I 

115TH CONGRESS 

1ST SESSION H. R. 4702 

To provide accountability and protect whistleblowers in the Department of 

Education. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 20, 2017 

Mr. FRANCIS ROONEY of Florida (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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Department of Edu5 cation Accountability and Whistleblower Protection Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) The term ‘‘Department’’ means the Depart2 ment of Education. 

3 (2) The term ‘‘Deputy Secretary’’ means the 

4 Deputy Secretary of Education. 

5 (3) The term ‘‘Office’’ means the Office of 

6 Management of the Department of Education. 

7 (4) The term ‘‘Secretary’’ means the Secretary 

8 of Education. 

9 (5) The term ‘‘senior executive position at the 

10 Department’’ means an individual appointed under 

11 section 401(d) of the Department of Education Or12 ganization Act (20 U.S.C. 3461). 

13 (6) The term ‘‘supervisory employee’’ means an 

14 employee of the Department who is a supervisor as 

15 defined in section 7103(a) of title 5. 

16 (7) The term ‘‘whistleblower’’ means one who 

17 makes a whistleblower disclosure. 

18 (8) The term ‘‘whistleblower disclosure’’ means 

19 any disclosure of information by an employee of the 

20 Department or individual applying to become an em21 ployee of the Department which the employee or in22 dividual reasonably believes evidences— 

23 (A) a violation of a law, rule, or regulation; 

24 or 


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1 (B) gross mismanagement, a gross waste 

2 of funds, an abuse of authority, or a substantial 

3 and specific danger to public health or safety. 

4 SEC. 3. OFFICE OF MANAGEMENT. 

5 (a) FUNCTIONS.—(1) In addition to any other func6 tions, the functions of the Office are as follows: 

7 (A) Advising the Secretary on all matters of the 

8 Department relating to accountability, including ac9 countability of employees of the Department, retalia10 tion against whistleblowers, and such matters as the 

11 Secretary considers similar and affect public trust at 

12 the Department. 

13 (B) Issuing reports and providing recommenda14 tions related to the duties described in subparagraph 

15 (A). 

16 (C) Receiving whistleblower disclosures. 

17 (D) Referring whistleblower disclosures received 

18 under subparagraph (C) for investigation to the Of19 fice of Inspector General, or other investigative enti20 ty, as appropriate, if the Deputy Secretary has rea21 son to believe the whistleblower disclosure is evi22 dence of a violation of a provision of law, mis23 management, gross waste of funds, or an abuse of 

24 authority. 


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1 (E) Receiving and referring disclosures from 

2 the Special Counsel for the Inspector General of the 

3 Department, or such other person with investigatory 

4 authority, as the Deputy Secretary considers appro5 priate. 

6 (F) Recording, tracking, reviewing, and con7 firming implementation of recommendations from 

8 audits and investigations carried out by the Inspec9 tor General of the Department, the Special Counsel, 

10 and the Comptroller General of the United States, 

11 including the imposition of disciplinary actions and 

12 other corrective actions contained in such rec13 ommendations. 

14 (G) Analyzing data from the Office and the Of15 fice of Inspector General telephone hotlines, other 

16 whistleblower disclosures, disaggregated by facility 

17 and area of health care if appropriate, and relevant 

18 audits and investigations to identify trends and issue 

19 reports to the Secretary based on analysis conducted 

20 under this subparagraph. 

21 (H) Receiving, reviewing, and investigating alle22 gations of misconduct, retaliation, or poor perform23 ance involving— 

24 (i) an individual in a senior executive posi25 tion at the Department; 


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1 (ii) an individual employed in a confiden2 tial, policy-making, policy-determining, or pol3 icy-advocating position at the Department; or 

4 (iii) a supervisory employee, if the allega5 tion involves retaliation against an employee for 

6 making a whistleblower disclosure. 

7 (I) Making such recommendations to the Sec8 retary for disciplinary action as the Deputy Sec9 retary considers appropriate after substantiating any 

10 allegation of misconduct or poor performance pursu11 ant to an investigation carried out as described in 

12 subparagraph (F) or (H). 

13 (2) In carrying out the functions of the Office, the 

14 Deputy Secretary shall ensure that the Office maintains 

15 a toll-free telephone number and Internet website to re16 ceive anonymous whistleblower disclosures. 

17 (3) In any case in which the Deputy Secretary re18 ceives a whistleblower disclosure from an employee of the 

19 Department under paragraph (1)(C), the Deputy Sec20 retary may not disclose the identity of the employee with21 out the consent of the employee, except in accordance with 

22 the provisions of section 552a of title 5, or as required 

23 by any other applicable provision of Federal law. 

24 (b) STAFF AND RESOURCES.—The Secretary shall 

25 ensure that the Deputy Secretary has such staff, reVerDate Sep 11 2014 03:28 Dec 21, 2017 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4702.IH H4702

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1 sources, and access to information as may be necessary 

2 to carry out the functions of the Office. 

3 (c) RELATION TO OFFICE OF GENERAL COUNSEL.— 

4 The Office shall not be an element of the Office of the 

5 General Counsel and the Deputy Secretary may not report 

6 to the General Counsel. 

7 (d) REPORTS.—(1)(A) Not later than June 30 of 

8 each calendar year, beginning with June 30, 2017, the 

9 Deputy Secretary shall submit to the Committee on 

10 Health, Education, Labor, and Pensions of the Senate and 

11 the Committee on Education and the Workforce of the 

12 House of Representatives a report on the activities of the 

13 Office during the calendar year in which the report is sub14 mitted. 

15 (B) Each report submitted under subparagraph (A) 

16 shall include, for the period covered by the report, the fol17 lowing: 

18 (i) A full and substantive analysis of the activi19 ties of the Office, including such statistical informa20 tion as the Deputy Secretary considers appropriate. 

