25 U.S.C. § 2012 : US Code - Section 2012: Indian education personnel

Search 25 U.S.C. § 2012 : US Code - Section 2012: Indian education personnel

(a) In general
Chapter 51, subchapter III of chapter 53, and chapter 63 of title
5, relating to classification, pay and leave, respectively, and the
sections of such title relating to the appointment, promotion,
hours of work, and removal of civil service employees, shall not
apply to educators or to education positions (as defined in
subsection (p) of this section).
(b) Regulations
Not later than 60 days after January 8, 2002, the Secretary shall
prescribe regulations to carry out this section. Such regulations
shall provide for -
(1) the establishment of education positions;
(2) the establishment of qualifications for educators and
education personnel;
(3) the fixing of basic compensation for educators and
education positions;
(4) the appointment of educators;
(5) the discharge of educators;
(6) the entitlement of educators to compensation;
(7) the payment of compensation to educators;
(8) the conditions of employment of educators;
(9) the leave system for educators;
(10) the annual leave and sick leave for educators;
(11) the length of the school year applicable to education
positions described in subsection (a) of this section; and
(12) such additional matters as may be appropriate.
(c) Qualifications of educators
(1) Requirements
In prescribing regulations to govern the qualifications of
educators, the Secretary shall require that -
(A) lists of qualified and interviewed applicants for
education positions be maintained in each agency and area
office of the Bureau from among individuals who have applied at
the agency or area level for an education position or who have
applied at the national level and have indicated in such
application an interest in working in certain areas or
agencies;
(B) a local school board shall have the authority to waive on
a case-by-case basis, any formal education or degree
qualifications established by regulation pursuant to subsection
(b)(2) of this section, in order for a tribal member to be
hired in an education position to teach courses on tribal
culture and language and that subject to subsection (e)(2) of
this section, a determination by a school board that such a
person be hired shall be instituted by the supervisor of the
school involved; and
(C) that (!1) it shall not be a prerequisite to the
employment of an individual in an education position at the
local level that -
(i) such individual's name appear on a list maintained
pursuant to subparagraph (A); or
(ii) such individual have applied at the national level for
an education position.
(2) Exception for certain temporary employment
The Secretary may authorize the temporary employment in an
education position of an individual who has not met the
certification standards established pursuant to regulations if
the Secretary determines that failure to do so would result in
that position remaining vacant.
(d) Hiring of educators
(1) Requirements
In prescribing regulations to govern the appointment of
educators, the Secretary shall require -
(A)(i)(I) that educators employed in a Bureau school (other
than the supervisor of the school) shall be hired by the
supervisor of the school; and
(II) in a case in which there are no qualified applicants
available to fill a vacancy at a Bureau school, the supervisor
may consult a list maintained pursuant to subsection (c)(1)(A)
of this section;
(ii) each supervisor of a Bureau school shall be hired by the
education line officer of the agency office of the Bureau for
the jurisdiction in which the school is located;
(iii) each educator employed in an agency office of the
Bureau shall be hired by the superintendent for education of
the agency office; and
(iv) each education line officer and educator employed in the
office of the Director of the Office shall be hired by the
Director;
(B)(i) before an individual is employed in an education
position in a Bureau school by the supervisor of the school
(or, with respect to the position of supervisor, by the
appropriate agency education line officer), the local school
board for the school shall be consulted; and
(ii) that a determination by such school board, as evidenced
by school board records, that such individual should or should
not be so employed shall be instituted by the supervisor (or
with respect to the position of supervisor, by the
superintendent for education of the agency office);
(C)(i) before an individual is employed in an education
position in an agency or area office of the Bureau, the
appropriate agency school board shall be consulted; and
(ii) a determination by such school board, as evidenced by
school board records, that such individual should or should not
be employed shall be instituted by the superintendent for
education of the agency office; and
(D) all employment decisions or actions be in compliance with
all applicable Federal, State, and tribal laws.
(2) Information regarding application at national level
(A) In general
Any individual who applies at the local level for an
education position shall state on such individual's application
whether or not such individual has applied at the national
level for an education position in the Bureau.
(B) Determination of accuracy
If such individual is employed at the local level, such
individual's name shall be immediately forwarded to the
Secretary, who shall, as soon as practicable but in no event in
more than 30 days, ascertain the accuracy of the statement made
by such individual pursuant to subparagraph (A).
(C) False statements
Notwithstanding subsection (e) of this section, if the
individual's statement is found to have been false, such
individual, at the Secretary's discretion, may be disciplined
or discharged.
