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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2188 Introduced in House (IH)]

<DOC>

116th CONGRESS
  1st Session
                                H. R. 2188

To provide accountability and protect whistleblowers in the Department 
                             of Education.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 9, 2019

  Mr. Rooney of Florida (for himself and Mr. Smucker) introduced the 
 following bill; which was referred to the Committee on Education and 
Labor, and in addition to the Committee on Oversight and Reform, for a 
 period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL

 
To provide accountability and protect whistleblowers in the Department 
                             of Education.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

SEC. 2. DEFINITIONS.

    In this Act:
            (1) The term ``Department'' means the Department of 
        Education.
            (2) The term ``Deputy Secretary'' means the Deputy 
        Secretary of Education.
            (3) The term ``Office'' means the Office of Management of 
        the Department of Education.
            (4) The term ``Secretary'' means the Secretary of 
        Education.
            (5) The term ``senior executive position at the 
        Department'' means an individual appointed under section 401(d) 
        of the Department of Education Organization Act (20 U.S.C. 
        3461).
            (6) The term ``supervisory employee'' means an employee of 
        the Department who is a supervisor as defined in section 
        7103(a)(10) of title 5, United States Code.
            (7) The term ``whistleblower'' means one who makes a 
        whistleblower disclosure.
            (8) The term ``whistleblower disclosure'' means any 
        disclosure of information by an employee of the Department or 
        individual applying to become an employee of the Department 
        which the employee or individual reasonably believes 
        evidences--
                    (A) a violation of a law, rule, or regulation; or
                    (B) gross mismanagement, a gross waste of funds, an 
                abuse of authority, or a substantial and specific 
                danger to public health or safety.

SEC. 3. OFFICE OF MANAGEMENT.

    (a) Functions.--(1) In addition to any other functions, the 
functions of the Office are as follows:
            (A) Advising the Secretary on all matters of the Department 
        relating to accountability, including accountability of 
        employees of the Department, retaliation against 
        whistleblowers, and such matters as the Secretary considers 
        similar and affect public trust at the Department.
            (B) Issuing reports and providing recommendations related 
        to the duties described in subparagraph (A).
            (C) Receiving whistleblower disclosures.
            (D) Referring whistleblower disclosures received under 
        subparagraph (C) for investigation to the Office of Inspector 
        General, or other investigative entity, as appropriate, if the 
        Deputy Secretary has reason to believe the whistleblower 
        disclosure is evidence of a violation of a provision of law, 
        mismanagement, gross waste of funds, or an abuse of authority.
            (E) Receiving and referring disclosures from the Special 
        Counsel for the Inspector General of the Department, or such 
        other person with investigatory authority, as the Deputy 
        Secretary considers appropriate.
            (F) Recording, tracking, reviewing, and confirming 
        implementation of recommendations from audits and 
        investigations carried out by the Inspector General of the 
        Department, the Special Counsel, and the Comptroller General of 
        the United States, including the imposition of disciplinary 
        actions and other corrective actions contained in such 
        recommendations.
            (G) Analyzing data from the Office and the Office of 
        Inspector General telephone hotlines, other whistleblower 
        disclosures, disaggregated by facility and area of health care 
        if appropriate, and relevant audits and investigations to 
        identify trends and issue reports to the Secretary based on 
        analysis conducted under this subparagraph.
            (H) Receiving, reviewing, and investigating allegations of 
        misconduct, retaliation, or poor performance involving--
                    (i) an individual in a senior executive position at 
                the Department;
                    (ii) an individual employed in a confidential, 
                policy-making, policy-determining, or policy-advocating 
                position at the Department; or
                    (iii) a supervisory employee, if the allegation 
                involves retaliation against an employee for making a 
                whistleblower disclosure.
            (I) Making such recommendations to the Secretary for 
        disciplinary action as the Deputy Secretary considers 
        appropriate after substantiating any allegation of misconduct 
        or poor performance pursuant to an investigation carried out as 
        described in subparagraph (F) or (H).
    (2) In carrying out the functions of the Office, the Deputy 
Secretary shall ensure that the Office maintains a toll-free telephone 
number and Internet website to receive anonymous whistleblower 
disclosures.
    (3) In any case in which the Deputy Secretary receives a 
whistleblower disclosure from an employee of the Department under 
paragraph (1)(C), the Deputy Secretary may not disclose the identity of 
the employee without the consent of the employee, except in accordance 
with the provisions of section 552a of title 5, United States Code, or 
as required by any other applicable provision of Federal law.
    (b) Staff and Resources.--The Secretary shall ensure that the 
Deputy Secretary has such staff, resources, and access to information 
as may be necessary to carry out the functions of the Office.
    (c) Relation to Office of General Counsel.--The Office shall not be 
an element of the Office of the General Counsel and the Deputy 
Secretary may not report to the General Counsel.
    (d) Reports.--(1)(A) Not later than June 30 of each calendar year, 
beginning with June 30, 2020, the Deputy Secretary shall submit to the 
Committee on Health, Education, Labor, and Pensions of the Senate and 
the Committee on Education and Labor of the House of Representatives a 
report on the activities of the Office during the calendar year in 
which the report is submitted.
    (B) Each report submitted under subparagraph (A) shall include, for 
the period covered by the report, the following:
            (i) A full and substantive analysis of the activities of 
        the Office, including such statistical information as the 
        Deputy Secretary considers appropriate.
            (ii) Identification of any issues reported to the Secretary 
        under subsection (b)(1)(G), including such data as the Deputy 
        Secretary considers relevant to such issues and any trends the 
        Deputy Secretary may have identified with respect to such 
        issues.
            (iii) Identification of such concerns as the Deputy 
        Secretary may have regarding the size, staffing, and resources 
        of the Office and such recommendations as the Deputy Secretary 
        may have for legislative or administrative action to address 
        such concerns.
            (iv) Such recommendations as the Deputy Secretary may have 
        for legislative or administrative action to improve--
                    (I) the process by which concerns are reported to 
                the Office; and
                    (II) the protection of whistleblowers within the 
                Department.
            (v) Such other matters as the Deputy Secretary considers 
        appropriate regarding the functions of the Office or other 
        matters relating to the Office.
    (2) If the Secretary receives a recommendation for disciplinary 
action under subsection (b)(1)(I) and does not take or initiate the 
recommended disciplinary action before the date that is 60 days after 
the date on which the Secretary received the recommendation, the 
Secretary shall submit to the Committee on Health, Education, Labor, 
and Pensions of the Senate and the Committee on Education and Labor of 
the House of Representatives a detailed justification for not taking or 
initiating such disciplinary action.