21 (ii) Identification of any issues reported to the 

22 Secretary under subsection (b)(1)(G), including such 

23 data as the Deputy Secretary considers relevant to 

24 such issues and any trends the Deputy Secretary 

25 may have identified with respect to such issues. 


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1 (iii) Identification of such concerns as the Dep2 uty Secretary may have regarding the size, staffing, 

3 and resources of the Office and such recommenda4 tions as the Deputy Secretary may have for legisla5 tive or administrative action to address such con6 cerns. 

7 (iv) Such recommendations as the Deputy Sec8 retary may have for legislative or administrative ac9 tion to improve— 

10 (I) the process by which concerns are re11 ported to the Office; and 

12 (II) the protection of whistleblowers within 

13 the Department. 

14 (v) Such other matters as the Deputy Secretary 

15 considers appropriate regarding the functions of the 

16 Office or other matters relating to the Office. 

17 (2) If the Secretary receives a recommendation for 

18 disciplinary action under subsection (b)(1)(I) and does not 

19 take or initiate the recommended disciplinary action before 

20 the date that is 60 days after the date on which the Sec21 retary received the recommendation, the Secretary shall 

22 submit to the Committee on Health, Education, Labor, 

23 and Pensions of the Senate and the Committee on Edu24 cation and the Workforce of the House of Representatives 


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1 a detailed justification for not taking or initiating such 

2 disciplinary action. 

3 SEC. 4. PROTECTION OF WHISTLEBLOWERS AS CRITERIA 

4 IN EVALUATION OF SUPERVISORS. 

5 (a) DEVELOPMENT AND USE OF CRITERIA RE6 QUIRED.—The Secretary, in consultation with the Office 

7 of the Principal Deputy Secretary, shall develop criteria 

8 that— 

9 (1) the Secretary shall use as a critical element 

10 in any evaluation of the performance of a super11 visory employee; and 

12 (2) promotes the protection of whistleblowers. 

13 (b) PRINCIPLES FOR PROTECTION OF WHISTLE14 BLOWERS.—The criteria required by subsection (a) shall 

15 include principles for the protection of whistleblowers, 

16 such as the degree to which supervisory employees respond 

17 constructively when employees of the Department report 

18 concerns, take responsible action to resolve such concerns, 

19 and foster an environment in which employees of the De20 partment feel comfortable reporting concerns to super21 visory employees or to the appropriate authorities. 

22 SEC. 5. TRAINING REGARDING WHISTLEBLOWER DISCLO23 SURES. 

24 (a) TRAINING.—Not less frequently than once every 

25 two years, the Secretary, in coordination with the WhistleVerDate Sep 11 2014 03:28 Dec 21, 2017 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4702.IH H4702

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1 blower Protection Ombudsman designated under section 

2 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. 

3 App.), shall provide to each employee of the Department 

4 training regarding whistleblower disclosures, including— 

5 (1) an explanation of each method established 

6 by law in which an employee may file a whistle7 blower disclosure; 

8 (2) the right of the employee to petition Con9 gress regarding a whistleblower disclosure in accord10 ance with section 7211 of title 5; 

11 (3) an explanation that the employee may not 

12 be prosecuted or reprised against for disclosing in13 formation to Congress, the Inspector General, or an14 other investigatory agency in instances where such 

15 disclosure is permitted by law, including under sec16 tions 5701, 5705, and 7732 of this title, under sec17 tion 552a of title 5 (commonly referred to as the 

18 Privacy Act); 

19 (4) an explanation of the language that is re20 quired to be included in all nondisclosure policies, 

21 forms, and agreements pursuant to section 

22 115(a)(1) of the Whistleblower Protection Enhance23 ment Act of 2012 (5 U.S.C. 2302 note); and 


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1 (5) the right of contractors to be protected from 

2 reprisal for the disclosure of certain information 

3 under section 4705 or 4712 of title 41. 

4 (b) MANNER TRAINING IS PROVIDED.—The Sec5 retary shall ensure, to the maximum extent practicable, 

6 that training provided under subsection (a) is provided in 

7 person. 

8 (c) CERTIFICATION.—Not less frequently than once 

9 every two years, the Secretary shall provide training on 

10 merit system protection in a manner that the Special 

11 Counsel certifies as being satisfactory. 

12 (d) PUBLICATION.—The Secretary shall publish on 

13 the Internet website of the Department, and display 

14 prominently at each facility of the Department, the rights 

15 of an employee to make a whistleblower disclosure, includ16 ing the information described in paragraphs (1) through 

17 (5) of subsection (a). 

18 SEC. 6. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR 

19 SUSPENSION BASED ON PERFORMANCE OR 

20 MISCONDUCT. 

21 (a) AUTHORITY.—(1) The Secretary of Education, in 

22 consultation with the Office of Management, may, as pro23 vided in this section, reprimand or suspend, involuntarily 

24 reassign, demote, or remove a covered individual from a 

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1 retary determines that the misconduct or performance of 

2 the covered individual warrants such action. 

3 (2) If the Secretary so removes such an individual, 

4 the Secretary may remove the individual from the civil 

5 service (as defined in section 2101 of title 5, United States 

6 Code). 

7 (b) RIGHTS AND PROCEDURES.—(1) A covered indi8 vidual who is the subject of an action under subsection 

9 (a) is entitled to— 

10 (A) advance notice of the action and a file con11 taining all evidence in support of the proposed ac12 tion; 

13 (B) be represented by an attorney or other rep14 resentative of the covered individual’s choice; and 

15 (C) grieve the action in accordance with an in16 ternal grievance process that the Secretary, in con17 sultation with the Office of Management, shall es18 tablish for purposes of this subsection. 

19 (2)(A) The aggregate period for notice, response, and 

20 decision on an action under subsection (a) may not exceed 

21 15 business days. 

