I 

116TH CONGRESS 

1ST SESSION H. R. 2188 

To provide accountability and protect whistleblowers in the Department of 

Education. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 9, 2019 

Mr. ROONEY of Florida (for himself and Mr. SMUCKER) introduced the following bill; which was referred to the Committee on Education and 

Labor, and in addition to the Committee on Oversight and Reform, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide accountability and protect whistleblowers in the 

Department of Education. 

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)(10) of title 5, United 

16 States Code. 

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

18 makes a whistleblower disclosure. 

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

20 any disclosure of information by an employee of the 

21 Department or individual applying to become an em22 ployee of the Department which the employee or in23 dividual reasonably believes evidences— 

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

25 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, United States 

23 Code, or as required by any other applicable provision of 

24 Federal law. 


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

2 ensure that the Deputy Secretary has such staff, re3 sources, and access to information as may be necessary 

4 to carry out the functions of the Office. 

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

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

7 General Counsel and the Deputy Secretary may not report 

8 to the General Counsel. 

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

10 each calendar year, beginning with June 30, 2020, the 

11 Deputy Secretary shall submit to the Committee on 

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

13 the Committee on Education and Labor of the House of 

14 Representatives a report on the activities of the Office 

15 during the calendar year in which the report is submitted. 

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

17 shall include, for the period covered by the report, the fol18 lowing: 

19 (i) A full and substantive analysis of the activi20 ties of the Office, including such statistical informa21 tion as the Deputy Secretary considers appropriate. 

22 (ii) Identification of any issues reported to the 

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

24 data as the Deputy Secretary considers relevant to 


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1 such issues and any trends the Deputy Secretary 

2 may have identified with respect to such issues. 

3 (iii) Identification of such concerns as the Dep4 uty Secretary may have regarding the size, staffing, 

5 and resources of the Office and such recommenda6 tions as the Deputy Secretary may have for legisla7 tive or administrative action to address such con8 cerns. 

9 (iv) Such recommendations as the Deputy Sec10 retary may have for legislative or administrative ac11 tion to improve— 

12 (I) the process by which concerns are re13 ported to the Office; and 

14 (II) the protection of whistleblowers within 

15 the Department. 

16 (v) Such other matters as the Deputy Secretary 

17 considers appropriate regarding the functions of the 

18 Office or other matters relating to the Office. 

19 (2) If the Secretary receives a recommendation for 

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

21 take or initiate the recommended disciplinary action before 

22 the date that is 60 days after the date on which the Sec23 retary received the recommendation, the Secretary shall 

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

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1 cation and Labor of the House of Representatives a de2 tailed justification for not taking or initiating such dis3 ciplinary action. 

4 SEC. 4. PROTECTION OF WHISTLEBLOWERS AS CRITERIA 

5 IN EVALUATION OF SUPERVISORS. 

6 (a) DEVELOPMENT AND USE OF CRITERIA RE7 QUIRED.—The Secretary, in consultation with the Office 

8 of the Principal Deputy Secretary, shall develop criteria 

9 that— 

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

11 in any evaluation of the performance of a super12 visory employee; and 

13 (2) promotes the protection of whistleblowers. 

14 (b) PRINCIPLES FOR PROTECTION OF WHISTLE15 BLOWERS.—The criteria required by subsection (a) shall 

16 include principles for the protection of whistleblowers, 

17 such as the degree to which supervisory employees respond 

18 constructively when employees of the Department report 

19 concerns, take responsible action to resolve such concerns, 

20 and foster an environment in which employees of the De21 partment feel comfortable reporting concerns to super22 visory employees or to the appropriate authorities. 


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1 SEC. 5. TRAINING REGARDING WHISTLEBLOWER DISCLO2 SURES. 

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

4 two years, the Secretary, in coordination with the Whistle5 blower Protection Ombudsman designated under section 

6 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. 