(D) Conditional appointment for national provision
If the individual has applied at the national level for an
education position in the Bureau, the appointment of such
individual at the local level shall be conditional for a period
of 90 days, during which period the Secretary may appoint a
more qualified individual (as determined by the Secretary) from
the list maintained at the national level pursuant to
subsection (c)(1)(A)(ii) (!2) of this section to the position
to which such individual was appointed.
(3) Statutory construction
Except as expressly provided, nothing in this section shall be
construed as conferring upon local school boards authority over,
or control of, educators at Bureau-funded schools or the
authority to issue management decisions.
(4) Appeals
(A) By supervisor
(i) In general
The supervisor of a school may appeal to the appropriate
agency education line officer any determination by the local
school board for the school that an individual be employed,
or not be employed, in an education position in the school
(other than that of supervisor) by filing a written statement
describing the determination and the reasons the supervisor
believes such determination should be overturned.
(ii) Action by board
A copy of such statement shall be submitted to the local
school board and such board shall be afforded an opportunity
to respond, in writing, to such appeal.
(iii) Overturning of determination
After reviewing such written appeal and response, the
education line officer may, for good cause, overturn the
determination of the local school board.
(iv) Transmission of determination
The education line officer shall transmit the determination
of such appeal in the form of a written opinion to such board
and to such supervisor identifying the reasons for
overturning such determination.
(B) By education line officer
(i) In general
The education line officer of an agency office of the
Bureau may appeal to the Director of the Office any
determination by the local school board for the school that
an individual be employed, or not be employed, as the
supervisor of a school by filing a written statement
describing the determination and the reasons the supervisor
believes such determination should be overturned.
(ii) Action by board
A copy of such statement shall be submitted to the local
school board and such board shall be afforded an opportunity
to respond, in writing, to such appeal.
(iii) Overturning of determination
After reviewing such written appeal and response, the
Director may, for good cause, overturn the determination of
the local school board.
(iv) Transmission of determination
The Director shall transmit the determination of such
appeal in the form of a written opinion to such board and to
such education line officer identifying the reasons for
overturning such determination.
(5) Other appeals
(A) In general
The education line officer of an agency office of the Bureau
may appeal to the Director of the Office any determination by
the agency school board that an individual be employed, or not
be employed, in an education position in such agency office by
filing a written statement describing the determination and the
reasons the supervisor believes such determination should be
overturned.
(B) Action by board
A copy of such statement shall be submitted to the agency
school board and such board shall be afforded an opportunity to
respond, in writing, to such appeal.
(C) Overturning of determination
After reviewing such written appeal and response, the
Director may, for good cause, overturn the determination of the
agency school board.
(D) Transmission of determination
The Director shall transmit the determination of such appeal
in the form of a written opinion to such board and to such
education line officer identifying the reasons for overturning
such determination.
(e) Discharge and conditions of employment of educators
(1) Regulations
In promulgating regulations to govern the discharge and
conditions of employment of educators, the Secretary shall
require -
(A) that procedures shall be established for the rapid and
equitable resolution of grievances of educators;
(B) that no educator may be discharged without notice of the
reasons for the discharge and an opportunity for a hearing
under procedures that comport with the requirements of due
process; and
(C) that each educator employed in a Bureau school shall be
notified 30 days prior to the end of an academic year whether
the employment contract of the individual will be renewed for
the following year.
(2) Procedures for discharge
(A) Determinations
(i) In general
Except as provided in clause (iii), the supervisor of a
Bureau school may discharge (subject to procedures
established under paragraph (1)(B)) for cause (as determined
under regulations prescribed by the Secretary) any educator
employed in such school.
(ii) Notification of board
On giving notice to an educator of the supervisor's
intention to discharge the educator, the supervisor shall
immediately notify the local school board of the proposed
discharge.
(iii) Determination by board
If the local school board determines that such educator
shall not be discharged, that determination shall be followed
by the supervisor.
(B) Appeals
(i) In general
The supervisor shall have the right to appeal to the
education line officer of the appropriate agency office of
the Bureau a determination by a local school board under
subparagraph (A)(iii), as evidenced by school board records,
not to discharge an educator.
(ii) Decision of agency education line officer
Upon hearing such an appeal, the agency education line
officer may, for good cause, issue a decision overturning the
determination of the local school board with respect to the
employment of such individual.
(iii) Form of decision
The education line officer shall make the decision in
writing and submit the decision to the local school board.