22 (B) The period for the response of a covered indi23 vidual to a notice under paragraph (1)(A) of an action 

24 under subsection (a) shall be 7 business days. 


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1 (C) A decision under this paragraph on an action 

2 under subsection (a) shall be issued not later than 15 busi3 ness days after notice of the action is provided to the cov4 ered individual under paragraph (1)(A). The decision shall 

5 be in writing, and shall include the specific reasons there6 for. 

7 (3) The Secretary shall ensure that the grievance 

8 process established under paragraph (1)(C) takes fewer 

9 than 21 days. 

10 (4) A decision under paragraph (2) that is not 

11 grieved, and a grievance decision under paragraph (3), 

12 shall be final and conclusive. 

13 (5) A covered individual adversely affected by a deci14 sion under paragraph (2) that is not grieved, or by a griev15 ance decision under paragraph (3), may obtain judicial re16 view of such decision. 

17 (6) In any case in which judicial review is sought 

18 under paragraph (5), the court shall review the record and 

19 may set aside any Department action found to be— 

20 (A) arbitrary, capricious, an abuse of discretion, 

21 or otherwise not in accordance with a provision of 

22 law; 

23 (B) obtained without procedures required by a 

24 provision of law having been followed; or 

25 (C) unsupported by substantial evidence. 


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1 (c) RELATION TO OTHER PROVISIONS OF LAW.— 

2 Section 3592(b)(1) of title 5, United States Code, and the 

3 procedures under section 7543(b) of such title do not 

4 apply to an action under subsection (a). 

5 (d) DEFINITIONS.—In this section: 

6 (1) The term ‘‘covered individual’’ means— 

7 (A) a career appointee (as that term is de8 fined in section 3132(a)(4) of title 5, United 

9 States Code); or 

10 (B) any individual who occupies an admin11 istrative or executive position and who was ap12 pointed under title II of the Department of 

13 Education Organization Act (20 U.S.C. 3411 et 

14 seq.). 

15 (2) The term ‘‘misconduct’’ includes neglect of 

16 duty, malfeasance, or failure to accept a directed re17 assignment or to accompany a position in a transfer 

18 of function. 

19 SEC. 7. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPEN20 SION BASED ON PERFORMANCE OR MIS21 CONDUCT. 

22 (a) IN GENERAL.—(1) The Secretary, in consultation 

23 with the Office of Management, may remove, demote, or 

24 suspend a covered individual who is an employee of the 

25 Department if the Secretary determines the performance 


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1 or misconduct of the covered individual warrants such re2 moval, demotion, or suspension. 

3 (2) If the Secretary so removes, demotes, or suspends 

4 such a covered individual, the Secretary may— 

5 (A) remove the covered individual from the civil 

6 service (as defined in section 2101 of title 5, United 

7 States Code); 

8 (B) demote the covered individual by means of 

9 a reduction in grade for which the covered individual 

10 is qualified, that the Secretary determines is appro11 priate, and that reduces the annual rate of pay of 

12 the covered individual; or 

13 (C) suspend the covered individual. 

14 (b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

15 Notwithstanding any other provision of law, any covered 

16 individual subject to a demotion under subsection (a)(2) 

17 shall, beginning on the date of such demotion, receive the 

18 annual rate of pay applicable to such grade. 

19 (2)(A) A covered individual so demoted may not be 

20 placed on administrative leave during the period during 

21 which an appeal (if any) under this section is ongoing, 

22 and may only receive pay if the covered individual reports 

23 for duty or is approved to use accrued unused annual, 

24 sick, family medical, military, or court leave. 


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1 (B) If a covered individual so demoted does not re2 port for duty or receive approval to use accrued unused 

3 leave, such covered individual shall not receive pay or 

4 other benefits pursuant to subsection (d)(5). 

5 (c) PROCEDURE.—(1)(A) The aggregate period for 

6 notice, response, and final decision in a removal, demotion, 

7 or suspension under this section may not exceed 15 busi8 ness days. 

9 (B) The period for the response of a covered indi10 vidual to a notice of a proposed removal, demotion, or sus11 pension under this section shall be 7 business days. 

12 (C) Paragraph (3) of subsection (b) of section 7513 

13 of title 5, United States Code, shall apply with respect 

14 to a removal, demotion, or suspension under this section. 

15 (D) The procedures in this subsection shall supersede 

16 any collective bargaining agreement to the extent that 

17 such agreement is inconsistent with such procedures. 

18 (2) The Secretary shall issue a final decision with re19 spect to a removal, demotion, or suspension under this sec20 tion not later than 15 business days after the Secretary 

21 provides notice, including a file containing all the evidence 

22 in support of the proposed action, to the covered individual 

23 of the removal, demotion, or suspension. The decision shall 

24 be in writing and shall include the specific reasons there25 for. 


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1 (3) The procedures under chapter 43 of title 5, 

2 United States Code, shall not apply to a removal, demo3 tion, or suspension under this section. 

4 (4)(A) Subject to subparagraph (B) and subsection 

5 (d), any removal or demotion under this section, and any 

6 suspension of more than 14 days under this section, may 

7 be appealed to the Merit Systems Protection Board, which 

8 shall refer such appeal to an administrative judge pursu9 ant to section 7701(b)(1) of title 5, United States Code. 

10 (B) An appeal under subparagraph (A) of a removal, 

11 demotion, or suspension may only be made if such appeal 

12 is made not later than 10 business days after the date 

13 of such removal, demotion, or suspension. 

14 (d) EXPEDITED REVIEW.—(1) Upon receipt of an ap15 peal under subsection (c)(4)(A), the administrative judge 

16 shall expedite any such appeal under section 7701(b)(1) 

17 of title 5, United States Code, and, in any such case, shall 

18 issue a final and complete decision not later than 180 days 

19 after the date of the appeal. 