SEC. 4. PROTECTION OF WHISTLEBLOWERS AS CRITERIA IN EVALUATION OF 
              SUPERVISORS.

    (a) Development and Use of Criteria Required.--The Secretary, in 
consultation with the Office of the Principal Deputy Secretary, shall 
develop criteria that--
            (1) the Secretary shall use as a critical element in any 
        evaluation of the performance of a supervisory employee; and
            (2) promotes the protection of whistleblowers.
    (b) Principles for Protection of Whistleblowers.--The criteria 
required by subsection (a) shall include principles for the protection 
of whistleblowers, such as the degree to which supervisory employees 
respond constructively when employees of the Department report 
concerns, take responsible action to resolve such concerns, and foster 
an environment in which employees of the Department feel comfortable 
reporting concerns to supervisory employees or to the appropriate 
authorities.

SEC. 5. TRAINING REGARDING WHISTLEBLOWER DISCLOSURES.

    (a) Training.--Not less frequently than once every two years, the 
Secretary, in coordination with the Whistleblower Protection Ombudsman 
designated under section 3(d)(1)(C) of the Inspector General Act of 
1978 (5 U.S.C. App.), shall provide to each employee of the Department 
training regarding whistleblower disclosures, including--
            (1) an explanation of each method established by law in 
        which an employee may file a whistleblower disclosure;
            (2) the right of the employee to petition Congress 
        regarding a whistleblower disclosure in accordance with section 
        7211 of title 5, United States Code;
            (3) an explanation that the employee may not be prosecuted 
        or reprised against for disclosing information to Congress, the 
        Inspector General, or another investigatory agency in instances 
        where such disclosure is permitted by law, including under 
        section 552a of title 5, United States Code (commonly referred 
        to as the Privacy Act);
            (4) an explanation of the language that is required to be 
        included in all nondisclosure policies, forms, and agreements 
        pursuant to section 115(a)(1) of the Whistleblower Protection 
        Enhancement Act of 2012 (5 U.S.C. 2302 note); and
            (5) the right of contractors to be protected from reprisal 
        for the disclosure of certain information under section 4705 or 
        4712 of title 41, United States Code.
    (b) Manner Training Is Provided.--The Secretary shall ensure, to 
the maximum extent practicable, that training provided under subsection 
(a) is provided in person.
    (c) Certification.--Not less frequently than once every two years, 
the Secretary shall provide training on merit system protection in a 
manner that the Special Counsel certifies as being satisfactory.
    (d) Publication.--The Secretary shall publish on the Internet 
website of the Department, and display prominently at each facility of 
the Department, the rights of an employee to make a whistleblower 
disclosure, including the information described in paragraphs (1) 
through (5) of subsection (a).

SEC. 6. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON 
              PERFORMANCE OR MISCONDUCT.