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

8 training regarding whistleblower disclosures, including— 

9 (1) an explanation of each method established 

10 by law in which an employee may file a whistle11 blower disclosure; 

12 (2) the right of the employee to petition Con13 gress regarding a whistleblower disclosure in accord14 ance with section 7211 of title 5, United States 

15 Code; 

16 (3) an explanation that the employee may not 

17 be prosecuted or reprised against for disclosing in18 formation to Congress, the Inspector General, or an19 other investigatory agency in instances where such 

20 disclosure is permitted by law, including under sec21 tion 552a of title 5, United States Code (commonly 

22 referred to as the Privacy Act); 

23 (4) an explanation of the language that is re24 quired to be included in all nondisclosure policies, 

25 forms, and agreements pursuant to section 


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1 115(a)(1) of the Whistleblower Protection Enhance2 ment Act of 2012 (5 U.S.C. 2302 note); and 

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

4 reprisal for the disclosure of certain information 

5 under section 4705 or 4712 of title 41, United 

6 States Code. 

7 (b) MANNER TRAINING IS PROVIDED.—The Sec8 retary shall ensure, to the maximum extent practicable, 

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

10 person. 

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

12 every two years, the Secretary shall provide training on 

13 merit system protection in a manner that the Special 

14 Counsel certifies as being satisfactory. 

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

16 the Internet website of the Department, and display 

17 prominently at each facility of the Department, the rights 

18 of an employee to make a whistleblower disclosure, includ19 ing the information described in paragraphs (1) through 

20 (5) of subsection (a). 

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

22 SUSPENSION BASED ON PERFORMANCE OR 

23 MISCONDUCT. 

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

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1 vided in this section, reprimand or suspend, involuntarily 

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

3 senior executive position at the Department if the Sec4 retary determines that the misconduct or performance of 

5 the covered individual warrants such action. 

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

7 the Secretary may remove the individual from the civil 

8 service (as defined in section 2101(1) of title 5, United 

9 States Code). 

10 (b) RIGHTS AND PROCEDURES.—(1) A covered indi11 vidual who is the subject of an action under subsection 

12 (a) is entitled to— 

13 (A) advance notice of the action and a file con14 taining all evidence in support of the proposed ac15 tion; 

16 (B) be represented by an attorney or other rep17 resentative of the covered individual’s choice; and 

18 (C) grieve the action in accordance with an in19 ternal grievance process that the Secretary, in con20 sultation with the Office of Management, shall es21 tablish for purposes of this subsection. 

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

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

24 15 business days. 


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1 (B) The period for the response of a covered indi2 vidual to a notice under paragraph (1)(A) of an action 

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

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

5 under subsection (a) shall be issued not later than 15 busi6 ness days after notice of the action is provided to the cov7 ered individual under paragraph (1)(A). The decision shall 

8 be in writing, and shall include the specific reasons there9 for. 

10 (3) The Secretary shall ensure that the grievance 

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

12 than 21 days. 

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

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

15 shall be final and conclusive. 

16 (5) A covered individual adversely affected by a deci17 sion under paragraph (2) that is not grieved, or by a griev18 ance decision under paragraph (3), may obtain judicial re19 view of such decision. 

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

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

22 may set aside any Department action found to be— 

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

24 or otherwise not in accordance with a provision of 

25 law; 


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1 (B) obtained without procedures required by a 

2 provision of law having been followed; or 

3 (C) unsupported by substantial evidence. 

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

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

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

7 apply to an action under subsection (a). 

8 (d) DEFINITIONS.—In this section— 

9 (1) the term ‘‘covered individual’’ means— 

10 (A) a career appointee (as that term is de11 fined in section 3132(a)(4) of title 5, United 

12 States Code); or 

13 (B) any individual who occupies an admin14 istrative or executive position and who was ap15 pointed under title II of the Department of 

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

17 seq.); and 

18 (2) the term ‘‘misconduct’’ includes neglect of 

19 duty, malfeasance, or failure to accept a directed re20 assignment or to accompany a position in a transfer 

21 of function. 


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1 SEC. 7. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPEN2 SION BASED ON PERFORMANCE OR MIS3 CONDUCT. 

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

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

6 suspend a covered individual who is an employee of the 

7 Department if the Secretary determines the performance 

8 or misconduct of the covered individual warrants such re9 moval, demotion, or suspension. 