20 (2)(A) Notwithstanding section 7701(c)(1)(B) of title 

21 5, the administrative judge shall uphold the decision of 

22 the Secretary to remove, demote, or suspend an employee 

23 under subsection (a) if the decision is supported by sub24 stantial evidence. 


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1 (B) Notwithstanding title 5, United States Code, or 

2 any other provision of law, if the decision of the Secretary 

3 is supported by substantial evidence, the administrative 

4 judge shall not mitigate the penalty prescribed by the Sec5 retary. 

6 (3)(A) The decision of the administrative judge under 

7 paragraph (1) may be appealed to the Merit Systems Pro8 tection Board. 

9 (B) Notwithstanding section 7701(c)(1)(B) of title 5, 

10 United States Code, the Merit Systems Protection Board 

11 shall uphold the decision of the Secretary to remove, de12 mote, or suspend an employee under subsection (a) if the 

13 decision is supported by substantial evidence. 

14 (C) Notwithstanding title 5 or any other provision of 

15 law, if the decision of the Secretary is supported by sub16 stantial evidence, the Merit Systems Protection Board 

17 shall not mitigate the penalty prescribed by the Secretary. 

18 (4) In any case in which the administrative judge 

19 cannot issue a decision in accordance with the 180-day 

20 requirement under paragraph (1), the Merit Systems Pro21 tection Board shall, not later than 14 business days after 

22 the expiration of the 180-day period, submit to the Com23 mittee on Health, Education, Labor, and Pensions of the 

24 Senate and the Committee on Education and the Work25 force of the House of Representatives a report that exVerDate Sep 11 2014 03:28 Dec 21, 2017 Jkt 079200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H4702.IH H4702

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1 plains the reasons why a decision was not issued in accord2 ance with such requirement. 

3 (5) A decision of the Merit Systems Protection Board 

4 under paragraph (3) may be appealed to the United States 

5 Court of Appeals for the Federal Circuit pursuant to sec6 tion 7703 of title 5, United States Code, or to any court 

7 of appeals of competent jurisdiction pursuant to sub8 section (b)(1)(B) of such section. 

9 (6) The Merit Systems Protection Board may not 

10 stay any removal or demotion under this section, except 

11 as provided in section 1214(b) of title 5, United States 

12 Code. 

13 (7) During the period beginning on the date on which 

14 a covered individual appeals a removal from the civil serv15 ice under subsection (c) and ending on the date that the 

16 United States Court of Appeals for the Federal Circuit 

17 issues a final decision on such appeal, such covered indi18 vidual may not receive any pay, awards, bonuses, incen19 tives, allowances, differentials, student loan repayments, 

20 special payments, or benefits related to the employment 

21 of the individual by the Department. 

22 (8) To the maximum extent practicable, the Secretary 

23 shall provide to the Merit Systems Protection Board such 

24 information and assistance as may be necessary to ensure 

25 an appeal under this subsection is expedited. 


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1 (9) If an employee prevails on appeal under this sec2 tion, the employee shall be entitled to backpay (as pro3 vided in section 5596 of title 5, United States Code). 

4 (10) If an employee who is subject to a collective bar5 gaining agreement chooses to grieve an action taken under 

6 this section through a grievance procedure provided under 

7 the collective bargaining agreement, the timelines and pro8 cedures set forth in subsection (c) and this subsection 

9 shall apply. 

10 (e) WHISTLEBLOWER PROTECTION.—(1) In the case 

11 of a covered individual seeking corrective action (or on be12 half of whom corrective action is sought) from the Office 

13 of Special Counsel based on an alleged prohibited per14 sonnel practice described in section 2302(b) of title 5, 

15 United States Code, the Secretary may not remove, de16 mote, or suspend such covered individual under subsection 

17 (a) without the approval of the Special Counsel under sec18 tion 1214(f) of such title. 

19 (2) In the case of a covered individual who has made 

20 a whistleblower disclosure to the Office of Management 

21 of the Department of Education, the Secretary may not 

22 remove, demote, or suspend such covered individual under 

23 subsection (a) until— 

24 (A) in the case in which the Deputy Secretary 

25 determines to refer the whistleblower disclosure 


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1 under section 3(a)(1)(D) to an office or other inves2 tigative entity, a final decision with respect to the 

3 whistleblower disclosure has been made by such of4 fice or other investigative entity; or 

5 (B) in the case in which the Deputy Secretary 

6 determines not to the refer the whistleblower disclo7 sure under such section, the Assistant Secretary 

8 makes such determination. 

9 (f) TERMINATION OF INVESTIGATIONS BY OFFICE OF

10 SPECIAL COUNSEL.—(1) Notwithstanding any other pro11 vision of law, the Special Counsel (established by section 

12 1211 of title 5, United States Code) may terminate an 

13 investigation of a prohibited personnel practice alleged by 

14 an employee or former employee of the Department after 

15 the Special Counsel provides to the employee or former 

16 employee a written statement of the reasons for the termi17 nation of the investigation. 

18 (2) Such statement may not be admissible as evidence 

19 in any judicial or administrative proceeding without the 

20 consent of such employee or former employee. 

21 (g) VACANCIES.—In the case of a covered individual 

22 who is removed or demoted under subsection (a), to the 

23 maximum extent feasible, the Secretary shall fill the va24 cancy arising as a result of such removal or demotion. 

25 (h) DEFINITIONS.—In this section: 


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1 (1) The term ‘‘covered individual’’ means an in2 dividual occupying a position at the Department, but 

3 does not include— 

4 (A) an individual occupying a senior execu5 tive position at the Department; 

6 (B) an individual appointed under title II 

7 of the Department of Education Organization 

8 Act (20 U.S.C. 3411 et seq.); 

9 (C) an individual who has not completed a 

10 probationary or trial period; or 

11 (D) a political appointee. 

