H.R. 1688 — Hatch Act Enforcement Transparency and Accountability Act

This section adds definitions to 5 U.S.C. subchapter II of chapter 12 (Merit Systems Protection Board provisions) by inserting new section 1219a, defining (1) "career employee" as an employee (per 5 U.S.C. §7322) who is not a noncareer employee; (2) "covered allegation" as an allegation of political activity prohibited under 5 U.S.C. chapter 73, subchapter III; and (3) "noncareer employee" as certain executive branch employees, including presidential appointees (with or without Senate confirmation, excluding uniformed service members and Foreign Service members serving under career appointments per 22 U.S.C. §3941), noncareer Senior Executive Service-type appointees (e.g., Transportation Security Executive Service), and others designated under 5 U.S.C. §7511(b)(2). This section also makes a conforming amendment to the table of sections for that subchapter.

This section requires the Special Counsel to submit semiannual reports—not later than 180 days after enactment and every 180 days thereafter—to the Chair and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform on complaints received that the Special Counsel referred for disciplinary action. Each report must include (1) a copy of each applicable complaint, (2) the name and position of the employee who is the subject of the complaint, and (3) organization indicating whether the subject employee is a career or noncareer employee. (As background, the Office of Special Counsel investigates federal employee allegations of prohibited personnel practices (i.e., actions such as whistleblower retaliation or discrimination) and may refer substantiated cases to agencies for discipline.)

This section establishes an additional annual reporting requirement for the Special Counsel under 5 U.S.C. 1218(b), in conjunction with the existing annual report on Office of Special Counsel (OSC) activities (now designated as subsection (a)). (The OSC investigates federal employee complaints of prohibited personnel practices, including whistleblower reprisals and Hatch Act violations.) The new report, submitted to the Chair and Ranking Member of each congressional committee of jurisdiction, covers "covered allegations" against noncareer employees (i.e., political appointees) and former noncareer employees and includes (1) the number received in the preceding year; and (2) the number that resulted in an OSC investigation (whether initiated in that year or later). It further requires a confidential addendum to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Accountability specifying, for each non-investigated allegation, the employee's name and position and, for allegations where processing ceased in the preceding year, a description of the outcome—including, for noncareer employees not in Senate-confirmed positions, whether the OSC filed a Merit Systems Protection Board complaint under 5 U.S.C. 1215(a) and whether any Hatch Act civil penalty under 5 U.S.C. 7326 was fully collected. (Thus, the provision increases congressional oversight of OSC handling of complaints against political appointees.)

This section amends public disclosure requirements under 5 U.S.C. 1219 for the Office of Special Counsel (OSC), which enforces the Hatch Act (subchapter III of chapter 73, title 5, U.S. Code) restricting partisan political activity by federal employees, by (1) requiring OSC to maintain and make available to the public a detailed written explanation of the complete basis for each decision not to seek Merit Systems Protection Board (MSPB) action under section 1215(a) against a noncareer employee found to have violated the Hatch Act—excluding those in presidentially nominated, Senate-confirmed positions unless in the Foreign Service; and (2) requiring OSC to track and publish on its website, for at least 10 fiscal years per fiscal year of data, anonymized demographic information (race, sex, ethnicity, national origin, and disability status) on Hatch Act allegations against both career and noncareer employees, including the number received, investigated, and referred to MSPB. (Thus, OSC may request such demographic data from the Office of Personnel Management, employing agencies, and the White House Presidential Personnel Office.)

This section provides a severability clause, stating that if any provision of the Act or its amendments, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act and its amendments, and their application to other persons or circumstances, remain unaffected.