25 USC 2012 - Indian education personnel

U.S Code last checked for updates: Oct 16, 2024

§ 2012.

Indian education personnel

(a)

In general

(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); 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), 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), 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

 So in original. The word “that” probably should not appear.

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

(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);

(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

(B)

Determination of accuracy

(C)

False statements

(D)

Conditional appointment for national provision

(3)

Statutory construction

(4)

Appeals

(A)

By supervisor

(i)

In general

(ii)

Action by board

(iii)

Overturning of determination

(iv)

Transmission of determination

(B)

By education line officer

(i)

In general

(ii)

Action by board

(iii)

Overturning of determination

(iv)

Transmission of determination

(5)

Other appeals

(A)

In general

(B)

Action by board

(C)

Overturning of determination

(D)

Transmission of 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

(ii)

Notification of board

(iii)

Determination by board

(B)

Appeals

(i)

In general

(ii)

Decision of agency education line officer

(iii)

Form of decision

(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

(2)

Definitions

In this subsection:

(A)

Indian preference laws

(i)

In general

(ii)

Exclusion

(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

(ii)

Essential provisions

(C)

Rates for new hires

(i)

In general

(ii)

Consistent rates

(iii)

Decreases

(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

 See References in Text note below.

as in effect on January 1, 1990.

(2)

Post differential rates

(A)

In general

(B)

Supervisor’s authority

(i)

In general

(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

(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

(h)

Liquidation of remaining leave upon termination

(i)

Transfer of remaining sick leave upon transfer, promotion, or reemployment

(j)

Ineligibility for employment of voluntarily terminated educators

(k)

Dual compensation

In the case of any educator employed in an education position described in subsection (l)(1)(A) 4

 So in original. Subsec. (l)(1) does not contain subpars.

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

(2)

Federal employee protection

(3)

Federal status

(m)

Proration of pay

(1)

Election of employee

(A)

In general

(B)

Election

(C)

No loss of pay or benefits

(2)

Change of election

(3)

Lump sum payment

(4)

Nonapplicability

(5)

Definitions

(n)

Extracurricular activities

(1)

Stipend

(A)

In general

(B)

Provision to employees

(C)

Nature of stipend

(2)

Election not to receive stipend

(3)

Applicability of subsection

(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

(p)

Covered individuals; election

(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) ³ 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 5,5

 So in original. The comma probably should be a closing parenthesis.

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) 6

 So in original. Probably should be section “2010(b)”.

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

(r)

Stipends

(Pub. L. 95–561, title XI, § 1132, as added Pub. L. 107–110, title X, § 1042, Jan. 8, 2002, 115 Stat. 2044.)

cite as: 25 USC 2012

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