    (a) Authority.--(1) The Secretary of Education, in consultation 
with the Office of Management, may, as provided in this section, 
reprimand or suspend, involuntarily reassign, demote, or remove a 
covered individual from a senior executive position at the Department 
if the Secretary determines that the misconduct or performance of the 
covered individual warrants such action.
    (2) If the Secretary so removes such an individual, the Secretary 
may remove the individual from the civil service (as defined in section 
2101(1) of title 5, United States Code).
    (b) Rights and Procedures.--(1) A covered individual who is the 
subject of an action under subsection (a) is entitled to--
            (A) advance notice of the action and a file containing all 
        evidence in support of the proposed action;
            (B) be represented by an attorney or other representative 
        of the covered individual's choice; and
            (C) grieve the action in accordance with an internal 
        grievance process that the Secretary, in consultation with the 
        Office of Management, shall establish for purposes of this 
        subsection.
    (2)(A) The aggregate period for notice, response, and decision on 
an action under subsection (a) may not exceed 15 business days.
    (B) The period for the response of a covered individual to a notice 
under paragraph (1)(A) of an action under subsection (a) shall be 7 
business days.
    (C) A decision under this paragraph on an action under subsection 
(a) shall be issued not later than 15 business days after notice of the 
action is provided to the covered individual under paragraph (1)(A). 
The decision shall be in writing, and shall include the specific 
reasons therefor.
    (3) The Secretary shall ensure that the grievance process 
established under paragraph (1)(C) takes fewer than 21 days.
    (4) A decision under paragraph (2) that is not grieved, and a 
grievance decision under paragraph (3), shall be final and conclusive.
    (5) A covered individual adversely affected by a decision under 
paragraph (2) that is not grieved, or by a grievance decision under 
paragraph (3), may obtain judicial review of such decision.
    (6) In any case in which judicial review is sought under paragraph 
(5), the court shall review the record and may set aside any Department 
action found to be--
            (A) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with a provision of law;
            (B) obtained without procedures required by a provision of 
        law having been followed; or
            (C) unsupported by substantial evidence.
    (c) Relation to Other Provisions of Law.--Section 3592(b)(1) of 
title 5, United States Code, and the procedures under section 7543(b) 
of such title do not apply to an action under subsection (a).
    (d) Definitions.--In this section--
            (1) the term ``covered individual'' means--
                    (A) a career appointee (as that term is defined in 
                section 3132(a)(4) of title 5, United States Code); or
                    (B) any individual who occupies an administrative 
                or executive position and who was appointed under title 
                II of the Department of Education Organization Act (20 
                U.S.C. 3411 et seq.); and
            (2) the term ``misconduct'' includes neglect of duty, 
        malfeasance, or failure to accept a directed reassignment or to 
        accompany a position in a transfer of function.

SEC. 7. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON 
              PERFORMANCE OR MISCONDUCT.

