Panel Approves Bill Allowing VA Secretary to Claw Back Pension Benefits From Misbehaving Feds

Rep. Jeff Miller, R-Fla., sponsored the bill. Rep. Jeff Miller, R-Fla., sponsored the bill. Caleb Smith/House Speaker John Boehner

A House subcommittee on Thursday approved legislation that would cap the number of Senior Executive Service members eligible for bonuses, and would give the VA secretary the power to strip pension benefits from department senior executives who are convicted of a crime that influenced their job performance.

The 2015 Increasing the Department of Veterans Affairs Accountability to Veterans Act (H.R. 473) contains several provisions aimed at giving the VA secretary more tools to hold misbehaving senior executives accountable, but some of the provisions worry senior executives and their advocates.

“We are concerned that the forced distribution of ratings at the outstanding and exceeds fully successful level challenges an underpinning factor of the SES system that agencies make meaningful distinctions in performance,” said Senior Executives Association President Carol Bonosaro in an April 15 letter to Reps. Brad Wenstrup, R-Ohio, and Mark Takano, D-Calif., the chairman and ranking member, respectively, of the House Veterans’ Affairs Subcommittee on Economic Opportunity. “Senior executives face a high barrier of entry into the corps; therefore a normal distribution of performance should not be expected nor imposed.”

The legislation, sponsored by House Veterans’ Affairs Committee Chairman Rep. Jeff Miller, R-Fla., would allow no more than 30 percent of VA’s senior executives to receive top performance ratings and qualify for bonuses. It also would require senior executives to change jobs every five years to reinvigorate the idea of a mobile SES. Those job reassignments can happen on a rolling basis so that all VA senior executives aren't switching jobs at the same time.

The subcommittee reported out H.R. 473, along with several other bills affecting veterans, during a Thursday markup.

The legislation would allow the VA secretary to strip pension benefits from VA senior executives who are convicted of a crime that influenced their job performance, and then fired. It would prevent senior executives about to be fired because they were convicted of such a felony, but who instead retire, from receiving their full retirement benefits. The secretary would be allowed to take away the government contribution portion of the pension for the time period in which the employee was engaged in behavior warranting removal. The rest would be returned to the employee in a lump sum. A third party entity would review the secretary's decision.

Bonosaro said SEA supported that provision. “This provision should be narrowly tailored to ensure that the felony conviction is final (no pending appeals) and that the conviction is tied to their job (e.g., embezzlement of funds),” she said. “The legislation should also make clear that the pension clawback is only for the time period in which the felony is committed, as determined by the courts and not the secretary.”

In addition, H.R. 473 would reduce to 14 days the amount of paid administrative leave for top department officials under investigation, unless the secretary can show good reason for extending that leave.

During Thursday’s markup, Wenstrup made some changes to the bill based on input from the VA and other stakeholders, including adding a new requirement that senior executives’ performance evaluations include a component assessing how effective SESers are at “employee engagement.”

Bonosaro said “it is unclear how efforts of an executive to maintain satisfaction and commitment among employees under their supervision would be assessed and measured for the purpose of informing an executive’s performance appraisal. Further it is not unusual that executives seeking to improve performance may find themselves the subjects of union grievances or EEO complaints which are later found to have no merit.”

The legislation now heads to the full committee, where it could be further amended.

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