Department of Education Accountability and Whistleblower Protection Act

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 fol- lowing 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 com- mittee concerned A BILL To provide accountability and protect whistleblowers in the Department of Education. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Department of Edu- 4 cation Accountability and Whistleblower Protection Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2188 IH (1) The term ‘‘Department’’ means the Depart- 1 ment of Education. 2 (2) The term ‘‘Deputy Secretary’’ means the 3 Deputy Secretary of Education. 4 (3) The term ‘‘Office’’ means the Office of 5 Management of the Department of Education. 6 (4) The term ‘‘Secretary’’ means the Secretary 7 of Education. 8 (5) The term ‘‘senior executive position at the 9 Department’’ means an individual appointed under 10 section 401(d) of the Department of Education Or- 11 ganization Act (20 U.S.C. 3461). 12 (6) The term ‘‘supervisory employee’’ means an 13 employee of the Department who is a supervisor as 14 defined in section 7103(a)(10) of title 5, United 15 States Code. 16 (7) The term ‘‘whistleblower’’ means one who 17 makes a whistleblower disclosure. 18 (8) The term ‘‘whistleblower disclosure’’ means 19 any disclosure of information by an employee of the 20 Department or individual applying to become an em- 21 ployee of the Department which the employee or in- 22 dividual reasonably believes evidences— 23 (A) a violation of a law, rule, or regulation; 24 or 25 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2188 IH (B) gross mismanagement, a gross waste 1 of funds, an abuse of authority, or a substantial 2 and specific danger to public health or safety. 3 SEC. 3. OFFICE OF MANAGEMENT. 4 (a) FUNCTIONS.—(1) In addition to any other func- 5 tions, the functions of the Office are as follows: 6 (A) Advising the Secretary on all matters of the 7 Department relating to accountability, including ac- 8 countability of employees of the Department, retalia- 9 tion against whistleblowers, and such matters as the 10 Secretary considers similar and affect public trust at 11 the Department. 12 (B) Issuing reports and providing recommenda- 13 tions related to the duties described in subparagraph 14 (A). 15 (C) Receiving whistleblower disclosures. 16 (D) Referring whistleblower disclosures received 17 under subparagraph (C) for investigation to the Of- 18 fice of Inspector General, or other investigative enti- 19 ty, as appropriate, if the Deputy Secretary has rea- 20 son to believe the whistleblower disclosure is evi- 21 dence of a violation of a provision of law, mis- 22 management, gross waste of funds, or an abuse of 23 authority. 24 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2188 IH (E) Receiving and referring disclosures from 1 the Special Counsel for the Inspector General of the 2 Department, or such other person with investigatory 3 authority, as the Deputy Secretary considers appro- 4 priate. 5 (F) Recording, tracking, reviewing, and con- 6 firming implementation of recommendations from 7 audits and investigations carried out by the Inspec- 8 tor General of the Department, the Special Counsel, 9 and the Comptroller General of the United States, 10 including the imposition of disciplinary actions and 11 other corrective actions contained in such rec- 12 ommendations. 13 (G) Analyzing data from the Office and the Of- 14 fice of Inspector General telephone hotlines, other 15 whistleblower disclosures, disaggregated by facility 16 and area of health care if appropriate, and relevant 17 audits and investigations to identify trends and issue 18 reports to the Secretary based on analysis conducted 19 under this subparagraph. 20 (H) Receiving, reviewing, and investigating alle- 21 gations of misconduct, retaliation, or poor perform- 22 ance involving— 23 (i) an individual in a senior executive posi- 24 tion at the Department; 25 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2188 IH (ii) an individual employed in a confiden- 1 tial, policy-making, policy-determining, or pol- 2 icy-advocating position at the Department; or 3 (iii) a supervisory employee, if the allega- 4 tion involves retaliation against an employee for 5 making a whistleblower disclosure. 6 (I) Making such recommendations to the Sec- 7 retary for disciplinary action as the Deputy Sec- 8 retary considers appropriate after substantiating any 9 allegation of misconduct or poor performance pursu- 10 ant to an investigation carried out as described in 11 subparagraph (F) or (H). 