    (a) In General.--(1) The Secretary, in consultation with the Office 
of Management, may remove, demote, or suspend a covered individual who 
is an employee of the Department if the Secretary determines the 
performance or misconduct of the covered individual warrants such 
removal, demotion, or suspension.
    (2) If the Secretary so removes, demotes, or suspends such a 
covered individual, the Secretary may--
            (A) remove the covered individual from the civil service 
        (as defined in section 2101(1) of title 5, United States Code);
            (B) demote the covered individual by means of a reduction 
        in grade for which the covered individual is qualified, that 
        the Secretary determines is appropriate, and that reduces the 
        annual rate of pay of the covered individual; or
            (C) suspend the covered individual.
    (b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any 
other provision of law, any covered individual subject to a demotion 
under subsection (a)(2) shall, beginning on the date of such demotion, 
receive the annual rate of pay applicable to such grade.
    (2)(A) A covered individual so demoted may not be placed on 
administrative leave during the period during which an appeal (if any) 
under this section is ongoing, and may only receive pay if the covered 
individual reports for duty or is approved to use accrued unused 
annual, sick, family medical, military, or court leave.
    (B) If a covered individual so demoted does not report for duty or 
receive approval to use accrued unused leave, such covered individual 
shall not receive pay or other benefits pursuant to subsection (d)(5).
    (c) Procedure.--(1)(A) The aggregate period for notice, response, 
and final decision in a removal, demotion, or suspension under this 
section may not exceed 15 business days.
    (B) The period for the response of a covered individual to a notice 
of a proposed removal, demotion, or suspension under this section shall 
be 7 business days.
    (C) Paragraph (3) of subsection (b) of section 7513 of title 5, 
United States Code, shall apply with respect to a removal, demotion, or 
suspension under this section.
    (D) The procedures in this subsection shall supersede any 
collective bargaining agreement to the extent that such agreement is 
inconsistent with such procedures.
    (2) The Secretary shall issue a final decision with respect to a 
removal, demotion, or suspension under this section not later than 15 
business days after the Secretary provides notice, including a file 
containing all the evidence in support of the proposed action, to the 
covered individual of the removal, demotion, or suspension. The 
decision shall be in writing and shall include the specific reasons 
therefor.
    (3) The procedures under chapter 43 of title 5, United States Code, 
shall not apply to a removal, demotion, or suspension under this 
section.
    (4)(A) Subject to subparagraph (B) and subsection (d), any removal 
or demotion under this section, and any suspension of more than 14 days 
under this section, may be appealed to the Merit Systems Protection 
Board, which shall refer such appeal to an administrative judge 
pursuant to section 7701(b)(1) of title 5, United States Code.
    (B) An appeal under subparagraph (A) of a removal, demotion, or 
suspension may only be made if such appeal is made not later than 10 
business days after the date of such removal, demotion, or suspension.
    (d) Expedited Review.--(1) Upon receipt of an appeal under 
subsection (c)(4)(A), the administrative judge shall expedite any such 
appeal under section 7701(b)(1) of title 5, United States Code, and, in 
any such case, shall issue a final and complete decision not later than 
180 days after the date of the appeal.
    (2)(A) Notwithstanding section 7701(c)(1)(B) of title 5, United 
States Code, the administrative judge shall uphold the decision of the 
Secretary to remove, demote, or suspend an employee under subsection 
(a) if the decision is supported by substantial evidence.
    (B) Notwithstanding title 5, United States Code, or any other 
provision of law, if the decision of the Secretary is supported by 
substantial evidence, the administrative judge shall not mitigate the 
penalty prescribed by the Secretary.
    (3)(A) The decision of the administrative judge under paragraph (1) 
may be appealed to the Merit Systems Protection Board.
    (B) Notwithstanding section 7701(c)(1)(B) of title 5, United States 
Code, the Merit Systems Protection Board shall uphold the decision of 
the Secretary to remove, demote, or suspend an employee under 
subsection (a) if the decision is supported by substantial evidence.
    (C) Notwithstanding title 5, United States Code, or any other 
provision of law, if the decision of the Secretary is supported by 
substantial evidence, the Merit Systems Protection Board shall not 
mitigate the penalty prescribed by the Secretary.
    (4) In any case in which the administrative judge cannot issue a 
decision in accordance with the 180-day requirement under paragraph 
(1), the Merit Systems Protection Board shall, not later than 14 
business days after the expiration of the 180-day period, submit to the 
Committee on Health, Education, Labor, and Pensions of the Senate and 
the Committee on Education and Labor of the House of Representatives a 
report that explains the reasons why a decision was not issued in 
accordance with such requirement.
    (5) A decision of the Merit Systems Protection Board under 
paragraph (3) may be appealed to the United States Court of Appeals for 
the Federal Circuit pursuant to section 7703 of title 5, United States 
Code, or to any court of appeals of competent jurisdiction pursuant to 
subsection (b)(1)(B) of such section.
    (6) The Merit Systems Protection Board may not stay any removal or 
demotion under this section, except as provided in section 1214(b) of 
title 5, United States Code.
    (7) During the period beginning on the date on which a covered 
individual appeals a removal from the civil service under subsection 
(c) and ending on the date that the United States Court of Appeals for 
the Federal Circuit issues a final decision on such appeal, such 
covered individual may not receive any pay, awards, bonuses, 
incentives, allowances, differentials, student loan repayments, special 
payments, or benefits related to the employment of the individual by 
the Department.
    (8) To the maximum extent practicable, the Secretary shall provide 
to the Merit Systems Protection Board such information and assistance 
as may be necessary to ensure an appeal under this subsection is 
expedited.
    (9) If an employee prevails on appeal under this section, the 
employee shall be entitled to backpay (as provided in section 5596 of 
title 5, United States Code).
    (10) If an employee who is subject to a collective bargaining 
agreement chooses to grieve an action taken under this section through 
a grievance procedure provided under the collective bargaining 
agreement, the timelines and procedures set forth in subsection (c) and 
this subsection shall apply.
    (e) Whistleblower Protection.--(1) In the case of a covered 
individual seeking corrective action (or on behalf of whom corrective 
action is sought) from the Office of Special Counsel based on an 
alleged prohibited personnel practice described in section 2302(b) of 
title 5, United States Code, the Secretary may not remove, demote, or 
suspend such covered individual under subsection (a) without the 
approval of the Special Counsel under section 1214(f) of such title.
    (2) In the case of a covered individual who has made a 
whistleblower disclosure to the Office of Management of the Department 
of Education, the Secretary may not remove, demote, or suspend such 
covered individual under subsection (a) until--
            (A) in the case in which the Deputy Secretary determines to 
        refer the whistleblower disclosure under section 3(a)(1)(D) to 
        an office or other investigative entity, a final decision with 
        respect to the whistleblower disclosure has been made by such 
        office or other investigative entity; or
            (B) in the case in which the Deputy Secretary determines 
        not to the refer the whistleblower disclosure under such 
        section, the Assistant Secretary makes such determination.
    (f) Termination of Investigations by Office of Special Counsel.--
(1) Notwithstanding any other provision of law, the Special Counsel 
(established by section 1211 of title 5, United States Code) may 
terminate an investigation of a prohibited personnel practice alleged 
by an employee or former employee of the Department after the Special 
Counsel provides to the employee or former employee a written statement 
of the reasons for the termination of the investigation.
    (2) Such statement may not be admissible as evidence in any 
judicial or administrative proceeding without the consent of such 
employee or former employee.
    (g) Vacancies.--In the case of a covered individual who is removed 
or demoted under subsection (a), to the maximum extent feasible, the 
Secretary shall fill the vacancy arising as a result of such removal or 
demotion.
    (h) Definitions.--In this section--
            (1) the term ``covered individual'' means an individual 
        occupying a position at the Department, but does not include--
                    (A) an individual occupying a senior executive 
                position at the Department;
                    (B) an individual appointed under title II of the 
                Department of Education Organization Act (20 U.S.C. 
                3411 et seq.);
                    (C) an individual who has not completed a 
                probationary or trial period; or
                    (D) a political appointee;
            (2) the term ``suspend'' means the placing of an employee, 
        for disciplinary reasons, in a temporary status without duties 
        and pay for a period in excess of 14 days;
            (3) the term ``grade'' has the meaning given such term in 
        section 7511(a) of title 5, United States Code;
            (4) the term ``misconduct'' includes neglect of duty, 
        malfeasance, or failure to accept a directed reassignment or to 
        accompany a position in a transfer of function; and
            (5) the term ``political appointee'' means an individual 
        who is--
                    (A) employed in a position described under sections 
                5312 through 5316 of title 5, United States Code 
                (relating to the Executive Schedule);
                    (B) a limited term appointee, limited emergency 
                appointee, or noncareer appointee in the Senior 
                Executive Service, as defined under paragraphs (5), 
                (6), and (7), respectively, of section 3132(a) of title 
                5, United States Code; or
                    (C) employed in a position of a confidential or 
                policy-determining character under schedule C of 
                subpart C of part 213 of title 5, Code of Federal 
                Regulations, or successor regulation.

