38 U.S.C. § 323 — Office of Accountability and Whistleblower Protection
submitted 9 years ago by Pub. L. 115-41 to r/title-38-VETERANS-BENEFITS · 1,090 words · no verdicts yet
This law creates the VA's Office of Accountability and Whistleblower Protection. The office investigates misconduct, protects whistleblowers, and reports to Congress each year.
(a) Establishment. The Department* of Veterans Affairs gets a new office called the "Office of Accountability and Whistleblower Protection" (called the "Office" in this section).
(b) Head of Office.
(1) The head of the Office runs the Office's work. The President appoints this person under section 308(a) of this title.
(2) This person's title is "Assistant Secretary* for Accountability and Whistleblower Protection."
(3) The Assistant Secretary reports directly to the Secretary on everything about the Office.
(4) Even though section 308(b) normally lets the Secretary assign broader duties, here the Secretary can only give the Assistant Secretary duties tied to the Office's functions listed in subsection (c).
(c) Functions.
(1) The Office's jobs are:
(A) Advising the Secretary on accountability across the Department, including employee accountability, retaliation against whistleblowers, and similar matters that affect public trust.
(B) Issuing reports and recommendations about (A).
(C) Receiving whistleblower disclosures.
(D) Sending whistleblower disclosures received under (C) to the Office of the Medical Inspector, the Office of Inspector General, or another investigating body, if the Assistant Secretary believes the disclosure shows a legal violation, mismanagement, waste of funds, abuse of authority, or a real danger to public health or safety.
(E) Receiving disclosures from the Special Counsel and sending them to the Department's Medical Inspector, Inspector General, or another investigator the Assistant Secretary picks.
(F) Tracking and confirming that recommendations from audits and investigations by the Inspector General, Medical Inspector, Special Counsel, and Comptroller General actually get carried out, including discipline and other corrective steps.
(G) Studying data from the Office's and Inspector General's hotlines, other whistleblower disclosures (broken down by facility and health care area where appropriate), and relevant audits, to spot trends and report them to the Secretary.
(H) Receiving, reviewing, and investigating claims of misconduct, retaliation, or poor performance involving: (i) a senior executive (as defined in section 713(d)); (ii) someone in a confidential or policy-making role; or (iii) a supervisor, if the claim involves retaliation against an employee who made a whistleblower disclosure.
(I) Recommending discipline to the Secretary, once the Assistant Secretary substantiates a misconduct or poor-performance claim investigated under (F) or (H).
(2) The Assistant Secretary must keep a toll-free phone number and a website so people can send in anonymous whistleblower disclosures.
(3) If the Assistant Secretary gets a whistleblower disclosure from a Department employee under (1)(C), the Assistant Secretary cannot reveal that employee's identity without the employee's consent, except as allowed by the Privacy Act (5 U.S.C. § 552a) or another federal law that requires it.
(d) Staff and Resources. The Secretary must make sure the Assistant Secretary has enough staff, resources, and information access to do the Office's job.
(e) Relation to Office of General Counsel. The Office cannot be made part of the Office of General Counsel. The Assistant Secretary cannot report to the General Counsel.
(f) Reports.
(1)(A) By June 30 of each year, starting June 30, 2017, the Assistant Secretary must send the Senate and House Veterans' Affairs Committees a report on the Office's work that year.
(B) Each report must include: (i) a full look at the Office's activities, with statistics the Assistant Secretary thinks are useful; (ii) any issues reported to the Secretary under (c)(1)(G), with relevant data and trends; (iii) any concerns about the Office's size, staffing, or resources, plus recommendations to fix them; (iv) recommendations to improve how people report concerns to the Office and how whistleblowers are protected; and (v) any other matters the Assistant Secretary thinks are relevant.
(2) If the Secretary gets a discipline recommendation under (c)(1)(I) and does not act on it within 60 days, the Secretary must send Congress a detailed explanation of why not.
(g) Definitions.
(1) "Supervisory employee" means a Department employee who is a supervisor, as defined in 5 U.S.C. § 7103(a).
(2) "Whistleblower" means someone who makes a whistleblower disclosure.
(3) "Whistleblower disclosure" means information shared by a Department employee or job applicant that they reasonably believe shows: (A) a violation of a law, rule, or regulation; or (B) gross mismanagement, gross waste of funds, abuse of authority, or a real danger to public health or safety.
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”).
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.
The head of the Office shall be known as the “Assistant Secretary* for Accountability and Whistleblower Protection”.
The Assistant Secretary shall report directly to the Secretary on all matters relating to the Office.
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).
The functions of the Office are as follows:
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.
Issuing reports and providing recommendations related to the duties described in subparagraph (A).
Receiving whistleblower disclosures.
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.
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.
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.
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.
Receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving—
an individual in a senior executive position (as defined in section 713(d) of this title) in the Department;
an individual employed in a confidential, policy-making, policy-determining, or policy-advocating position in the Department; or
a supervisory employee, if the allegation involves retaliation against an employee for making a whistleblower disclosure.
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).
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.
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.
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.
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.
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.
Each report submitted under subparagraph (A) shall include, for the period covered by the report, the following:
A full and substantive analysis of the activities of the Office, including such statistical information as the Assistant Secretary considers appropriate.
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.
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.
Such recommendations as the Assistant Secretary may have for legislative or administrative action to improve—
the process by which concerns are reported to the Office; and
the protection of whistleblowers within the Department.
Such other matters as the Assistant Secretary considers appropriate regarding the functions of the Office or other matters relating to the Office.
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.
In this section:
The term “supervisory employee” means an employee of the Department who is a supervisor as defined in section 7103(a) of title 5.
The term “whistleblower” means one who makes a whistleblower disclosure.
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 violation of a law, rule, or regulation; or
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Source credit: (Added Pub. L. 115–41, title I, § 101(a), June 23, 2017, 131 Stat. 863.)
- 2017Enacted · Pub. L. 115-41 · 131 Stat. 863
A history note hasn’t been published yet. The record shows enactment by Pub. L. 115-41 on 2017-06-23.
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