12 (2) The term ‘‘suspend’’ means the placing of 

13 an employee, for disciplinary reasons, in a temporary 

14 status without duties and pay for a period in excess 

15 of 14 days. 

16 (3) The term ‘‘grade’’ has the meaning given 

17 such term in section 7511(a) of title 5, United 

18 States Code. 

19 (4) The term ‘‘misconduct’’ includes neglect of 

20 duty, malfeasance, or failure to accept a directed re21 assignment or to accompany a position in a transfer 

22 of function. 

23 (5) The term ‘‘political appointee’’ means an in24 dividual who is— 


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1 (A) employed in a position described under 

2 sections 5312 through 5316 of title 5, United 

3 States Code (relating to the Executive Sched4 ule); 

5 (B) a limited term appointee, limited emer6 gency appointee, or noncareer appointee in the 

7 Senior Executive Service, as defined under 

8 paragraphs (5), (6), and (7), respectively, of 

9 section 3132(a) of title 5, United States Code; 

10 or 

11 (C) employed in a position of a confidential 

12 or policy-determining character under schedule 

13 C of subpart C of part 213 of title 5, Code of 

14 Federal Regulations, or successor regulation. 

15 SEC. 8. REDUCTION OF BENEFITS OF EMPLOYEES CON16 VICTED OF CERTAIN CRIMES. 

17 (a) REDUCTION OF ANNUITY FOR REMOVED EM18 PLOYEE.—(1) The Secretary shall order that the covered 

19 service of an employee of the Department removed from 

20 a position for performance or misconduct under any provi21 sion of law shall not be taken into account for purposes 

22 of calculating an annuity with respect to such individual 

23 under chapter 83 or chapter 84 of title 5, United States 

24 Code, if— 


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1 (A) the Secretary determines that the individual 

2 is convicted of a felony (and the conviction is final) 

3 that influenced the individual’s performance while 

4 employed in the position; 

5 (B) before such order is made, the individual is 

6 afforded— 

7 (i) notice of the proposed order; and 

8 (ii) an opportunity to respond to the pro9 posed order by not later than ten business days 

10 following receipt of such notice; and 

11 (C) the Secretary issues the order— 

12 (i) in the case of a proposed order to which 

13 an individual responds under subparagraph 

14 (B)(ii), not later than five business days after 

15 receiving the response of the individual; or 

16 (ii) in the case of a proposed order to 

17 which an individual does not respond, not later 

18 than 15 business days after the Secretary pro19 vides notice to the individual under subpara20 graph (B)(i). 

21 (2) Any individual with respect to whom an annuity 

22 is reduced under this subsection may appeal the reduction 

23 to the Director of the Office of Personnel Management 

24 pursuant to such regulations as the Director may pre25 scribe for purposes of this subsection. 


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1 (b) REDUCTION OF ANNUITY FOR RETIRED EM2 PLOYEE.—(1) The Secretary may order that the covered 

3 service of an individual who the Secretary proposes to re4 move for performance or misconduct under any provision 

5 of law but who leaves employment at the Department prior 

6 to the issuance of a final decision with respect to such 

7 action shall not be taken into account for purposes of cal8 culating an annuity with respect to such individual under 

9 chapter 83 or chapter 84 of title 5, United States Code, 

10 if— 

11 (A) the Secretary determines that individual is 

12 convicted of a felony (and the conviction is final) 

13 that influenced the individual’s performance while 

14 employed in the position; 

15 (B) before such order is made, the individual is 

16 afforded— 

17 (i) notice of the proposed order; and 

18 (ii) an opportunity to respond to the pro19 posed order by not later than ten business days 

20 following receipt of such notice; and 

21 (C) the Secretary issues the order— 

22 (i) in the case of a proposed order to which 

23 an individual responds under subparagraph 

24 (B)(ii), not later than five business days after 

25 receiving the response of the individual; or 


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1 (ii) in the case of a proposed order to 

2 which an individual does not respond, not later 

3 than 15 business days after the Secretary pro4 vides notice to the individual under subpara5 graph (B)(i). 

6 (2) Upon the issuance of an order by the Secretary 

7 under paragraph (1), the individual shall have an oppor8 tunity to appeal the order to the Director of the Office 

9 of Personnel Management before the date that is seven 

10 business days after the date of such issuance. 

11 (3) The Director of the Office of Personnel Manage12 ment shall make a final decision with respect to an appeal 

13 under paragraph (2) within 30 business days of receiving 

14 the appeal. 

15 (c) ADMINISTRATIVE REQUIREMENTS.—Not later 

16 than 37 business days after the Secretary issues a final 

17 order under subsection (a) or (b) with respect to an indi18 vidual, the Director of the Office of Personnel Manage19 ment shall recalculate the annuity of the individual. 

20 (d) LUMP-SUM ANNUITY CREDIT.—Any individual 

21 with respect to whom an annuity is reduced under sub22 section (a) or (b) shall be entitled to be paid so much of 

23 such individual’s lump-sum credit as is attributable to the 

24 period of covered service. 


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1 (e) SPOUSE OR CHILDREN EXCEPTION.—(1) The 

2 Secretary, in consultation with the Director of the Office 

3 of Personnel Management, shall prescribe regulations that 

4 may provide for the payment to the spouse or children 

5 of any individual referred to in subsection (a) or (b) of 

6 any amounts which (but for this subsection) would other7 wise have been nonpayable by reason of such subsections. 

8 (2) Regulations prescribed under paragraph (1) shall 

9 be consistent with the requirements of sections 8332(o)(5) 

10 and 8411(l)(5) of title 5, United States Code, as the case 

11 may be. 