(3) Recommendations of school boards for discharge
Each local school board for a Bureau school shall have the
right -
(A) to recommend to the supervisor that an educator employed
in the school be discharged; and
(B) to recommend to the education line officer of the
appropriate agency office of the Bureau and to the Director of
the Office, that the supervisor of the school be discharged.
(f) Applicability of Indian preference laws
(1) Applicability
(A) In general
Notwithstanding any provision of the Indian preference laws,
such laws shall not apply in the case of any personnel action
carried out under this section with respect to an applicant or
employee not entitled to an Indian preference if each tribal
organization concerned -
(i) grants a written waiver of the application of those
laws with respect to the personnel action; and
(ii) states that the waiver is necessary.
(B) No effect on responsibility of Bureau
This paragraph shall not be construed to relieve the
responsibility of the Bureau to issue timely and adequate
announcements and advertisements concerning any such personnel
action if such action is intended to fill a vacancy (no matter
how such vacancy is created).
(2) Definitions
In this subsection:
(A) Indian preference laws
(i) In general
The term "Indian preference laws" means section 472 of this
title or any other provision of law granting a preference to
Indians in promotions and other personnel actions.
(ii) Exclusion
The term "Indian preference laws" does not include section
450e(b) of this title.
(B) Tribal organization
The term "tribal organization" means -
(i) the recognized governing body of any Indian tribe,
band, nation, pueblo, or other organized community, including
a Native village (as defined in section 1602(c) of title 43);
or
(ii) in connection with any personnel action referred to in
this subsection, any local school board to which the
governing body has delegated the authority to grant a waiver
under this subsection with respect to a personnel action.
(g) Compensation or annual salary
(1) In general
(A) Compensation for educators and education positions
Except as otherwise provided in this section, the Secretary
shall establish the compensation or annual salary rate for
educators and education positions -
(i) at rates in effect under the General Schedule for
individuals with comparable qualifications, and holding
comparable positions, to whom chapter 51 of title 5 is
applicable; or
(ii) on the basis of the Federal Wage System schedule in
effect for the locality involved, and for the comparable
positions, at the rates of compensation in effect for the
senior executive service.
(B) Compensation or salary for teachers and counselors
(i) In general
The Secretary shall establish the rate of compensation, or
annual salary rate, for the positions of teachers and
counselors (including dormitory counselors and home-living
counselors) at the rate of compensation applicable (on
January 8, 2002, and thereafter) for comparable positions in
the overseas schools under the Defense Department Overseas
Teachers Pay and Personnel Practices Act [20 U.S.C. 901 et
seq.].
(ii) Essential provisions
The Secretary shall allow the local school boards involved
authority to implement only the aspects of the Defense
Department Overseas Teachers Pay and Personnel Practices Act
pay provisions that are considered essential for recruitment
and retention of teachers and counselors. Implementation of
such provisions shall not be construed to require the
implementation of that entire Act.
(C) Rates for new hires
(i) In general
Beginning with the first fiscal year following January 8,
2002, each local school board of a Bureau school may
establish a rate of compensation or annual salary rate
described in clause (ii) for teachers and counselors
(including academic counselors) who are new hires at the
school and who had not worked at the school, as of the first
day of such fiscal year.
(ii) Consistent rates
The rates established under clause (i) shall be consistent
with the rates paid for individuals in the same positions,
with the same tenure and training, as the teachers and
counselors, in any other school within whose boundaries the
Bureau school is located.
(iii) Decreases
In a case in which the establishment of rates under clause
(i) causes a reduction in compensation at a school from the
rate of compensation that was in effect for the first fiscal
year following January 8, 2002, the new rates of compensation
may be applied to the compensation of employees of the school
who worked at the school as of January 8, 2002, by applying
those rates at each contract renewal for the employees so
that the reduction takes effect in three equal installments.
(iv) Increases
In a case in which adoption of rates under clause (i) leads
to an increase in the payment of compensation from that which
was in effect for the fiscal year following January 8, 2002,
the school board may make such rates applicable at the next
contract renewal such that -
(I) the increase occurs in its entirety; or
(II) the increase is applied in three equal installments.
(D) Use of regulations; continued employment of certain
educators
The establishment of rates of basic compensation and annual
salary rates under subparagraphs (B) and (C) shall not -
(i) preclude the use of regulations and procedures used by
the Bureau prior to April 28, 1988, in making determinations
regarding promotions and advancements through levels of pay
that are based on the merit, education, experience, or tenure
of the educator; or
(ii) affect the continued employment or compensation of an
educator who was employed in an education position on October
31, 1979, and who did not make an election under subsection
(p) (!3) as in effect on January 1, 1990.
