Ensuring Protections for Intelligence Community Contractor Whistleblowers Act of 2017
This bill amends the National Security Act of 1947 to prohibit reprisals or discrimination against a intelligence community whistle-blower (including an employee, an applicant for employment, former employee, or contractor) who makes a protected disclosure to an agency Inspector General (IG) or certain other federal officials while carrying out a contract that contains a covered intelligence community element (i.e., the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office.) A "protected disclosure" means any lawful disclosure of information that an employee believes is evidence of a violation of federal law, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
A whistle-blower who has been subjected to a reprisal may submit a complaint to an agency IG, the Department of Defense IG, or the IG of the Intelligence Community. The appropriate IG must investigate the complaint and make a determination as to its validity.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2002 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 2002
To amend the National Security Act of 1947 to provide whistleblower
protections for employees of contractors of elements of the
intelligence community, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 24, 2017
Mrs. McCaskill introduced the following bill; which was read twice and
referred to the Select Committee on Intelligence
_______________________________________________________________________
A BILL
To amend the National Security Act of 1947 to provide whistleblower
protections for employees of contractors of elements of the
intelligence community, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ensuring Protections for
Intelligence Community Contractor Whistleblowers Act of 2017''.
SEC. 2. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS AND GRANTEES OF THE
INTELLIGENCE COMMUNITY.
(a) In General.--Title XI of the National Security Act of 1947 (50
U.S.C. 3231 et seq.) is amended by adding at the end the following:
``SEC. 1105. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS AND GRANTEES OF
THE INTELLIGENCE COMMUNITY.
``(a) Definitions.--In this section:
``(1) Agency.--The term `agency' means an executive
department or independent establishment (as such terms are
defined in sections 101 and 104 of title 5, United States Code)
that contains an intelligence community element, except for the
Federal Bureau of Investigation.
``(2) Applicant.--The term `applicant' means an individual
who is applying to be an employee of a contractor,
subcontractor, grantee or subgrantee.
``(3) Contract.--The term `contract' means a contract,
including a personal services contract, awarded by the head of
an agency.
``(4) Contractor.--The term `contractor' means an entity
awarded a contract.
``(5) Covered intelligence community element.--The term
`covered intelligence community element' means the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National Security
Agency, the Office of the Director of National Intelligence,
and the National Reconnaissance Office.
``(6) Employee.--The term `employee' means an individual
who is an officer or an employee of a contractor,
subcontractor, grantee, or subgrantee.
``(7) Former employee.--The term `former employee' means an
individual who previously worked as an employee for a
contractor, subcontractor, grantee, or subgrantee.
``(8) Grant.--The term `grant' means a grant awarded by the
head of an agency.
``(9) Grantee.--The term `grantee' means an entity that is
awarded a grant.
``(10) Inspector general.--Except as otherwise specifically
provided, the term `Inspector General' means the Inspector
General of the Intelligence Community appointed under section
103H or an Inspector General appointed under the Inspector
General Act of 1978 (5 U.S.C. App.) or section 17 of the
Central Intelligence Agency Act of 1949 (50 U.S.C. 3517).
``(11) Protected disclosure.--The term `protected
disclosure' means--
``(A) any lawful disclosure of information to an
individual listed under subsection (b)(2) by an
employee that the employee believes evidences--
``(i) a violation of any Federal law, rule,
or regulation; or
``(ii) gross mismanagement, including of a
contract or grant, a gross waste of funds, an
abuse of authority, or a substantial and
specific danger to public health or safety; and
``(B) if the actions do not result in the employee
unlawfully disclosing information specifically required
by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs, any lawful disclosure in conjunction with--
``(i) the exercise of any appeal,
complaint, or grievance right granted by any
law, rule, or regulation;
``(ii) testimony for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in clause (i); or
``(iii) cooperation with or disclosing
information to the Inspector General of an
agency, in accordance with applicable
provisions of law in connection with an audit,
inspection, or investigation conducted by the
Inspector General.