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

11 such a covered individual, the Secretary may— 

12 (A) remove the covered individual from the civil 

13 service (as defined in section 2101(1) of title 5, 

14 United States Code); 

15 (B) demote the covered individual by means of 

16 a reduction in grade for which the covered individual 

17 is qualified, that the Secretary determines is appro18 priate, and that reduces the annual rate of pay of 

19 the covered individual; or 

20 (C) suspend the covered individual. 

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

22 Notwithstanding any other provision of law, any covered 

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

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

25 annual rate of pay applicable to such grade. 


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

2 placed on administrative leave during the period during 

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

4 and may only receive pay if the covered individual reports 

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

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

7 (B) If a covered individual so demoted does not re8 port for duty or receive approval to use accrued unused 

9 leave, such covered individual shall not receive pay or 

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

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

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

13 or suspension under this section may not exceed 15 busi14 ness days. 

15 (B) The period for the response of a covered indi16 vidual to a notice of a proposed removal, demotion, or sus17 pension under this section shall be 7 business days. 

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

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

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

21 (D) The procedures in this subsection shall supersede 

22 any collective bargaining agreement to the extent that 

23 such agreement is inconsistent with such procedures. 

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1 tion not later than 15 business days after the Secretary 

2 provides notice, including a file containing all the evidence 

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

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

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

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

8 United States Code, shall not apply to a removal, demo9 tion, or suspension under this section. 

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

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

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

13 be appealed to the Merit Systems Protection Board, which 

14 shall refer such appeal to an administrative judge pursu15 ant to section 7701(b)(1) of title 5, United States Code. 

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

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

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

19 of such removal, demotion, or suspension. 

20 (d) EXPEDITED REVIEW.—(1) Upon receipt of an ap21 peal under subsection (c)(4)(A), the administrative judge 

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

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

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

25 after the date of the appeal. 


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

2 5, United States Code, the administrative judge shall up3 hold the decision of the Secretary to remove, demote, or 

4 suspend an employee under subsection (a) if the decision 

5 is supported by substantial evidence. 

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

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

8 is supported by substantial evidence, the administrative 

9 judge shall not mitigate the penalty prescribed by the Sec10 retary. 

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

12 paragraph (1) may be appealed to the Merit Systems Pro13 tection Board. 

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

15 United States Code, the Merit Systems Protection Board 

16 shall uphold the decision of the Secretary to remove, de17 mote, or suspend an employee under subsection (a) if the 

18 decision is supported by substantial evidence. 

19 (C) Notwithstanding title 5, United States Code, or 

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

21 is supported by substantial evidence, the Merit Systems 

22 Protection Board shall not mitigate the penalty prescribed 

23 by the Secretary. 

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

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


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1 requirement under paragraph (1), the Merit Systems Pro2 tection Board shall, not later than 14 business days after 

3 the expiration of the 180-day period, submit to the Com4 mittee on Health, Education, Labor, and Pensions of the 

5 Senate and the Committee on Education and Labor of the 

6 House of Representatives a report that explains the rea7 sons why a decision was not issued in accordance with 

8 such requirement. 

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

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

11 Court of Appeals for the Federal Circuit pursuant to sec12 tion 7703 of title 5, United States Code, or to any court 

13 of appeals of competent jurisdiction pursuant to sub14 section (b)(1)(B) of such section. 

15 (6) The Merit Systems Protection Board may not 

16 stay any removal or demotion under this section, except 

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

18 Code. 

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

20 a covered individual appeals a removal from the civil serv21 ice under subsection (c) and ending on the date that the 

22 United States Court of Appeals for the Federal Circuit 

23 issues a final decision on such appeal, such covered indi24 vidual may not receive any pay, awards, bonuses, incen25 tives, allowances, differentials, student loan repayments, 


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1 special payments, or benefits related to the employment 

2 of the individual by the Department. 

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

4 shall provide to the Merit Systems Protection Board such 

5 information and assistance as may be necessary to ensure 

6 an appeal under this subsection is expedited. 

7 (9) If an employee prevails on appeal under this sec8 tion, the employee shall be entitled to backpay (as pro9 vided in section 5596 of title 5, United States Code). 

10 (10) If an employee who is subject to a collective bar11 gaining agreement chooses to grieve an action taken under 

12 this section through a grievance procedure provided under 

13 the collective bargaining agreement, the timelines and pro14 cedures set forth in subsection (c) and this subsection 

15 shall apply. 

