[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2188 Introduced in House (IH)]
<DOC>
116th CONGRESS
1st Session
H. R. 2188
To provide accountability and protect whistleblowers in the Department
of Education.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 9, 2019
Mr. Rooney of Florida (for himself and Mr. Smucker) introduced the
following bill; which was referred to the Committee on Education and
Labor, and in addition to the Committee on Oversight and Reform, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To provide accountability and protect whistleblowers in the Department
of Education.
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 ``Department of Education
Accountability and Whistleblower Protection Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) The term ``Department'' means the Department of
Education.
(2) The term ``Deputy Secretary'' means the Deputy
Secretary of Education.
(3) The term ``Office'' means the Office of Management of
the Department of Education.
(4) The term ``Secretary'' means the Secretary of
Education.
(5) The term ``senior executive position at the
Department'' means an individual appointed under section 401(d)
of the Department of Education Organization Act (20 U.S.C.
3461).
(6) The term ``supervisory employee'' means an employee of
the Department who is a supervisor as defined in section
7103(a)(10) of title 5, United States Code.
(7) The term ``whistleblower'' means one who makes a
whistleblower disclosure.
(8) 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.
SEC. 3. OFFICE OF MANAGEMENT.
(a) Functions.--(1) In addition to any other functions, 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 at 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 Inspector
General, or other investigative entity, as appropriate, if the
Deputy Secretary has reason to believe the whistleblower
disclosure is evidence of a violation of a provision of law,
mismanagement, gross waste of funds, or an abuse of authority.
(E) Receiving and referring disclosures from the Special
Counsel for the Inspector General of the Department, or such
other person with investigatory authority, as the Deputy
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 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 at
the Department;
(ii) an individual employed in a confidential,
policy-making, policy-determining, or policy-advocating
position at 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 Deputy 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 Deputy
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 Deputy Secretary receives a
whistleblower disclosure from an employee of the Department under
paragraph (1)(C), the Deputy 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, United States Code, or
as required by any other applicable provision of Federal law.
(b) Staff and Resources.--The Secretary shall ensure that the
Deputy Secretary has such staff, resources, and access to information
as may be necessary to carry out the functions of the Office.
(c) Relation to Office of General Counsel.--The Office shall not be
an element of the Office of the General Counsel and the Deputy
Secretary may not report to the General Counsel.
(d) Reports.--(1)(A) Not later than June 30 of each calendar year,
beginning with June 30, 2020, the Deputy Secretary shall submit to the
Committee on Health, Education, Labor, and Pensions of the Senate and
the Committee on Education and Labor 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
Deputy Secretary considers appropriate.
(ii) Identification of any issues reported to the Secretary
under subsection (b)(1)(G), including such data as the Deputy
Secretary considers relevant to such issues and any trends the
Deputy Secretary may have identified with respect to such
issues.
(iii) Identification of such concerns as the Deputy
Secretary may have regarding the size, staffing, and resources
of the Office and such recommendations as the Deputy Secretary
may have for legislative or administrative action to address
such concerns.
(iv) Such recommendations as the Deputy 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 Deputy 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 (b)(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 Health, Education, Labor,
and Pensions of the Senate and the Committee on Education and Labor of
the House of Representatives a detailed justification for not taking or
initiating such disciplinary action.
SEC. 4. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN EVALUATION OF
SUPERVISORS.
(a) Development and Use of Criteria Required.--The Secretary, in
consultation with the Office of the Principal Deputy Secretary, 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.
SEC. 5. 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, United States Code;
(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
section 552a of title 5, United States Code (commonly referred
to as the Privacy Act);
(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, United States Code.
(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).
SEC. 6. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON
PERFORMANCE OR MISCONDUCT.
(a) Authority.--(1) The Secretary of Education, in consultation
with the Office of Management, 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(1) of title 5, United States Code).
(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
Office of Management, 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, United States Code, 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, United States Code); or
(B) any individual who occupies an administrative
or executive position and who was appointed under title
II of the Department of Education Organization Act (20
U.S.C. 3411 et seq.); and
(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.
SEC. 7. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON
PERFORMANCE OR MISCONDUCT.
(a) In General.--(1) The Secretary, in consultation with the Office
of Management, 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(1) of title 5, United States Code);
(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,
United States Code, 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, United States Code,
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, United States Code.
(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, United States Code, 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, United
States Code, 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, United States Code, 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, United States
Code, 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, United States Code, 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 Health, Education, Labor, and Pensions of the Senate and
the Committee on Education and Labor of the House of Representatives a
report that explains the reasons why a decision was not issued in
accordance with such requirement.
(5) 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, United States
Code, or to any court of appeals of competent jurisdiction pursuant to
subsection (b)(1)(B) of such section.
(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, United States Code.
(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, United States Code).
(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, United States Code, 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 such title.
(2) In the case of a covered individual who has made a
whistleblower disclosure to the Office of Management of the Department
of Education, the Secretary may not remove, demote, or suspend such
covered individual under subsection (a) until--
(A) in the case in which the Deputy Secretary determines to
refer the whistleblower disclosure under section 3(a)(1)(D) 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 Deputy 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, United States Code) 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 at the Department;
(B) an individual appointed under title II of the
Department of Education Organization Act (20 U.S.C.
3411 et seq.);
(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, United States Code;
(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; and
(5) the term ``political appointee'' means an individual
who is--
(A) employed in a position described under sections
5312 through 5316 of title 5, United States Code
(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, United States Code; 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.
SEC. 8. 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 any
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, United States Code, 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;
(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 any 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, United States
Code, 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;
(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) 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 sections 8332(o)(5) and 8411(l)(5) of title 5,
United States Code, 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 4 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, United
States Code, as the case may be; and
(3) the term ``service'' has the meaning given such term in
section 8331(12) or section 8401(26) of title 5, United States
Code, as the case may be.