``(12) Personal services contractor.--The term `personal
services contractor' means an individual awarded a contract
with an agency.
``(13) Subcontractor.--The term `subcontractor' means an
entity that reaches an agreement with a contractor to fulfill
any element of a contract.
``(14) Subgrantee.--The term `subgrantee' means an entity
that reaches an agreement with a grantee to fulfill any element
of a grant.
``(b) Prohibition of Reprisals.--
``(1) In general.--An employee, applicant, former employee,
or personal services contractor carrying out a contract,
subcontract, grant, or subgrant for an agency that contains a
covered intelligence community element may not be discharged,
demoted, or otherwise discriminated against because the
employee, applicant, former employee, or personal service
contractor was perceived as making or about to make--
``(A) a protected disclosure; or
``(B) any lawful disclosure that complies with--
``(i) subsections (a)(1), (d), or (h) of
section 8H of the Inspector General Act of 1978
(5 U.S.C. App.);
``(ii) subparagraphs (A), (D), or (H) of
section 17(d)(5) of the Central Intelligence
Agency Act of 1949 (50 U.S.C. 3517(d)(5)); or
``(iii) subparagraphs (A), (D), or (I) of
section 103H(k)(5).
``(2) Individuals described.--The individuals described in
this paragraph are as follows:
``(A) An Inspector General.
``(B) An authorized official of the Department of
Justice or other Federal law enforcement agency.
``(C) A corporate management official or other
individual who has the authority to investigate,
discover, or address misconduct.
``(D) The Director of National Intelligence.
``(E) The head of the agency containing the covered
intelligence community element that awarded the
contract or grant.
``(c) Investigation of Complaints.--
``(1) Submission of complaint.--An employee, applicant,
former employee, or personal services contractor who believes
that he or she has been subjected to a reprisal prohibited by
subsection (b) may submit a complaint of such reprisal--
``(A) to the Inspector General of the agency that
awarded the contract or grant;
``(B) in the case of a complaint--
``(i) regarding a covered intelligence
community element in the Department of Defense,
to the Inspector General of the Department of
Defense; or
``(ii) submitted by an employee, applicant,
former employee, or personal services
contractor who is a National Intelligence
Program funded billet of a covered intelligence
community element in the Department of Defense,
to--
``(I) the Inspector General of the
Department of Defense; and
``(II)(aa) the head of the agency
containing the covered intelligence
community element that awarded the
contract or grant; or
``(bb) the Investigator General of
the Intelligence Community; or
``(C) to the Inspector General of the Intelligence
Community.
``(2) Determinations.--
``(A) In general.--Except as provided under
subparagraph (B), the Inspector General who receives a
complaint referred to in paragraph (1) shall--
``(i) make a determination that the
complaint--
``(I) is frivolous;
``(II) fails to allege a violation
of the prohibition in subsection (b);
or
``(III) has previously been
addressed in another Federal or State
judicial or administrative proceeding
initiated by the complainant; or
``(ii) shall investigate the complaint and,
upon completion of such investigation, submit a
report of the findings of the investigation to
the employee, applicant, former employee, or
personal services contractor who submitted the
complaint, and the contractor, subcontractor,
grantee, or subgrantee concerned, and the head
of the agency that awarded the contract or
grant not later than 180 days after receiving
the complaint.
``(B) Extension of time.--If the Inspector General
is unable to complete an investigation in time to
submit a determination within the 180-day period
specified in subparagraph (A)(ii) and the employee,
applicant, former employee, or personal services
contractor who submitted the complaint agrees to an
extension of time, the Inspector General shall submit a
report under subparagraph (A)(ii) within such
additional period of time, up to 180 days, as shall be
agreed upon between the Inspector General and the
individual submitting the complaint.
``(3) Burdens of proof.--Consistent with Executive orders
protecting information specifically required by Executive order
to be kept classified in the interest of national defense or
the conduct of foreign affairs, the legal burdens of proof
specified in section 1221(e) of title 5, United States Code,
shall, to the greatest extent possible, be controlling for the
purposes of any investigation conducted by an Inspector
General, or a decision by the head of an agency to determine
whether a reprisal prohibited by subsection (b) has occurred.