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

17 of a covered individual seeking corrective action (or on be18 half of whom corrective action is sought) from the Office 

19 of Special Counsel based on an alleged prohibited per20 sonnel practice described in section 2302(b) of title 5, 

21 United States Code, the Secretary may not remove, de22 mote, or suspend such covered individual under subsection 

23 (a) without the approval of the Special Counsel under sec24 tion 1214(f) of such title. 


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

2 a whistleblower disclosure to the Office of Management 

3 of the Department of Education, the Secretary may not 

4 remove, demote, or suspend such covered individual under 

5 subsection (a) until— 

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

7 determines to refer the whistleblower disclosure 

8 under section 3(a)(1)(D) to an office or other inves9 tigative entity, a final decision with respect to the 

10 whistleblower disclosure has been made by such of11 fice or other investigative entity; or 

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

13 determines not to the refer the whistleblower disclo14 sure under such section, the Assistant Secretary 

15 makes such determination. 

16 (f) TERMINATION OF INVESTIGATIONS BY OFFICE OF

17 SPECIAL COUNSEL.—(1) Notwithstanding any other pro18 vision of law, the Special Counsel (established by section 

19 1211 of title 5, United States Code) may terminate an 

20 investigation of a prohibited personnel practice alleged by 

21 an employee or former employee of the Department after 

22 the Special Counsel provides to the employee or former 

23 employee a written statement of the reasons for the termi24 nation of the investigation. 


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

2 in any judicial or administrative proceeding without the 

3 consent of such employee or former employee. 

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

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

6 maximum extent feasible, the Secretary shall fill the va7 cancy arising as a result of such removal or demotion. 

8 (h) DEFINITIONS.—In this section— 

9 (1) the term ‘‘covered individual’’ means an in10 dividual occupying a position at the Department, but 

11 does not include— 

12 (A) an individual occupying a senior execu13 tive position at the Department; 

14 (B) an individual appointed under title II 

15 of the Department of Education Organization 

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

17 (C) an individual who has not completed a 

18 probationary or trial period; or 

19 (D) a political appointee; 

20 (2) the term ‘‘suspend’’ means the placing of an 

21 employee, for disciplinary reasons, in a temporary 

22 status without duties and pay for a period in excess 

23 of 14 days; 


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1 (3) the term ‘‘grade’’ has the meaning given 

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

3 States Code; 

4 (4) the term ‘‘misconduct’’ includes neglect of 

5 duty, malfeasance, or failure to accept a directed re6 assignment or to accompany a position in a transfer 

7 of function; and 

8 (5) the term ‘‘political appointee’’ means an in9 dividual who is— 

10 (A) employed in a position described under 

11 sections 5312 through 5316 of title 5, United 

12 States Code (relating to the Executive Sched13 ule); 

14 (B) a limited term appointee, limited emer15 gency appointee, or noncareer appointee in the 

16 Senior Executive Service, as defined under 

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

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

19 or 

20 (C) employed in a position of a confidential 

21 or policy-determining character under schedule 

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

23 Federal Regulations, or successor regulation. 


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1 SEC. 8. REDUCTION OF BENEFITS OF EMPLOYEES CON2 VICTED OF CERTAIN CRIMES. 

3 (a) REDUCTION OF ANNUITY FOR REMOVED EM4 PLOYEE.—(1) The Secretary shall order that the covered 

5 service of an employee of the Department removed from 

6 a position for performance or misconduct under any provi7 sion of law shall not be taken into account for purposes 

8 of calculating an annuity with respect to such individual 

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

10 Code, if— 

11 (A) the Secretary determines that the individual 

12 is 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) Any individual with respect to whom an annuity 

7 is reduced under this subsection may appeal the reduction 

8 to the Director of the Office of Personnel Management 

9 pursuant to such regulations as the Director may pre10 scribe for purposes of this subsection. 

