting.--
(1) In general.--The Secretary of Veterans Affairs shall
measure and collect information on the outcomes of disciplinary
actions carried out by the Department of Veterans Affairs during
the three-year period ending on the date of the enactment of this
Act and the effectiveness of such actions.
(2) Elements.--In measuring and collecting pursuant to
paragraph (1), the Secretary shall measure and collect information
regarding the following:
(A) The average time from the initiation of an adverse
action against an employee at the Department to the final
resolution of that action.
(B) The number of distinct steps and levels of review
within the Department involved in the disciplinary process and
the average length of time required to complete these steps.
(C) The rate of use of alternate disciplinary procedures
compared to traditional disciplinary procedures and the
frequency with which employees who are subject to alternative
disciplinary procedures commit additional offenses.
(D) The number of appeals from adverse actions filed
against employees of the Department, the number of appeals
upheld, and the reasons for which the appeals were upheld.
(E) The use of paid administrative leave during the
disciplinary process and the length of such leave.
(b) Report.--
(1) In general.--Not later than December 31, 2017, the
Secretary shall submit to the appropriate committees of Congress a
report on the disciplinary procedures and actions of the
Department.
(2) Contents.--The report submitted under paragraph (1) shall
include the following:
(A) The information collected under subsection (a).
(B) The findings of the Secretary with respect to the
measurement and collection carried out under subsection (a).
(C) An analysis of the disciplinary procedures and actions
of the Department.
(D) Suggestions for improving the disciplinary procedures
and actions of the Department.
(E) Such other matters as the Secretary considers
appropriate.
(3) Appropriate committees of congress.--In this subsection,
the term ``appropriate committees of Congress'' means--
(A) the Committee on Appropriations and the Committee on
Veterans' Affairs of the Senate; and
(B) the Committee on Appropriations and the Committee on
Veterans' Affairs of the House of Representatives.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

3c22a9e4037db8d8680a9eacfc72d003ad06030f43c3131bc735d328e446de0b

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 — S. 1094

Other Sections

TITLE I

TITLE II

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