``(4) Submission to congress.--
``(A) In general.--If the employee, applicant,
former employee, or personal services contractor wishes
to submit to Congress their complaint submitted under
paragraph (1) or if such a complaint is an urgent
concern, the Inspector General who receives the
complaint shall, within 7 calendar days of receipt of
the complaint, forward such transmittal to the
congressional intelligence committees, together with
any comments the Inspector General considers
appropriate.
``(B) Submission by the employee.--If the Inspector
General does not forward the complaint as required by
subparagraph (A), the employee, applicant, former
employee, or personal services contractor (subject to
subparagraph (C)) may submit the complaint to Congress
by contacting either or both of the congressional
intelligence committees directly.
``(C) Conditions.--The employee, applicant, former
employee, or personal services contractor may contact
the congressional intelligence committees directly as
described in subparagraph (B) only if the employee,
applicant, former employee, or personal services
contractor--
``(i) before making such a contact,
furnishes to the head of the agency involved,
through an Inspector General, a statement of
the complaint and notice of the intent to
contact the intelligence committees directly;
and
``(ii) obtains and follows from the head of
the agency involved, through the Inspector
General, direction on how to contact the
congressional intelligence committees in
accordance with appropriate security practices.
``(D) Official capacity.--A member or employee of
one of the congressional intelligence committees who
receives a complaint under this paragraph does so in
that member or employee's official capacity as a member
or employee of that committee.
``(E) Urgent concern defined.--In this paragraph,
the term `urgent concern' has the meaning given that
term in section 8H of the Inspector General Act of 1978
(5 U.S.C. App).
``(d) Remedy and Enforcement Authority.--
``(1) In general.--Not later than 30 days after receiving
an Inspector General report pursuant to subsection
(c)(2)(A)(ii), the head of the agency concerned shall determine
whether there is sufficient basis to conclude that the
employee, applicant, former employee, or personal services
contractor submitting the complaint was subject to a reprisal
prohibited by subsection (b) and shall--
``(A) issue an order denying relief; or
``(B) order the agency concerned and the
contractor, subcontractor, grantee, or subgrantee--
``(i) to take affirmative action to abate
the reprisal;
``(ii) to reinstate the employee,
applicant, former employee, or personal
services contractor to the position that the
employee, applicant, former employee, or
personal services contractor held before the
reprisal, together with compensatory damages
(including back pay), employment benefits, and
other terms and conditions of employment that
would apply to the employee, applicant, former
employee, or personal services contractor in
that position if the reprisal had not been
taken; or
``(C) to pay the employee, applicant, former
employee, or personal services contractor an amount
equal to the aggregate amount of all costs and expenses
(including attorneys' fees and expert witnesses' fees)
that were reasonably incurred by the employee,
applicant, former employee, or personal services
contractor for, or in connection with, bringing the
complaint regarding the reprisal, as determined by the
head of the agency.
``(e) Notification.--The head of each agency containing a covered
intelligence community element shall--
``(1) inform each contractor, subcontractor, grantee, and
subgrantee of such agency, in writing, of the remedies provided
by this section; and
``(2) ensure that each contractor, subcontractor, grantee,
and subgrantee of such agency inform their employees and
personal services contractors, in writing, of the remedies
provided under this section.
``(f) No Private Cause of Action.--Nothing in this section shall be
construed to permit, authorize, or require a private cause of action to
challenge the merits of a determination by an Inspector General under
this section.
``(g) Prohibition on Waiver.--The remedies provided for in this
section may not be waived by any agreement, policy, form, or condition
of employment.''.
(b) Table of Contents Amendment.--The table of contents in the
first section of the National Security Act of 1947 is amended by adding
at the end the following:
``Sec. 1105. Whistleblower protections for contractors and grantees of
the intelligence community.''.
<all>
Introduced in Senate
Read twice and referred to the Select Committee on Intelligence.
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