12 (f) DEFINITIONS.—In this section: 

13 (1) The term ‘‘covered service’’ means, with re14 spect to an individual subject to a removal for per15 formance or misconduct under section 4 or any 

16 other provision of law, the period of service begin17 ning on the date that the Secretary determines 

18 under such applicable provision that the individual 

19 engaged in activity that gave rise to such action and 

20 ending on the date that the individual is removed 

21 from or leaves a position of employment at the De22 partment prior to the issuance of a final decision 

23 with respect to such action. 

24 (2) The term ‘‘lump-sum credit’’ has the mean25 ing given such term in section 8331(8) or section 


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1 8401(19) of title 5, United States Code, as the case 

2 may be. 

3 (3) The term ‘‘service’’ has the meaning given 

4 such term in section 8331(12) or section 8401(26) 

5 of title 5, United States Code, as the case may be. 

6 SEC. 9. RECOUPMENT OF BONUSES OR AWARDS PAID TO 

7 EMPLOYEES OF DEPARTMENT. 

8 (a) IN GENERAL.—Notwithstanding any other provi9 sion of law, the Secretary may issue an order directing 

10 an employee of the Department to repay the amount, or 

11 a portion of the amount, of any award or bonus paid to 

12 the employee under title 5, United States Code, including 

13 under chapter 45 or 53 of such title, section 141(d)(5)(B) 

14 of the Higher Education Act of 1965 (20 U.S.C. 

15 1018(d)(5)(B)), or another provision of Federal law, if— 

16 (1) the Secretary determines that the individual 

17 engaged in misconduct or poor performance prior to 

18 payment of the award or bonus, and that such 

19 award or bonus would not have been paid, in whole 

20 or in part, had the misconduct or poor performance 

21 been known prior to payment; 

22 (2) before such repayment, the employee is af23 forded— 

24 (A) notice of the proposed order; and 


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1 (B) an opportunity to respond to the pro2 posed order by not later than 10 business days 

3 after the receipt of such notice; and 

4 (3) the Secretary issues the order— 

5 (A) in the case of a proposed order to 

6 which an individual responds under paragraph 

7 (2)(B), not later than five business days after 

8 receiving the response of the individual; or 

9 (B) in the case of a proposed order to 

10 which an individual does not respond, not later 

11 than 15 business days after the Secretary pro12 vides notice to the individual under paragraph 

13 (2)(A). 

14 (b) APPEAL OF ORDER OF SECRETARY.—(1) Upon 

15 the issuance of an order by the Secretary under subsection 

16 (a) with respect to an individual, the individual shall have 

17 an opportunity to appeal the order to the Director of the 

18 Office of Personnel Management before the date that is 

19 seven business days after the date of such issuance. 

20 (2) The Director shall make a final decision with re21 spect to an appeal under paragraph (1) within 30 business 

22 days after receiving such appeal. 

23 (c) EFFECTIVE DATE.—This section shall apply with 

24 respect to an award or bonus paid by the Secretary to 


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1 an employee of the Department on or after the date of 

2 the enactment of this Act. 

3 SEC. 10. ADVERSE ACTIONS AGAINST SUPERVISORY EM4 PLOYEES WHO COMMIT PROHIBITED PER5 SONNEL ACTIONS RELATING TO WHISTLE6 BLOWER COMPLAINTS. 

7 (a) IN GENERAL.—(1) In accordance with paragraph 

8 (2), the Secretary shall carry out the following adverse ac9 tions against supervisory employees (as defined in section 

10 7103(a) of title 5) whom the Secretary, an administrative 

11 judge, the Merit Systems Protection Board, the Office of 

12 Special Counsel, an adjudicating body provided under a 

13 union contract, a Federal judge, or the Inspector General 

14 of the Department determines committed a prohibited per15 sonnel action described in subsection (c): 

16 (A) With respect to the first offense, an adverse 

17 action that is not less than a 12-day suspension and 

18 not more than removal. 

19 (B) With respect to the second offense, re20 moval. 

21 (2)(A) An employee against whom an adverse action 

22 under paragraph (1) is proposed is entitled to written no23 tice. 

24 (B)(i) An employee who is notified under subpara25 graph (A) of being the subject of a proposed adverse acVerDate Sep 11 2014 03:28 Dec 21, 2017 Jkt 079200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H4702.IH H4702

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1 tion under paragraph (1) is entitled to 10 days following 

2 such notification to answer and furnish evidence in sup3 port of the answer. 

4 (ii) If the employee does not furnish any such evi5 dence as described in clause (i) or if the Secretary deter6 mines that such evidence is not sufficient to reverse the 

7 determination to propose the adverse action, the Secretary 

8 shall carry out the adverse action following such 10-day 

9 period. 

10 (C) Paragraphs (1) and (2) of subsection (b) of sec11 tion 7513 of title 5, subsection (c) of such section, para12 graphs (1) and (2) of subsection (b) of section 7543 of 

13 such title, and subsection (c) of such section shall not 

14 apply with respect to an adverse action carried out under 

15 paragraph (1). 

16 (b) LIMITATION ON OTHER ADVERSE ACTIONS.— 

17 With respect to a prohibited personnel action described in 

18 subsection (c), if the Secretary carries out an adverse ac19 tion against a supervisory employee, the Secretary may 

20 carry out an additional adverse action under this section 

21 based on the same prohibited personnel action if the total 

22 severity of the adverse actions do not exceed the level spec23 ified in subsection (a). 


