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H.R. 4702 (115th): Department of Education Accountability and Whistleblower Protection Act


The text of the bill below is as of Dec 20, 2017 (Introduced). The bill was not enacted into law.


I

115th CONGRESS

1st Session

H. R. 4702

IN THE HOUSE OF REPRESENTATIVES

December 20, 2017

(for himself and Mr. Smucker) introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on Oversight and Government 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.

1.

Short title

This Act may be cited as the Department of Education Accountability and Whistleblower Protection Act.

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) of title 5.

(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.

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, 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, 2017, the Deputy Secretary shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and the Workforce 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 the Workforce of the House of Representatives a detailed justification for not taking or initiating such disciplinary action.

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.

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;

(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 sections 5701, 5705, and 7732 of this title, under section 552a of title 5 (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.

(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).

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 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.).

(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.

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 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, 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 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 the Workforce 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.

(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.

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.

(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.

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.

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) 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, 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 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.

(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.

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.

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.

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 title 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 the Workforce 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.

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, 2017, 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 the Workforce of the House of Representatives.