SEC. 9. 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, United States Code, including under
chapter 45 or 53 of such title, section 141(d)(5)(B) of the Higher
Education Act of 1965 (20 U.S.C. 1018(d)(5)(B)), or another provision
of Federal law, 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;
(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.
(c) Effective Date.--This section shall apply with respect to an
award or bonus paid by the Secretary to an employee of the Department
on or after the date of the enactment of this Act.
SEC. 10. ADVERSE ACTIONS AGAINST SUPERVISORY EMPLOYEES WHO COMMIT
PROHIBITED PERSONNEL ACTIONS RELATING TO WHISTLEBLOWER
COMPLAINTS.
(a) In General.--(1) In accordance with paragraph (2), the
Secretary shall carry out the following adverse actions against
supervisory employees (as defined in section 7103(a) of title 5, United
States Code) whom the Secretary, an administrative judge, the Merit
Systems Protection Board, the Office of Special Counsel, an
adjudicating body provided under a union contract, a Federal judge, or
the Inspector General of the Department determines committed a
prohibited personnel action described in subsection (c):
(A) With respect to the first offense, an adverse action
that is not less than a 12-day suspension and not more than
removal.
(B) With respect to the second offense, removal.
(2)(A) An employee against whom an adverse action under paragraph
(1) is proposed is entitled to written notice.
(B)(i) An employee who is notified under subparagraph (A) of being
the subject of a proposed adverse action under paragraph (1) is
entitled to 10 days following such notification to answer and furnish
evidence in support of the answer.
(ii) If the employee does not furnish any such evidence as
described in clause (i) or if the Secretary determines that such
evidence is not sufficient to reverse the determination to propose the
adverse action, the Secretary shall carry out the adverse action
following such 10-day period.
(C) Paragraphs (1) and (2) of subsection (b) of section 7513 of
title 5, United States Code, subsection (c) of such section, paragraphs
(1) and (2) of subsection (b) of section 7543 of such title, and
subsection (c) of such section shall not apply with respect to an
adverse action carried out under paragraph (1).
(b) Limitation on Other Adverse Actions.--With respect to a
prohibited personnel action described in subsection (c), if the
Secretary carries out an adverse action against a supervisory employee,
the Secretary may carry out an additional adverse action under this
section based on the same prohibited personnel action if the total
severity of the adverse actions do not exceed the level specified in
subsection (a).
(c) Prohibited Personnel Action Described.--A prohibited personnel
action described in this subsection is any of the following actions:
(1) Taking or failing to take a personnel action in
violation of section 2302 of title 5, United States Code,
against an employee relating to the employee--
(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;
(B) providing information or participating as a
witness in an investigation of a whistleblower
disclosure made to the Assistant Secretary for
Accountability and Whistleblower Protection, the
Inspector General of the Department, the Special
Counsel, or Congress;
(C) participating in an audit or investigation by
the Comptroller General of the United States;
(D) refusing to perform an action that is unlawful
or prohibited by the Department; or
(E) engaging in communications that are related to
the duties of the position or are otherwise protected.
(2) Preventing or restricting an employee from making an
action described in any of subparagraphs (A) through (E) of
paragraph (1).
(3) Conducting a negative peer review or opening a
retaliatory investigation because of an activity of an employee
that is protected by section 2302 of title 5, United States
Code.
(4) Requesting a contractor to carry out an action that is
prohibited by section 4705(b) or section 4712(a)(1) of title
41, as the case may be.
SEC. 11. 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, United States Code, for relocation
expenses, including any expenses under section 5724 or 5724a of such
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.
(c) Effective Date.--This section shall apply with respect to an
amount paid by the Secretary to or on behalf of an employee of the
Department for relocation expenses 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.
SEC. 12. IMPROVEMENT OF TRAINING FOR SUPERVISORS.
(a) In General.--The Secretary of Education shall provide to each
employee of the Department of Education 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, the term ``supervisor'' has the
meaning given such term in section 7103(a) of title 5, United States
Code.
SEC. 13. ASSESSMENT AND REPORT ON EFFECT ON SENIOR EXECUTIVES AT
DEPARTMENT OF EDUCATION.
(a) In General.--Not later than two years after the date of the
enactment of this Act, the Secretary of Education, in consultation with
the Office of Management, shall--
(1) measure and assess the effect of the enactment of this
Act on the morale, engagement, hiring, promotion, retention,
discipline, and productivity of individuals in senior executive
positions at the Department; and
(2) submit to the Committee on Health, Education, Labor,
and Pensions of the Senate and the Committee on Education and
Labor 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 at the Department 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 at the
Department; and
(B) trends in applications to senior executive
positions at 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 at the Department and components and offices
which experience the least relative to the size of the
components or offices' total number of senior executive
positions at the Department;
(C) the tenure of individuals in senior executive
positions at the Department who are the subject of
disciplinary action;
(D) whether the individuals in senior executive
positions at the Department 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
at the Department 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.
SEC. 14. MEASUREMENT OF DEPARTMENT OF EDUCATION DISCIPLINARY PROCESS
OUTCOMES AND EFFECTIVENESS.
(a) Measuring and Collecting.--
(1) In general.--The Secretary of Education, in
consultation with the Office of Management, shall measure and
collect information on the outcomes of disciplinary actions
carried out by the Department of Education 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, 2019, 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 Health, Education, Labor, and Pensions of
the Senate; and
(B) the Committee on Appropriations and the
Committee on Education and Labor of the House of
Representatives.
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