11 (b) REDUCTION OF ANNUITY FOR RETIRED EM12 PLOYEE.—(1) The Secretary may order that the covered 

13 service of an individual who the Secretary proposes to re14 move for performance or misconduct under any provision 

15 of law but who leaves employment at the Department prior 

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

17 action shall not be taken into account for purposes of cal18 culating an annuity with respect to such individual under 

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

20 if— 

21 (A) the Secretary determines that individual is 

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

23 that influenced the individual’s performance while 

24 employed in the position; 


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

2 afforded— 

3 (i) notice of the proposed order; and 

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

6 following receipt of such notice; and 

7 (C) the Secretary issues the order— 

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

9 an individual responds under subparagraph 

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

11 receiving the response of the individual; or 

12 (ii) 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 subpara16 graph (B)(i). 

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

18 under paragraph (1), the individual shall have an oppor19 tunity to appeal the order to the Director of the Office 

20 of Personnel Management before the date that is seven 

21 business days after the date of such issuance. 

22 (3) The Director of the Office of Personnel Manage23 ment shall make a final decision with respect to an appeal 

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

25 the appeal. 


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1 (c) ADMINISTRATIVE REQUIREMENTS.—Not later 

2 than 37 business days after the Secretary issues a final 

3 order under subsection (a) or (b) with respect to an indi4 vidual, the Director of the Office of Personnel Manage5 ment shall recalculate the annuity of the individual. 

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

7 with respect to whom an annuity is reduced under sub8 section (a) or (b) shall be entitled to be paid so much of 

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

10 period of covered service. 

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

12 Secretary, in consultation with the Director of the Office 

13 of Personnel Management, shall prescribe regulations that 

14 may provide for the payment to the spouse or children 

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

16 any amounts which (but for this subsection) would other17 wise have been nonpayable by reason of such subsections. 

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

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

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

21 may be. 

22 (f) DEFINITIONS.—In this section— 

23 (1) the term ‘‘covered service’’ means, with re24 spect to an individual subject to a removal for per25 formance or misconduct under section 4 or any 


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1 other provision of law, the period of service begin2 ning on the date that the Secretary determines 

3 under such applicable provision that the individual 

4 engaged in activity that gave rise to such action and 

5 ending on the date that the individual is removed 

6 from or leaves a position of employment at the De7 partment prior to the issuance of a final decision 

8 with respect to such action; 

9 (2) the term ‘‘lump-sum credit’’ has the mean10 ing given such term in section 8331(8) or section 

11 8401(19) of title 5, United States Code, as the case 

12 may be; and 

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

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

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

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

17 EMPLOYEES OF DEPARTMENT. 

18 (a) IN GENERAL.—Notwithstanding any other provi19 sion of law, the Secretary may issue an order directing 

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

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

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

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

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

25 1018(d)(5)(B)), or another provision of Federal law, if— 


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1 (1) the Secretary determines that the individual 

2 engaged in misconduct or poor performance prior to 

3 payment of the award or bonus, and that such 

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

5 or in part, had the misconduct or poor performance 

6 been known prior to payment; 

7 (2) before such repayment, the employee is af8 forded— 

9 (A) notice of the proposed order; and 

10 (B) an opportunity to respond to the pro11 posed order by not later than 10 business days 

12 after the receipt of such notice; and 

13 (3) the Secretary issues the order— 

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

15 which an individual responds under paragraph 

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

17 receiving the response of the individual; or 

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

19 which an individual does not respond, not later 

20 than 15 business days after the Secretary pro21 vides notice to the individual under paragraph 

22 (2)(A). 

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

24 the issuance of an order by the Secretary under subsection 

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


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

2 Office of Personnel Management before the date that is 

3 seven business days after the date of such issuance. 

4 (2) The Director shall make a final decision with re5 spect to an appeal under paragraph (1) within 30 business 

6 days after receiving such appeal. 

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

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

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

10 the enactment of this Act. 

11 SEC. 10. ADVERSE ACTIONS AGAINST SUPERVISORY EM12 PLOYEES WHO COMMIT PROHIBITED PER13 SONNEL ACTIONS RELATING TO WHISTLE14 BLOWER COMPLAINTS. 

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

16 (2), the Secretary shall carry out the following adverse ac17 tions against supervisory employees (as defined in section 

18 7103(a) of title 5, United States Code) whom the Sec19 retary, an administrative judge, the Merit Systems Protec20 tion Board, the Office of Special Counsel, an adjudicating 

21 body provided under a union contract, a Federal judge, 

22 or the Inspector General of the Department determines 

23 committed a prohibited personnel action described in sub24 section (c): 


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

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

3 not more than removal. 