(2) Post differential rates
(A) In general
The Secretary may pay a post differential rate, not to exceed
25 percent of the rate of compensation, for educators or
education positions, on the basis of conditions of environment
or work that warrant additional pay, as a recruitment and
retention incentive.
(B) Supervisor's authority
(i) In general
Except as provided in clause (ii), on the request of the
supervisor and the local school board of a Bureau school, the
Secretary shall grant the supervisor of the school
authorization to provide one or more post differential rates
under subparagraph (A).
(ii) Exception
The Secretary shall disapprove, or approve with a
modification, a request for authorization to provide a post
differential rate if the Secretary determines for clear and
convincing reasons (and advises the board in writing of those
reasons) that the rate should be disapproved or decreased
because the disparity of compensation between the appropriate
educators or positions in the Bureau school, and the
comparable educators or positions at the nearest public
school, is -
(I)(aa) at least 5 percent; or
(bb) less than 5 percent; and
(II) does not affect the recruitment or retention of
employees at the school.
(iii) Approval of requests
A request made under clause (i) shall be considered to be
approved at the end of the 60th day after the request is
received in the Central Office of the Bureau unless before
that time the request is approved, approved with a
modification, or disapproved by the Secretary.
(iv) Discontinuation of or decrease in rates
The Secretary or the supervisor of a Bureau school may
discontinue or decrease a post differential rate provided for
under this paragraph at the beginning of an academic year if -

(I) the local school board requests that such
differential be discontinued or decreased; or
(II) the Secretary or the supervisor, respectively,
determines for clear and convincing reasons (and advises
the board in writing of those reasons) that there is no
disparity of compensation that would affect the recruitment
or retention of employees at the school after the
differential is discontinued or decreased.
(v) Reports
On or before February 1 of each year, the Secretary shall
submit to Congress a report describing the requests and
approvals of authorization made under this paragraph during
the previous year and listing the positions receiving post
differential rates under contracts entered into under those
authorizations.
(h) Liquidation of remaining leave upon termination
Upon termination of employment with the Bureau, any annual leave
remaining to the credit of an individual covered by this section
shall be liquidated in accordance with sections 5551(a) and 6306 of
title 5, except that leave earned or accrued under regulations
promulgated pursuant to subsection (b)(10) of this section shall
not be so liquidated.
(i) Transfer of remaining sick leave upon transfer, promotion, or
reemployment
In the case of any educator who is transferred, promoted, or
reappointed, without break in service, to a position in the Federal
Government under a different leave system, any remaining leave to
the credit of such person earned or credited under the regulations
promulgated pursuant to subsection (b)(10) of this section shall be
transferred to such person's credit in the employing agency on an
adjusted basis in accordance with regulations which shall be
promulgated by the Office of Personnel Management.
(j) Ineligibility for employment of voluntarily terminated
educators
An educator who voluntarily terminates employment with the Bureau
before the expiration of the existing employment contract between
such educator and the Bureau shall not be eligible to be employed
in another education position in the Bureau during the remainder of
the term of such contract.
(k) Dual compensation
In the case of any educator employed in an education position
described in subsection (l)(1)(A) (!4) of this section who -
(1) is employed at the close of a school year;
(2) agrees in writing to serve in such position for the next
school year; and
(3) is employed in another position during the recess period
immediately preceding such next school year, or during such
recess period receives additional compensation referred to in
section 5533 of title 5, relating to dual compensation,
shall not apply to such educator by reason of any such employment
during a recess period for any receipt of additional compensation.
(l) Voluntary services
(1) In general
Notwithstanding section 1342 of title 31, the Secretary may,
subject to the approval of the local school board concerned,
accept voluntary services on behalf of Bureau schools.
(2) Federal employee protection
Nothing in this chapter requires Federal employees to work
without compensation or allows the use of volunteer services to
displace or replace Federal employees.
(3) Federal status
An individual providing volunteer services under this section
is a Federal employee only for purposes of chapter 81 of title 5
and chapter 171 of title 28.
(m) Proration of pay
(1) Election of employee
(A) In general
Notwithstanding any other provision of law, including laws
relating to dual compensation, the Secretary, at the election
of the employee, shall prorate the salary of an employee
employed in an education position for the academic school year
over the entire 12-month period.
(B) Election
Each educator employed for the academic school year shall
annually elect to be paid on a 12-month basis or for those
months while school is in session.
(C) No loss of pay or benefits
No educator shall suffer a loss of pay or benefits, including
benefits under unemployment or other Federal or federally
assisted programs, because of such election.