SEC. 8. REDUCTION OF BENEFITS OF EMPLOYEES CONVICTED OF CERTAIN CRIMES.

    (a) Reduction of Annuity for Removed Employee.--(1) The Secretary 
shall order that the covered service of an employee of the Department 
removed from a position for performance or misconduct under any 
provision of law shall not be taken into account for purposes of 
calculating an annuity with respect to such individual under chapter 83 
or chapter 84 of title 5, United States Code, if--
            (A) the Secretary determines that the individual is 
        convicted of a felony (and the conviction is final) that 
        influenced the individual's performance while employed in the 
        position;
            (B) before such order is made, the individual is afforded--
                    (i) notice of the proposed order; and
                    (ii) an opportunity to respond to the proposed 
                order by not later than ten business days following 
                receipt of such notice; and
            (C) the Secretary issues the order--
                    (i) in the case of a proposed order to which an 
                individual responds under subparagraph (B)(ii), not 
                later than five business days after receiving the 
                response of the individual; or
                    (ii) in the case of a proposed order to which an 
                individual does not respond, not later than 15 business 
                days after the Secretary provides notice to the 
                individual under subparagraph (B)(i).
    (2) Any individual with respect to whom an annuity is reduced under 
this subsection may appeal the reduction to the Director of the Office 
of Personnel Management pursuant to such regulations as the Director 
may prescribe for purposes of this subsection.
    (b) Reduction of Annuity for Retired Employee.--(1) The Secretary 
may order that the covered service of an individual who the Secretary 
proposes to remove for performance or misconduct under any provision of 
law but who leaves employment at the Department prior to the issuance 
of a final decision with respect to such action shall not be taken into 
account for purposes of calculating an annuity with respect to such 
individual under chapter 83 or chapter 84 of title 5, United States 
Code, if--
            (A) the Secretary determines that individual is convicted 
        of a felony (and the conviction is final) that influenced the 
        individual's performance while employed in the position;
            (B) before such order is made, the individual is afforded--
                    (i) notice of the proposed order; and
                    (ii) an opportunity to respond to the proposed 
                order by not later than ten business days following 
                receipt of such notice; and
            (C) the Secretary issues the order--
                    (i) in the case of a proposed order to which an 
                individual responds under subparagraph (B)(ii), not 
                later than five business days after receiving the 
                response of the individual; or
                    (ii) in the case of a proposed order to which an 
                individual does not respond, not later than 15 business 
                days after the Secretary provides notice to the 
                individual under subparagraph (B)(i).
    (2) Upon the issuance of an order by the Secretary under paragraph 
(1), the individual shall have an opportunity to appeal the order to 
the Director of the Office of Personnel Management before the date that 
is seven business days after the date of such issuance.
    (3) The Director of the Office of Personnel Management shall make a 
final decision with respect to an appeal under paragraph (2) within 30 
business days of receiving the appeal.
    (c) Administrative Requirements.--Not later than 37 business days 
after the Secretary issues a final order under subsection (a) or (b) 
with respect to an individual, the Director of the Office of Personnel 
Management shall recalculate the annuity of the individual.
    (d) Lump-Sum Annuity Credit.--Any individual with respect to whom 
an annuity is reduced under subsection (a) or (b) shall be entitled to 
be paid so much of such individual's lump-sum credit as is attributable 
to the period of covered service.
    (e) Spouse or Children Exception.--(1) The Secretary, in 
consultation with the Director of the Office of Personnel Management, 
shall prescribe regulations that may provide for the payment to the 
spouse or children of any individual referred to in subsection (a) or 
(b) of any amounts which (but for this subsection) would otherwise have 
been nonpayable by reason of such subsections.
    (2) Regulations prescribed under paragraph (1) shall be consistent 
with the requirements of sections 8332(o)(5) and 8411(l)(5) of title 5, 
United States Code, as the case may be.
    (f) Definitions.--In this section--
            (1) the term ``covered service'' means, with respect to an 
        individual subject to a removal for performance or misconduct 
        under section 4 or any other provision of law, the period of 
        service beginning on the date that the Secretary determines 
        under such applicable provision that the individual engaged in 
        activity that gave rise to such action and ending on the date 
        that the individual is removed from or leaves a position of 
        employment at the Department prior to the issuance of a final 
        decision with respect to such action;
            (2) the term ``lump-sum credit'' has the meaning given such 
        term in section 8331(8) or section 8401(19) of title 5, United 
        States Code, as the case may be; and
            (3) the term ``service'' has the meaning given such term in 
        section 8331(12) or section 8401(26) of title 5, United States 
        Code, as the case may be.