4 (B) With respect to the second offense, re5 moval. 

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

7 under paragraph (1) is proposed is entitled to written no8 tice. 

9 (B)(i) An employee who is notified under subpara10 graph (A) of being the subject of a proposed adverse ac11 tion under paragraph (1) is entitled to 10 days following 

12 such notification to answer and furnish evidence in sup13 port of the answer. 

14 (ii) If the employee does not furnish any such evi15 dence as described in clause (i) or if the Secretary deter16 mines that such evidence is not sufficient to reverse the 

17 determination to propose the adverse action, the Secretary 

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

19 period. 

20 (C) Paragraphs (1) and (2) of subsection (b) of sec21 tion 7513 of title 5, United States Code, subsection (c) 

22 of such section, paragraphs (1) and (2) of subsection (b) 

23 of section 7543 of such title, and subsection (c) of such 

24 section shall not apply with respect to an adverse action 

25 carried out under paragraph (1). 


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1 (b) LIMITATION ON OTHER ADVERSE ACTIONS.— 

2 With respect to a prohibited personnel action described in 

3 subsection (c), if the Secretary carries out an adverse ac4 tion against a supervisory employee, the Secretary may 

5 carry out an additional adverse action under this section 

6 based on the same prohibited personnel action if the total 

7 severity of the adverse actions do not exceed the level spec8 ified in subsection (a). 

9 (c) PROHIBITED PERSONNEL ACTION DESCRIBED.— 

10 A prohibited personnel action described in this subsection 

11 is any of the following actions: 

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

13 in violation of section 2302 of title 5, United States 

14 Code, against an employee relating to the em15 ployee— 

16 (A) making a whistleblower disclosure to 

17 the Assistant Secretary for Accountability and 

18 Whistleblower Protection, the Inspector General 

19 of the Department, the Special Counsel, or 

20 Congress; 

21 (B) providing information or participating 

22 as a witness in an investigation of a whistle23 blower disclosure made to the Assistant Sec24 retary for Accountability and Whistleblower 


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1 Protection, the Inspector General of the De2 partment, the Special Counsel, or Congress; 

3 (C) participating in an audit or investiga4 tion by the Comptroller General of the United 

5 States; 

6 (D) refusing to perform an action that is 

7 unlawful or prohibited by the Department; or 

8 (E) engaging in communications that are 

9 related to the duties of the position or are oth10 erwise protected. 

11 (2) Preventing or restricting an employee from 

12 making an action described in any of subparagraphs 

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

14 (3) Conducting a negative peer review or open15 ing a retaliatory investigation because of an activity 

16 of an employee that is protected by section 2302 of 

17 title 5, United States Code. 

18 (4) Requesting a contractor to carry out an ac19 tion that is prohibited by section 4705(b) or section 

20 4712(a)(1) of title 41, as the case may be. 

21 SEC. 11. RECOUPMENT OF RELOCATION EXPENSES PAID 

22 ON BEHALF OF EMPLOYEES OF DEPART23 MENT. 

24 (a) IN GENERAL.—Notwithstanding any other provi25 sion of law, the Secretary may issue an order directing 


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

2 a portion of the amount, paid to or on behalf of the em3 ployee under title 5, United States Code, for relocation 

4 expenses, including any expenses under section 5724 or 

5 5724a of such title, if— 

6 (1) the Secretary determines that relocation ex7 penses were paid following an act of fraud or mal8 feasance that influenced the authorization of the re9 location expenses; 

10 (2) before such repayment, the employee is af11 forded— 

12 (A) notice of the proposed order; and 

13 (B) an opportunity to respond to the pro14 posed order not later than ten business days 

15 following the receipt of such notice; and 

16 (3) the Secretary issues the order— 

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

18 which an individual responds under paragraph 

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

20 receiving the response of the individual; or 

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

22 which an individual does not respond, not later 

23 than 15 business days after the Secretary pro24 vides notice to the individual under paragraph 

25 (2)(A). 