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1 (c) PROHIBITED PERSONNEL ACTION DESCRIBED.— 

2 A prohibited personnel action described in this subsection 

3 is any of the following actions: 

4 (1) Taking or failing to take a personnel action 

5 in violation of section 2302 of title 5 against an em6 ployee relating to the employee— 

7 (A) making a whistleblower disclosure to 

8 the Assistant Secretary for Accountability and 

9 Whistleblower Protection, the Inspector General 

10 of the Department, the Special Counsel, or 

11 Congress; 

12 (B) providing information or participating 

13 as a witness in an investigation of a whistle14 blower disclosure made to the Assistant Sec15 retary for Accountability and Whistleblower 

16 Protection, the Inspector General of the De17 partment, the Special Counsel, or Congress; 

18 (C) participating in an audit or investiga19 tion by the Comptroller General of the United 

20 States; 

21 (D) refusing to perform an action that is 

22 unlawful or prohibited by the Department; or 

23 (E) engaging in communications that are 

24 related to the duties of the position or are oth25 erwise protected. 


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1 (2) Preventing or restricting an employee from 

2 making an action described in any of subparagraphs 

3 (A) through (E) of paragraph (1). 

4 (3) Conducting a negative peer review or open5 ing a retaliatory investigation because of an activity 

6 of an employee that is protected by section 2302 of 

7 title 5. 

8 (4) Requesting a contractor to carry out an ac9 tion that is prohibited by section 4705(b) or section 

10 4712(a)(1) of title 41, as the case may be. 

11 SEC. 11. RECOUPMENT OF RELOCATION EXPENSES PAID 

12 ON BEHALF OF EMPLOYEES OF DEPART13 MENT. 

14 (a) IN GENERAL.—Notwithstanding any other provi15 sion of law, the Secretary may issue an order directing 

16 an employee of the Department to repay the amount, or 

17 a portion of the amount, paid to or on behalf of the em18 ployee under title 5, United States Code, for relocation 

19 expenses, including any expenses under section 5724 or 

20 5724a of such title, if— 

21 (1) the Secretary determines that relocation ex22 penses were paid following an act of fraud or mal23 feasance that influenced the authorization of the re24 location expenses; 


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1 (2) before such repayment, the employee is af2 forded— 

3 (A) notice of the proposed order; and 

4 (B) an opportunity to respond to the pro5 posed order not later than ten business days 

6 following the receipt of such notice; and 

7 (3) the Secretary issues the order— 

8 (A) in the case of a proposed order to 

9 which an individual responds under paragraph 

10 (2)(B), not later than five business days after 

11 receiving the response of the individual; or 

12 (B) in the case of a proposed order to 

13 which an individual does not respond, not later 

14 than 15 business days after the Secretary pro15 vides notice to the individual under paragraph 

16 (2)(A). 

17 (b) APPEAL OF ORDER OF SECRETARY.—(1) Upon 

18 the issuance of an order by the Secretary under subsection 

19 (a) with respect to an individual, the individual shall have 

20 an opportunity to appeal the order to the Director of the 

21 Office of Personnel Management before the date that is 

22 seven business days after the date of such issuance. 

23 (2) The Director shall make a final decision with re24 spect to an appeal under paragraph (1) within 30 days 

25 after receiving such appeal. 


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1 (c) EFFECTIVE DATE.—This section shall apply with 

2 respect to an amount paid by the Secretary to or on behalf 

3 of an employee of the Department for relocation expenses 

4 on or after the date of the enactment of this Act. 

5 (d) CONSTRUCTION.—Nothing in this Act or the 

6 amendments made by this Act may be construed to modify 

7 the certification issued by the Office of Personnel Manage8 ment and the Office of Management and Budget regarding 

9 the performance appraisal system of the Senior Executive 

10 Service of the Department. 

11 SEC. 12. IMPROVEMENT OF TRAINING FOR SUPERVISORS. 

12 (a) IN GENERAL.—The Secretary of Education shall 

13 provide to each employee of the Department of Education 

14 who is employed as a supervisor periodic training on the 

15 following: 

16 (1) The rights of whistleblowers and how to ad17 dress a report by an employee of a hostile work envi18 ronment, reprisal, or harassment. 

19 (2) How to effectively motivate, manage, and 

20 reward the employees who report to the supervisor. 

21 (3) How to effectively manage employees who 

22 are performing at an unacceptable level and access 

23 assistance from the human resources office of the 

24 Department and the Office of the General Counsel 

25 of the Department with respect to those employees. 


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1 (b) DEFINITIONS.—In this section, the term ‘‘super2 visor’’ has the meaning given such term in section 7103(a) 

3 of title 5, United States Code. 

4 SEC. 13. ASSESSMENT AND REPORT ON EFFECT ON SENIOR 

5 EXECUTIVES AT DEPARTMENT OF EDU6 CATION. 

7 (a) IN GENERAL.—Not later than two years after the 

8 date of the enactment of this Act, the Secretary of Edu9 cation, in consultation with the Office of Management, 

10 shall— 

11 (1) measure and assess the effect of the enact12 ment of this title on the morale, engagement, hiring, 

13 promotion, retention, discipline, and productivity of 

14 individuals in senior executive positions at the De15 partment; and 

16 (2) submit to the Committee on Health, Edu17 cation, Labor, and Pensions of the Senate and the 

18 Committee on Education and the Workforce of the 

19 House of Representatives a report on the findings of 

20 the Secretary with respect to the measurement and 

21 assessment carried out under paragraph (1). 

22 (b) ELEMENTS.—The assessment required by sub23 section (a)(1) shall include the following: 

24 (1) With respect to engagement, trends in mo25 rale of individuals in senior executive positions at 


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1 the Department and individuals aspiring to senior 

2 executive positions. 

3 (2) With respect to promotions— 

4 (A) whether the Department is experi5 encing an increase or decrease in the number of 

6 employees participating in leadership develop7 ment and candidate development programs with 

8 the intention of becoming candidates for senior 

9 executive positions at the Department; and 

10 (B) trends in applications to senior execu11 tive positions at the Department. 