SEC. 9. RECOUPMENT OF BONUSES OR AWARDS PAID TO EMPLOYEES OF 
              DEPARTMENT.

    (a) In General.--Notwithstanding any other provision of law, the 
Secretary may issue an order directing an employee of the Department to 
repay the amount, or a portion of the amount, of any award or bonus 
paid to the employee under title 5, United States Code, including under 
chapter 45 or 53 of such title, section 141(d)(5)(B) of the Higher 
Education Act of 1965 (20 U.S.C. 1018(d)(5)(B)), or another provision 
of Federal law, if--
            (1) the Secretary determines that the individual engaged in 
        misconduct or poor performance prior to payment of the award or 
        bonus, and that such award or bonus would not have been paid, 
        in whole or in part, had the misconduct or poor performance 
        been known prior to payment;
            (2) before such repayment, the employee is afforded--
                    (A) notice of the proposed order; and
                    (B) an opportunity to respond to the proposed order 
                by not later than 10 business days after the receipt of 
                such notice; and
            (3) the Secretary issues the order--
                    (A) in the case of a proposed order to which an 
                individual responds under paragraph (2)(B), not later 
                than five business days after receiving the response of 
                the individual; or
                    (B) in the case of a proposed order to which an 
                individual does not respond, not later than 15 business 
                days after the Secretary provides notice to the 
                individual under paragraph (2)(A).
    (b) Appeal of Order of Secretary.--(1) Upon the issuance of an 
order by the Secretary under subsection (a) with respect to an 
individual, the individual shall have an opportunity to appeal the 
order to the Director of the Office of Personnel Management before the 
date that is seven business days after the date of such issuance.
    (2) The Director shall make a final decision with respect to an 
appeal under paragraph (1) within 30 business days after receiving such 
appeal.
    (c) Effective Date.--This section shall apply with respect to an 
award or bonus paid by the Secretary to an employee of the Department 
on or after the date of the enactment of this Act.

SEC. 10. ADVERSE ACTIONS AGAINST SUPERVISORY EMPLOYEES WHO COMMIT 
              PROHIBITED PERSONNEL ACTIONS RELATING TO WHISTLEBLOWER 
              COMPLAINTS.

    (a) In General.--(1) In accordance with paragraph (2), the 
Secretary shall carry out the following adverse actions against 
supervisory employees (as defined in section 7103(a) of title 5, United 
States Code) whom the Secretary, an administrative judge, the Merit 
Systems Protection Board, the Office of Special Counsel, an 
adjudicating body provided under a union contract, a Federal judge, or 
the Inspector General of the Department determines committed a 
prohibited personnel action described in subsection (c):
            (A) With respect to the first offense, an adverse action 
        that is not less than a 12-day suspension and not more than 
        removal.
            (B) With respect to the second offense, removal.
    (2)(A) An employee against whom an adverse action under paragraph 
(1) is proposed is entitled to written notice.
    (B)(i) An employee who is notified under subparagraph (A) of being 
the subject of a proposed adverse action under paragraph (1) is 
entitled to 10 days following such notification to answer and furnish 
evidence in support of the answer.
    (ii) If the employee does not furnish any such evidence as 
described in clause (i) or if the Secretary determines that such 
evidence is not sufficient to reverse the determination to propose the 
adverse action, the Secretary shall carry out the adverse action 
following such 10-day period.
    (C) Paragraphs (1) and (2) of subsection (b) of section 7513 of 
title 5, United States Code, subsection (c) of such section, paragraphs 
(1) and (2) of subsection (b) of section 7543 of such title, and 
subsection (c) of such section shall not apply with respect to an 
adverse action carried out under paragraph (1).
    (b) Limitation on Other Adverse Actions.--With respect to a 
prohibited personnel action described in subsection (c), if the 
Secretary carries out an adverse action against a supervisory employee, 
the Secretary may carry out an additional adverse action under this 
section based on the same prohibited personnel action if the total 
severity of the adverse actions do not exceed the level specified in 
subsection (a).
    (c) Prohibited Personnel Action Described.--A prohibited personnel 
action described in this subsection is any of the following actions:
            (1) Taking or failing to take a personnel action in 
        violation of section 2302 of title 5, United States Code, 
        against an employee relating to the employee--
                    (A) making a whistleblower disclosure to the 
                Assistant Secretary for Accountability and 
                Whistleblower Protection, the Inspector General of the 
                Department, the Special Counsel, or Congress;
                    (B) providing information or participating as a 
                witness in an investigation of a whistleblower 
                disclosure made to the Assistant Secretary for 
                Accountability and Whistleblower Protection, the 
                Inspector General of the Department, the Special 
                Counsel, or Congress;
                    (C) participating in an audit or investigation by 
                the Comptroller General of the United States;
                    (D) refusing to perform an action that is unlawful 
                or prohibited by the Department; or
                    (E) engaging in communications that are related to 
                the duties of the position or are otherwise protected.
            (2) Preventing or restricting an employee from making an 
        action described in any of subparagraphs (A) through (E) of 
        paragraph (1).
            (3) Conducting a negative peer review or opening a 
        retaliatory investigation because of an activity of an employee 
        that is protected by section 2302 of title 5, United States 
        Code.
            (4) Requesting a contractor to carry out an action that is 
        prohibited by section 4705(b) or section 4712(a)(1) of title 
        41, as the case may be.