12 (2) In carrying out the functions of the Office, the 13 Deputy Secretary shall ensure that the Office maintains 14 a toll-free telephone number and Internet website to re- 15 ceive anonymous whistleblower disclosures. 16 (3) In any case in which the Deputy Secretary re- 17 ceives a whistleblower disclosure from an employee of the 18 Department under paragraph (1)(C), the Deputy Sec- 19 retary may not disclose the identity of the employee with- 20 out the consent of the employee, except in accordance with 21 the provisions of section 552a of title 5, United States 22 Code, or as required by any other applicable provision of 23 Federal law. 24 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2188 IH (b) STAFF AND RESOURCES.—The Secretary shall 1 ensure that the Deputy Secretary has such staff, re- 2 sources, and access to information as may be necessary 3 to carry out the functions of the Office. 4 (c) RELATION TO OFFICE OF GENERAL COUNSEL.— 5 The Office shall not be an element of the Office of the 6 General Counsel and the Deputy Secretary may not report 7 to the General Counsel. 8 (d) REPORTS.—(1)(A) Not later than June 30 of 9 each calendar year, beginning with June 30, 2020, the 10 Deputy Secretary shall submit to the Committee on 11 Health, Education, Labor, and Pensions of the Senate and 12 the Committee on Education and Labor of the House of 13 Representatives a report on the activities of the Office 14 during the calendar year in which the report is submitted. 15 (B) Each report submitted under subparagraph (A) 16 shall include, for the period covered by the report, the fol- 17 lowing: 18 (i) A full and substantive analysis of the activi- 19 ties of the Office, including such statistical informa- 20 tion as the Deputy Secretary considers appropriate. 21 (ii) Identification of any issues reported to the 22 Secretary under subsection (b)(1)(G), including such 23 data as the Deputy Secretary considers relevant to 24 VerDate Sep 11 2014 20:11 Apr 22, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2188 IH such issues and any trends the Deputy Secretary 1 may have identified with respect to such issues. 2 (iii) Identification of such concerns as the Dep- 3 uty Secretary may have regarding the size, staffing, 4 and resources of the Office and such recommenda- 5 tions as the Deputy Secretary may have for legisla- 6 tive or administrative action to address such con- 7 cerns. 8 (iv) Such recommendations as the Deputy Sec- 9 retary may have for legislative or administrative ac- 10 tion to improve— 11 (I) the process by which concerns are re- 12 ported to the Office; and 13 (II) the protection of whistleblowers within 14 the Department. 15 (v) Such other matters as the Deputy Secretary 16 considers appropriate regarding the functions of the 17 Office or other matters relating to the Office. 18 (2) If the Secretary receives a recommendation for 19 disciplinary action under subsection (b)(1)(I) and does not 20 take or initiate the recommended disciplinary action before 21 the date that is 60 days after the date on which the Sec- 22 retary received the recommendation, the Secretary shall 23 submit to the Committee on Health, Education, Labor, 24 and Pensions of the Senate and the Committee on Edu- 25 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2188 IH cation and Labor of the House of Representatives a de- 1 tailed justification for not taking or initiating such dis- 2 ciplinary action. 3 SEC. 4. PROTECTION OF WHISTLEBLOWERS AS CRITERIA 4 IN EVALUATION OF SUPERVISORS. 5 (a) DEVELOPMENT AND USE OF CRITERIA RE- 6 QUIRED.—The Secretary, in consultation with the Office 7 of the Principal Deputy Secretary, shall develop criteria 8 that— 9 (1) the Secretary shall use as a critical element 10 in any evaluation of the performance of a super- 11 visory employee; and 12 (2) promotes the protection of whistleblowers. 13 (b) PRINCIPLES FOR PROTECTION OF WHISTLE- 14 BLOWERS.—The criteria required by subsection (a) shall 15 include principles for the protection of whistleblowers, 16 such as the degree to which supervisory employees respond 17 constructively when employees of the Department report 18 concerns, take responsible action to resolve such concerns, 19 and foster an environment in which employees of the De- 20 partment feel comfortable reporting concerns to super- 21 visory employees or to the appropriate authorities. 