(2) Change of election
During the course of such year the employee may change election
once.
(3) Lump sum payment
That portion of the employee's pay which would be paid between
academic school years may be paid in a lump sum at the election
of the employee.
(4) Nonapplicability
This subsection applies to those individuals employed under the
provisions of this section or title 5.
(5) Definitions
For purposes of this subsection, the terms "educator" and
"education position" have the meanings contained in paragraphs
(1) and (2) of subsection (o) of this section.
(n) Extracurricular activities
(1) Stipend
(A) In general
Notwithstanding any other provision of law, the Secretary may
provide, for each Bureau area, a stipend in lieu of overtime
premium pay or compensatory time off.
(B) Provision to employees
Any employee of the Bureau who performs additional activities
to provide services to students or otherwise support the
school's academic and social programs may elect to be
compensated for all such work on the basis of the stipend.
(C) Nature of stipend
Such stipend shall be paid as a supplement to the employee's
base pay.
(2) Election not to receive stipend
If an employee elects not to be compensated through the stipend
established by this subsection, the appropriate provisions of
title 5 shall apply.
(3) Applicability of subsection
This subsection applies to all Bureau employees, regardless of
whether the employee is employed under this section or title 5.
(o) Definitions
In this section:
(1) Education position
The term "education position" means a position in the Bureau
the duties and responsibilities of which -
(A)(i) are performed on a school year basis principally in a
Bureau school; and
(ii) involve -
(I) classroom or other instruction or the supervision or
direction of classroom or other instruction;
(II) any activity (other than teaching) which requires
academic credits in educational theory and practice equal to
the academic credits in educational theory and practice
required for a bachelor's degree in education from an
accredited institution of higher education;
(III) any activity in or related to the field of education
notwithstanding that academic credits in educational theory
and practice are not a formal requirement for the conduct of
such activity; or
(IV) support services at, or associated with, the site of
the school; or
(B) are performed at the agency level of the Bureau and
involve the implementation of education-related programs other
than the position for agency superintendent for education.
(2) Educator
The term "educator" means an individual whose services are
required, or who is employed, in an education position.
(p) Covered individuals; election
This section shall apply with respect to any educator hired after
November 1, 1979 (and to any educator who elected for coverage
under that provision after November 1, 1979) and to the position in
which such individual is employed. The enactment of this section
shall not affect the continued employment of an individual employed
on October 31, 1979, in an education position, or such person's
right to receive the compensation attached to such position.
(q) Furlough without consent
(1) In general
An educator who was employed in an education position on
October 31, 1979, who was eligible to make an election under
subsection (p) (!5) at that time, and who did not make the
election under such subsection, may not be placed on furlough
(within the meaning of section 7511(a)(5) of title 5,(!6) without
the consent of such educator for an aggregate of more than 4
weeks within the same calendar year, unless -
(A) the supervisor, with the approval of the local school
board (or of the education line officer upon appeal under
paragraph (2)), of the Bureau school at which such educator
provides services determines that a longer period of furlough
is necessary due to an insufficient amount of funds available
for personnel compensation at such school, as determined under
the financial plan process as determined under section 2009(b)
(!7) of this title; and
(B) all educators (other than principals and clerical
employees) providing services at such Bureau school are placed
on furloughs of equal length, except that the supervisor, with
the approval of the local school board (or of the agency
education line officer upon appeal under paragraph (2)), may
continue one or more educators in pay status if -
(i) such educators are needed to operate summer programs,
attend summer training sessions, or participate in special
activities including curriculum development committees; and
(ii) such educators are selected based upon such educator's
qualifications after public notice of the minimum
qualifications reasonably necessary and without
discrimination as to supervisory, nonsupervisory, or other
status of the educators who apply.
(2) Appeals
The supervisor of a Bureau school may appeal to the appropriate
agency education line officer any refusal by the local school
board to approve any determination of the supervisor that is
described in paragraph (1)(A) by filing a written statement
describing the determination and the reasons the supervisor
believes such determination should be approved. A copy of such
statement shall be submitted to the local school board and such
board shall be afforded an opportunity to respond, in writing, to
such appeal. After reviewing such written appeal and response,
the education line officer may, for good cause, approve the
determination of the supervisor. The educational line officer
shall transmit the determination of such appeal in the form of a
written opinion to such local school board and to the supervisor
identifying the reasons for approving such determination.
(r) Stipends
The Secretary is authorized to provide annual stipends to
teachers who become certified by the National Board of Professional
Teaching Standards, the National Council on Teacher Quality, or
other nationally recognized certification or credentialing
organizations.