SEC. 11. RECOUPMENT OF RELOCATION EXPENSES PAID ON BEHALF OF EMPLOYEES 
              OF DEPARTMENT.

    (a) In General.--Notwithstanding any other provision of law, the 
Secretary may issue an order directing an employee of the Department to 
repay the amount, or a portion of the amount, paid to or on behalf of 
the employee under title 5, United States Code, for relocation 
expenses, including any expenses under section 5724 or 5724a of such 
title, if--
            (1) the Secretary determines that relocation expenses were 
        paid following an act of fraud or malfeasance that influenced 
        the authorization of the relocation expenses;
            (2) before such repayment, the employee is afforded--
                    (A) notice of the proposed order; and
                    (B) an opportunity to respond to the proposed order 
                not later than ten business days following the receipt 
                of such notice; and
            (3) the Secretary issues the order--
                    (A) in the case of a proposed order to which an 
                individual responds under paragraph (2)(B), not later 
                than five business days after receiving the response of 
                the individual; or
                    (B) in the case of a proposed order to which an 
                individual does not respond, not later than 15 business 
                days after the Secretary provides notice to the 
                individual under paragraph (2)(A).
    (b) Appeal of Order of Secretary.--(1) Upon the issuance of an 
order by the Secretary under subsection (a) with respect to an 
individual, the individual shall have an opportunity to appeal the 
order to the Director of the Office of Personnel Management before the 
date that is seven business days after the date of such issuance.
    (2) The Director shall make a final decision with respect to an 
appeal under paragraph (1) within 30 days after receiving such appeal.
    (c) Effective Date.--This section shall apply with respect to an 
amount paid by the Secretary to or on behalf of an employee of the 
Department for relocation expenses on or after the date of the 
enactment of this Act.
    (d) Construction.--Nothing in this Act or the amendments made by 
this Act may be construed to modify the certification issued by the 
Office of Personnel Management and the Office of Management and Budget 
regarding the performance appraisal system of the Senior Executive 
Service of the Department.

SEC. 12. IMPROVEMENT OF TRAINING FOR SUPERVISORS.

    (a) In General.--The Secretary of Education shall provide to each 
employee of the Department of Education who is employed as a supervisor 
periodic training on the following:
            (1) The rights of whistleblowers and how to address a 
        report by an employee of a hostile work environment, reprisal, 
        or harassment.
            (2) How to effectively motivate, manage, and reward the 
        employees who report to the supervisor.
            (3) How to effectively manage employees who are performing 
        at an unacceptable level and access assistance from the human 
        resources office of the Department and the Office of the 
        General Counsel of the Department with respect to those 
        employees.
    (b) Definitions.--In this section, the term ``supervisor'' has the 
meaning given such term in section 7103(a) of title 5, United States 
Code.

SEC. 13. ASSESSMENT AND REPORT ON EFFECT ON SENIOR EXECUTIVES AT 
              DEPARTMENT OF EDUCATION.