22 VerDate Sep 11 2014 20:11 Apr 22, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2188 IH SEC. 5. TRAINING REGARDING WHISTLEBLOWER DISCLO- 1 SURES. 2 (a) TRAINING.—Not less frequently than once every 3 two years, the Secretary, in coordination with the Whistle- 4 blower Protection Ombudsman designated under section 5 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. 6 App.), shall provide to each employee of the Department 7 training regarding whistleblower disclosures, including— 8 (1) an explanation of each method established 9 by law in which an employee may file a whistle- 10 blower disclosure; 11 (2) the right of the employee to petition Con- 12 gress regarding a whistleblower disclosure in accord- 13 ance with section 7211 of title 5, United States 14 Code; 15 (3) an explanation that the employee may not 16 be prosecuted or reprised against for disclosing in- 17 formation to Congress, the Inspector General, or an- 18 other investigatory agency in instances where such 19 disclosure is permitted by law, including under sec- 20 tion 552a of title 5, United States Code (commonly 21 referred to as the Privacy Act); 22 (4) an explanation of the language that is re- 23 quired to be included in all nondisclosure policies, 24 forms, and agreements pursuant to section 25 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2188 IH 115(a)(1) of the Whistleblower Protection Enhance- 1 ment Act of 2012 (5 U.S.C. 2302 note); and 2 (5) the right of contractors to be protected from 3 reprisal for the disclosure of certain information 4 under section 4705 or 4712 of title 41, United 5 States Code. 6 (b) MANNER TRAINING IS PROVIDED.—The Sec- 7 retary shall ensure, to the maximum extent practicable, 8 that training provided under subsection (a) is provided in 9 person. 10 (c) CERTIFICATION.—Not less frequently than once 11 every two years, the Secretary shall provide training on 12 merit system protection in a manner that the Special 13 Counsel certifies as being satisfactory. 14 (d) PUBLICATION.—The Secretary shall publish on 15 the Internet website of the Department, and display 16 prominently at each facility of the Department, the rights 17 of an employee to make a whistleblower disclosure, includ- 18 ing the information described in paragraphs (1) through 19 (5) of subsection (a). 20 SEC. 6. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR 21 SUSPENSION BASED ON PERFORMANCE OR 22 MISCONDUCT. 23 (a) AUTHORITY.—(1) The Secretary of Education, in 24 consultation with the Office of Management, may, as pro- 25 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2188 IH vided in this section, reprimand or suspend, involuntarily 1 reassign, demote, or remove a covered individual from a 2 senior executive position at the Department if the Sec- 3 retary determines that the misconduct or performance of 4 the covered individual warrants such action. 5 (2) If the Secretary so removes such an individual, 6 the Secretary may remove the individual from the civil 7 service (as defined in section 2101(1) of title 5, United 8 States Code). 9 (b) RIGHTS AND PROCEDURES.—(1) A covered indi- 10 vidual who is the subject of an action under subsection 11 (a) is entitled to— 12 (A) advance notice of the action and a file con- 13 taining all evidence in support of the proposed ac- 14 tion; 15 (B) be represented by an attorney or other rep- 16 resentative of the covered individual’s choice; and 17 (C) grieve the action in accordance with an in- 18 ternal grievance process that the Secretary, in con- 19 sultation with the Office of Management, shall es- 20 tablish for purposes of this subsection. 21 (2)(A) The aggregate period for notice, response, and 22 decision on an action under subsection (a) may not exceed 23 15 business days. 24 VerDate Sep 11 2014 20:09 Apr 19, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2188.IH H2188 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 2188 IH (B) The period for the response of a covered indi- 1 vidual to a notice under paragraph (1)(A) of an action 2 under subsection (a) shall be 7 business days. 3 (C) A decision under this paragraph on an action 4 under subsection (a) shall be issued not later than 15 busi- 5 ness days after notice of the action is provided to the cov- 6 ered individual under paragr [Text truncated for display. 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