S. 806 — Hatch Act Enforcement Transparency and Accountability Act

This section adds §1219a to subchapter II of chapter 12, title 5, United States Code, defining for purposes of Office of Special Counsel enforcement of political activity restrictions (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 the Hatch Act (subchapter III of chapter 73, title 5); and (3) "noncareer employee" as certain executive branch employees (per 5 U.S.C. §2105), excluding members of the Foreign Service serving under career appointments (as described in 22 U.S.C. §3941). (Thus, Foreign Service career appointees are treated as career employees under these definitions.)

This section establishes a new semi-annual reporting requirement for the Special Counsel under 5 U.S.C. §1217(c). Not later than 180 days after enactment and every 180 days thereafter, the Special Counsel must submit 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 a report on complaints received and referred for disciplinary action during the covered period, which must (1) include a copy of each applicable complaint and the name and position of the subject employee and (2) be organized to indicate whether each subject employee is career or noncareer. (As background, the Office of Special Counsel investigates federal employee allegations of whistleblower retaliation and other prohibited personnel practices and may refer substantiated cases to agencies for discipline.)

This section restructures the annual reporting requirements of the Special Counsel (OSC) under 5 U.S.C. 1218—designating the existing report on OSC activities related to prohibited personnel practices (PPPs) as subsection (a)—and requires an additional annual report under new subsection (b) to the Chair and Ranking Member of each committee of jurisdiction regarding covered PPP allegations against noncareer employees and former noncareer employees (i.e., political appointees). The new report must include (1) the number of such allegations received in the preceding year; (2) the number that resulted in an OSC investigation, whether initiated in that year or later; and (3) a confidential addendum to the Senate Committee on Homeland Security and Governmental Affairs and House Committee on Oversight and Accountability providing, for each non-investigated allegation, the name and position of the subject and, for allegations where processing ceased during the year, a description of the outcome and (for non-Presidentially-appointed, Senate-confirmed positions) whether OSC filed a complaint with the Merit Systems Protection Board and any civil penalty under 5 U.S.C. 7326 was fully collected. (Thus, the changes enhance congressional oversight of OSC handling of PPP claims against political personnel.)

This section directs the Office of Special Counsel (OSC) to expand its public disclosures under 5 U.S.C. §1219(a) by adding (5) detailed written explanations of the complete basis for each decision not to seek disciplinary action via complaint to the Merit Systems Protection Board (MSPB) under section 1215(a) against noncareer employees found to have violated the Hatch Act (subchapter III of 5 U.S.C. chapter 73), except for those in positions requiring presidential nomination and Senate confirmation (unless Foreign Service). It further requires OSC, under new subsection (b), to track, publish ongoing, and maintain for at least 10 fiscal years on its website anonymized fiscal year statistics on covered allegations (i.e., Hatch Act violations) against career and noncareer employees—including numbers received, investigated, and subject to MSPB complaints—along with demographic data on race, sex, ethnicity, national origin, and disability status. (Thus, OSC may request such demographic information from the Office of Personnel Management, employing agencies, or the White House Presidential Personnel Office.)

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