    (a) In General.--Not later than two years after the date of the 
enactment of this Act, the Secretary of Education, in consultation with 
the Office of Management, shall--
            (1) measure and assess the effect of the enactment of this 
        Act on the morale, engagement, hiring, promotion, retention, 
        discipline, and productivity of individuals in senior executive 
        positions at the Department; and
            (2) submit to the Committee on Health, Education, Labor, 
        and Pensions of the Senate and the Committee on Education and 
        Labor of the House of Representatives a report on the findings 
        of the Secretary with respect to the measurement and assessment 
        carried out under paragraph (1).
    (b) Elements.--The assessment required by subsection (a)(1) shall 
include the following:
            (1) With respect to engagement, trends in morale of 
        individuals in senior executive positions at the Department and 
        individuals aspiring to senior executive positions.
            (2) With respect to promotions--
                    (A) whether the Department is experiencing an 
                increase or decrease in the number of employees 
                participating in leadership development and candidate 
                development programs with the intention of becoming 
                candidates for senior executive positions at the 
                Department; and
                    (B) trends in applications to senior executive 
                positions at the Department.
            (3) With respect to retention--
                    (A) trends in retirement rates of individuals in 
                senior executive positions at the Department;
                    (B) trends in quit rates of individuals in senior 
                executive positions at the Department;
                    (C) rates of transfer of--
                            (i) individuals from other Federal agencies 
                        into senior executive positions at the 
                        Department; and
                            (ii) individuals from senior executive 
                        positions at the Department to other Federal 
                        agencies; and
                    (D) trends in total loss rates by job function.
            (4) With respect to disciplinary processes--
                    (A) regarding individuals in senior executive 
                positions at the Department who are the subject of 
                disciplinary action--
                            (i) the length of the disciplinary process 
                        in days for such individuals both before the 
                        date of the enactment of this Act and under the 
                        provisions of this Act described in subsection 
                        (a)(1); and
                            (ii) the extent to which appeals by such 
                        individuals are upheld under such provisions as 
                        compared to before the date of the enactment of 
                        this Act;
                    (B) the components or offices of the Department 
                which experience the greatest number of proposed 
                adverse actions against individuals in senior executive 
                positions at the Department and components and offices 
                which experience the least relative to the size of the 
                components or offices' total number of senior executive 
                positions at the Department;
                    (C) the tenure of individuals in senior executive 
                positions at the Department who are the subject of 
                disciplinary action;
                    (D) whether the individuals in senior executive 
                positions at the Department who are the subject of 
                disciplinary action have previously been disciplined; 
                and
                    (E) the number of instances of disciplinary action 
                taken by the Secretary against individuals in senior 
                executive positions at the Department as compared to 
                governmentwide discipline against individuals in Senior 
                Executive Service positions (as defined in section 
                3132(a) of title 5, United States Code) as a percentage 
                of the total number of individuals in senior executive 
                positions at the Department and Senior Executive 
                Service positions (as so defined).
            (5) With respect to hiring--
                    (A) the degree to which the skills of newly hired 
                individuals in senior executive positions at the 
                Department are appropriate with respect to the needs of 
                the Department;
                    (B) the types of senior executive positions at the 
                Department most commonly filled under the authorities 
                in the provisions described in subsection (a)(1);
                    (C) the number of senior executive positions at the 
                Department filled by hires outside of the Department 
                compared to hires from within the Department;
                    (D) the length of time to fill a senior executive 
                position at the Department and for a new hire to begin 
                working in a new senior executive position;
                    (E) the mission-critical deficiencies filled by 
                newly hired individuals in senior executive positions 
                at the Department and the connection between mission-
                critical deficiencies filled under the provisions 
                described in subsection (a) and annual performance of 
                the Department;
                    (F) the satisfaction of applicants for senior 
                executive positions at the Department with the hiring 
                process, including the clarity of job announcements, 
                reasons for withdrawal of applications, communication 
                regarding status of applications, and timeliness of 
                hiring decision; and
                    (G) the satisfaction of newly hired individuals in 
                senior executive positions at the Department with the 
                hiring process and the process of joining and becoming 
                oriented with the Department.

SEC. 14. MEASUREMENT OF DEPARTMENT OF EDUCATION DISCIPLINARY PROCESS 
              OUTCOMES AND EFFECTIVENESS.

    (a) Measuring and Collecting.--
            (1) In general.--The Secretary of Education, in 
        consultation with the Office of Management, shall measure and 
        collect information on the outcomes of disciplinary actions 
        carried out by the Department of Education during the three-
        year period ending on the date of the enactment of this Act and 
        the effectiveness of such actions.
            (2) Elements.--In measuring and collecting pursuant to 
        paragraph (1), the Secretary shall measure and collect 
        information regarding the following:
                    (A) The average time from the initiation of an 
                adverse action against an employee at the Department to 
                the final resolution of that action.
                    (B) The number of distinct steps and levels of 
                review within the Department involved in the 
                disciplinary process and the average length of time 
                required to complete these steps.
                    (C) The rate of use of alternate disciplinary 
                procedures compared to traditional disciplinary 
                procedures and the frequency with which employees who 
                are subject to alternative disciplinary procedures 
                commit additional offenses.
                    (D) The number of appeals from adverse actions 
                filed against employees of the Department, the number 
                of appeals upheld, and the reasons for which the 
                appeals were upheld.
                    (E) The use of paid administrative leave during the 
                disciplinary process and the length of such leave.
    (b) Report.--
            (1) In general.--Not later than December 31, 2019, the 
        Secretary shall submit to the appropriate committees of 
        Congress a report on the disciplinary procedures and actions of 
        the Department.
            (2) Contents.--The report submitted under paragraph (1) 
        shall include the following:
                    (A) The information collected under subsection (a).
                    (B) The findings of the Secretary with respect to 
                the measurement and collection carried out under 
                subsection (a).
                    (C) An analysis of the disciplinary procedures and 
                actions of the Department.
                    (D) Suggestions for improving the disciplinary 
                procedures and actions of the Department.
                    (E) Such other matters as the Secretary considers 
                appropriate.
            (3) Appropriate committees of congress.--In this 
        subsection, the term ``appropriate committees of Congress'' 
        means--
                    (A) the Committee on Appropriations and the 
                Committee on Health, Education, Labor, and Pensions of 
                the Senate; and
                    (B) the Committee on Appropriations and the 
                Committee on Education and Labor of the House of 
                Representatives.
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