12 (3) With respect to retention— 

13 (A) trends in retirement rates of individ14 uals in senior executive positions at the Depart15 ment; 

16 (B) trends in quit rates of individuals in 

17 senior executive positions at the Department; 

18 (C) rates of transfer of— 

19 (i) individuals from other Federal 

20 agencies into senior executive positions at 

21 the Department; and 

22 (ii) individuals from senior executive 

23 positions at the Department to other Fed24 eral agencies; and 


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1 (D) trends in total loss rates by job func2 tion. 

3 (4) With respect to disciplinary processes— 

4 (A) regarding individuals in senior execu5 tive positions at the Department who are the 

6 subject of disciplinary action— 

7 (i) the length of the disciplinary proc8 ess in days for such individuals both before 

9 the date of the enactment of this Act and 

10 under the provisions of this Act described 

11 in subsection (a)(1); and 

12 (ii) the extent to which appeals by 

13 such individuals are upheld under such 

14 provisions as compared to before the date 

15 of the enactment of this Act; 

16 (B) the components or offices of the De17 partment which experience the greatest number 

18 of proposed adverse actions against individuals 

19 in senior executive positions at the Department 

20 and components and offices which experience 

21 the least relative to the size of the components 

22 or offices’ total number of senior executive posi23 tions at the Department; 


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1 (C) the tenure of individuals in senior ex2 ecutive positions at the Department who are the 

3 subject of disciplinary action; 

4 (D) whether the individuals in senior exec5 utive positions at the Department who are the 

6 subject of disciplinary action have previously 

7 been disciplined; and 

8 (E) the number of instances of disciplinary 

9 action taken by the Secretary against individ10 uals in senior executive positions at the Depart11 ment as compared to governmentwide discipline 

12 against individuals in Senior Executive Service 

13 positions (as defined in section 3132(a) of title 

14 5, United States Code) as a percentage of the 

15 total number of individuals in senior executive 

16 positions at the Department and Senior Execu17 tive Service positions (as so defined). 

18 (5) With respect to hiring— 

19 (A) the degree to which the skills of newly 

20 hired individuals in senior executive positions at 

21 the Department are appropriate with respect to 

22 the needs of the Department; 

23 (B) the types of senior executive positions 

24 at the Department most commonly filled under 


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1 the authorities in the provisions described in 

2 subsection (a)(1); 

3 (C) the number of senior executive posi4 tions at the Department filled by hires outside 

5 of the Department compared to hires from 

6 within the Department; 

7 (D) the length of time to fill a senior exec8 utive position at the Department and for a new 

9 hire to begin working in a new senior executive 

10 position; 

11 (E) the mission-critical deficiencies filled 

12 by newly hired individuals in senior executive 

13 positions at the Department and the connection 

14 between mission-critical deficiencies filled under 

15 the provisions described in subsection (a) and 

16 annual performance of the Department; 

17 (F) the satisfaction of applicants for senior 

18 executive positions at the Department with the 

19 hiring process, including the clarity of job an20 nouncements, reasons for withdrawal of applica21 tions, communication regarding status of appli22 cations, and timeliness of hiring decision; and 

23 (G) the satisfaction of newly hired individ24 uals in senior executive positions at the Depart25 ment with the hiring process and the process of 


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1 joining and becoming oriented with the Depart2 ment. 

3 SEC. 14. MEASUREMENT OF DEPARTMENT OF EDUCATION 

4 DISCIPLINARY PROCESS OUTCOMES AND EF5 FECTIVENESS. 

6 (a) MEASURING AND COLLECTING.— 

7 (1) IN GENERAL.—The Secretary of Education, 

8 in consultation with the Office of Management, shall 

9 measure and collect information on the outcomes of 

10 disciplinary actions carried out by the Department 

11 of Education during the three-year period ending on 

12 the date of the enactment of this Act and the effec13 tiveness of such actions. 

14 (2) ELEMENTS.—In measuring and collecting 

15 pursuant to paragraph (1), the Secretary shall meas16 ure and collect information regarding the following: 

17 (A) The average time from the initiation of 

18 an adverse action against an employee at the 

19 Department to the final resolution of that ac20 tion. 

21 (B) The number of distinct steps and lev22 els of review within the Department involved in 

23 the disciplinary process and the average length 

24 of time required to complete these steps. 


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1 (C) The rate of use of alternate discipli2 nary procedures compared to traditional dis3 ciplinary procedures and the frequency with 

4 which employees who are subject to alternative 

5 disciplinary procedures commit additional of6 fenses. 

7 (D) The number of appeals from adverse 

8 actions filed against employees of the Depart9 ment, the number of appeals upheld, and the 

10 reasons for which the appeals were upheld. 

11 (E) The use of paid administrative leave 

12 during the disciplinary process and the length 

13 of such leave. 

14 (b) REPORT.— 

15 (1) IN GENERAL.—Not later than December 31, 

16 2017, the Secretary shall submit to the appropriate 

17 committees of Congress a report on the disciplinary 

18 procedures and actions of the Department. 

19 (2) CONTENTS.—The report submitted under 

20 paragraph (1) shall include the following: 

21 (A) The information collected under sub22 section (a). 

23 (B) The findings of the Secretary with re24 spect to the measurement and collection carried 

25 out under subsection (a). 


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1 (C) An analysis of the disciplinary proce2 dures and actions of the Department. 

3 (D) Suggestions for improving the discipli4 nary procedures and actions of the Department. 

5 (E) Such other matters as the Secretary 

6 considers appropriate. 

7 (3) APPROPRIATE COMMITTEES OF CON8 GRESS.—In this subsection, the term ‘‘appropriate 

9 committees of Congress’’ means— 

10 (A) the Committee on Appropriations and 

11 the Committee on Health, Education, Labor, 

12 and Pensions of the Senate; and 

13 (B) the Committee on Appropriations and 

14 the Committee on Education and the Workforce 

15 of the House of Representatives. 

Æ 


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