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

2 the issuance of an order by the Secretary under subsection 

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

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

5 Office of Personnel Management before the date that is 

6 seven business days after the date of such issuance. 

7 (2) The Director shall make a final decision with re8 spect to an appeal under paragraph (1) within 30 days 

9 after receiving such appeal. 

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

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

12 of an employee of the Department for relocation expenses 

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

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

15 amendments made by this Act may be construed to modify 

16 the certification issued by the Office of Personnel Manage17 ment and the Office of Management and Budget regarding 

18 the performance appraisal system of the Senior Executive 

19 Service of the Department. 

20 SEC. 12. IMPROVEMENT OF TRAINING FOR SUPERVISORS. 

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

22 provide to each employee of the Department of Education 

23 who is employed as a supervisor periodic training on the 

24 following: 


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1 (1) The rights of whistleblowers and how to ad2 dress a report by an employee of a hostile work envi3 ronment, reprisal, or harassment. 

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

5 reward the employees who report to the supervisor. 

6 (3) How to effectively manage employees who 

7 are performing at an unacceptable level and access 

8 assistance from the human resources office of the 

9 Department and the Office of the General Counsel 

10 of the Department with respect to those employees. 

11 (b) DEFINITIONS.—In this section, the term ‘‘super12 visor’’ has the meaning given such term in section 7103(a) 

13 of title 5, United States Code. 

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

15 EXECUTIVES AT DEPARTMENT OF EDU16 CATION. 

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

18 date of the enactment of this Act, the Secretary of Edu19 cation, in consultation with the Office of Management, 

20 shall— 

21 (1) measure and assess the effect of the enact22 ment of this Act on the morale, engagement, hiring, 

23 promotion, retention, discipline, and productivity of 

24 individuals in senior executive positions at the De25 partment; and 


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1 (2) submit to the Committee on Health, Edu2 cation, Labor, and Pensions of the Senate and the 

3 Committee on Education and Labor of the House of 

4 Representatives a report on the findings of the Sec5 retary with respect to the measurement and assess6 ment carried out under paragraph (1). 

7 (b) ELEMENTS.—The assessment required by sub8 section (a)(1) shall include the following: 

9 (1) With respect to engagement, trends in mo10 rale of individuals in senior executive positions at 

11 the Department and individuals aspiring to senior 

12 executive positions. 

13 (2) With respect to promotions— 

14 (A) whether the Department is experi15 encing an increase or decrease in the number of 

16 employees participating in leadership develop17 ment and candidate development programs with 

18 the intention of becoming candidates for senior 

19 executive positions at the Department; and 

20 (B) trends in applications to senior execu21 tive positions at the Department. 

22 (3) With respect to retention— 

23 (A) trends in retirement rates of individ24 uals in senior executive positions at the Depart25 ment; 


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1 (B) trends in quit rates of individuals in 

2 senior executive positions at the Department; 

3 (C) rates of transfer of— 

4 (i) individuals from other Federal 

5 agencies into senior executive positions at 

6 the Department; and 

7 (ii) individuals from senior executive 

8 positions at the Department to other Fed9 eral agencies; and 

10 (D) trends in total loss rates by job func11 tion. 

12 (4) With respect to disciplinary processes— 

13 (A) regarding individuals in senior execu14 tive positions at the Department who are the 

15 subject of disciplinary action— 

16 (i) the length of the disciplinary proc17 ess in days for such individuals both before 

18 the date of the enactment of this Act and 

19 under the provisions of this Act described 

20 in subsection (a)(1); and 

21 (ii) the extent to which appeals by 

22 such individuals are upheld under such 

23 provisions as compared to before the date 

24 of the enactment of this Act; 


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1 (B) the components or offices of the De2 partment which experience the greatest number 

3 of proposed adverse actions against individuals 

4 in senior executive positions at the Department 

5 and components and offices which experience 

6 the least relative to the size of the components 

7 or offices’ total number of senior executive posi8 tions at the Department; 

9 (C) the tenure of individuals in senior ex10 ecutive positions at the Department who are the 

11 subject of disciplinary action; 

12 (D) whether the individuals in senior exec13 utive positions at the Department who are the 

14 subject of disciplinary action have previously 

15 been disciplined; and 

16 (E) the number of instances of disciplinary 

17 action taken by the Secretary against individ18 uals in senior executive positions at the Depart19 ment as compared to governmentwide discipline 

20 against individuals in Senior Executive Service 

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

22 5, United States Code) as a percentage of the 

23 total number of individuals in senior executive 

24 positions at the Department and Senior Execu25 tive Service positions (as so defined). 


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1 (5) With respect to hiring— 

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

3 hired individuals in senior executive positions at 

4 the Department are appropriate with respect to 

5 the needs of the Department; 

6 (B) the types of senior executive positions 

7 at the Department most commonly filled under 

8 the authorities in the provisions described in 

9 subsection (a)(1); 

10 (C) the number of senior executive posi11 tions at the Department filled by hires outside 

12 of the Department compared to hires from 

13 within the Department; 

14 (D) the length of time to fill a senior exec15 utive position at the Department and for a new 

16 hire to begin working in a new senior executive 

17 position; 

18 (E) the mission-critical deficiencies filled 

19 by newly hired individuals in senior executive 

20 positions at the Department and the connection 

21 between mission-critical deficiencies filled under 

22 the provisions described in subsection (a) and 

23 annual performance of the Department; 

24 (F) the satisfaction of applicants for senior 

25 executive positions at the Department with the 


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1 hiring process, including the clarity of job an2 nouncements, reasons for withdrawal of applica3 tions, communication regarding status of appli4 cations, and timeliness of hiring decision; and 

5 (G) the satisfaction of newly hired individ6 uals in senior executive positions at the Depart7 ment with the hiring process and the process of 

8 joining and becoming oriented with the Depart9 ment. 

10 SEC. 14. MEASUREMENT OF DEPARTMENT OF EDUCATION 

11 DISCIPLINARY PROCESS OUTCOMES AND EF12 FECTIVENESS. 

13 (a) MEASURING AND COLLECTING.— 

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

15 in consultation with the Office of Management, shall 

16 measure and collect information on the outcomes of 

17 disciplinary actions carried out by the Department 

18 of Education during the three-year period ending on 

19 the date of the enactment of this Act and the effec20 tiveness of such actions. 

21 (2) ELEMENTS.—In measuring and collecting 

22 pursuant to paragraph (1), the Secretary shall meas23 ure and collect information regarding the following: 

24 (A) The average time from the initiation of 

25 an adverse action against an employee at the 


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1 Department to the final resolution of that ac2 tion. 

3 (B) The number of distinct steps and lev4 els of review within the Department involved in 

5 the disciplinary process and the average length 

6 of time required to complete these steps. 

7 (C) The rate of use of alternate discipli8 nary procedures compared to traditional dis9 ciplinary procedures and the frequency with 

10 which employees who are subject to alternative 

11 disciplinary procedures commit additional of12 fenses. 

13 (D) The number of appeals from adverse 

14 actions filed against employees of the Depart15 ment, the number of appeals upheld, and the 

16 reasons for which the appeals were upheld. 

17 (E) The use of paid administrative leave 

18 during the disciplinary process and the length 

19 of such leave. 

20 (b) REPORT.— 

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

22 2019, the Secretary shall submit to the appropriate 

23 committees of Congress a report on the disciplinary 

24 procedures and actions of the Department. 


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1 (2) CONTENTS.—The report submitted under 

2 paragraph (1) shall include the following: 

3 (A) The information collected under sub4 section (a). 

5 (B) The findings of the Secretary with re6 spect to the measurement and collection carried 

7 out under subsection (a). 

8 (C) An analysis of the disciplinary proce9 dures and actions of the Department. 

10 (D) Suggestions for improving the discipli11 nary procedures and actions of the Department. 

12 (E) Such other matters as the Secretary 

13 considers appropriate. 

14 (3) APPROPRIATE COMMITTEES OF CON15 GRESS.—In this subsection, the term ‘‘appropriate 

16 committees of Congress’’ means— 

17 (A) the Committee on Appropriations and 

18 the Committee on Health, Education, Labor, 

19 and Pensions of the Senate; and 

20 (B) the Committee on Appropriations and 

21 the Committee on Education and Labor of the 

22 House of Representatives. 

Æ 


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