Is It Constitutional to Make VA Execs At-Will Employees?

Matt York/AP

A bill to ease the path to firing senior executives at the Veterans Affairs Department could face constitutional challenges, according to legal experts familiar will federal employment law.

The 2014 VA Management Accountability Act, which has cleared the House and a Senate committee, would allow the VA secretary to waive the normal 30-day period in which federal employees are notified of their forthcoming termination or demotion and can challenge the decision. Legal experts, however, said the bill is unconstitutional on the grounds it violates due process protections.

Cheri Cannon, an attorney for the law firm Tully Rinkey who has held several Senior Executive Service positions across government and headed SES policy at the Air Force, said senior executives are afforded essentially the same rights as General Schedule workers under Title 5 of the U.S. Code. That statute guarantees federal employees due process protections at the workplace.

Additionally, Cannon said, the House-backed bill violates a precedent established by the Supreme Court ruling in Cleveland Board of Education v. Loudermill, which has previously been applied to the federal workforce.

The U.S. Constitution’s Fifth and 14th amendments state that the U.S. government cannot “deprive any person of life, liberty or property, without due process of law.” The Supreme Court precedent in the Loudermill case defines a public sector job as the employee’s property, and therefore employees cannot be removed or demoted from such jobs without due process, Cannon said.

Every SES employee being demoted or fired for misconduct has the right to know the charges against them, to respond in a meaningful way and to see the evidence the agency used to make its decision, said Cannon, the former chief counsel at the Merit Systems Protection Board. To remove this right, as the VA Management Accountability Act would do, would represent a violation of the Fifth Amendment, she said.

Cannon also noted several technical issues with the way the bill is written. The legislation would amend Title 38, while the federal statute that regulates senior executives is Title 5. It would also reform the performance provision of the employees’ protections. The accusations against VA executives, however -- creating fraudulent records relating to wait times at the agency’s hospitals or destroying them entirely -- represent misconduct, not poor performance, an important distinction.

Several lawmakers took issue with VA’s ability to place misbehaving employees on paid administrative leave. If their misconduct was criminal, however, VA already can suspend the workers without pay and reduce the notice window from 30 days to seven.

Debra Roth, a partner at Shaw Bransford and Roth, said if the bill became law, it would be the first step toward creating a partisan civil service.

“Everybody can be fired,” Roth said of the bill’s provision to make VA’s senior executives “at will” employees, “for any reason or no reason.” She added the 1978 Civil Service Reform Act intentionally created a civil service free of political influence, both so employees were not hired for political reasons and so goods and services were delivered without partisan bias.

“If you put [partisanship] in the civil service, you no longer have a civil service,” Roth said.

A spokesman for Rep. Jeff Miller, R-Fla., the bill’s author, defended the bill.

“We believe H.R. 4031 is on firm constitutional footing and the case that you cite does not affect federal civil servants,” the spokesman said.

At a press conference on Thursday, the VA Committee chairman criticized VA Secretary Eric Shinseki for failing to fire enough people. 

“The secretary says he has the tools to do the job,” Miller said. “He has not used them. We are going to give him more tools.”

For his part, Shinseki said he has forced out more than 6,000 employees in the last two years.

The White House did not dismiss the bill outright, but noted in a statement after House passage that, “We do have some concerns that some provisions could result in significant litigation, which would divert valuable time and resources from VA’s accountability efforts and its core mission of delivering quality services to our veterans. But we’ve been very clear we want to work with Congress on specific language issues and look forward to discussing the bill going forward."

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
Close [ x ] More from GovExec

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • Sponsored by G Suite

    Cross-Agency Teamwork, Anytime and Anywhere

    Dan McCrae, director of IT service delivery division, National Oceanic and Atmospheric Administration (NOAA)

  • Data-Centric Security vs. Database-Level Security

    Database-level encryption had its origins in the 1990s and early 2000s in response to very basic risks which largely revolved around the theft of servers, backup tapes and other physical-layer assets. As noted in Verizon’s 2014, Data Breach Investigations Report (DBIR)1, threats today are far more advanced and dangerous.

  • Sponsored by One Identity

    One Nation Under Guard: Securing User Identities Across State and Local Government

    In 2016, the government can expect even more sophisticated threats on the horizon, making it all the more imperative that agencies enforce proper identity and access management (IAM) practices. In order to better measure the current state of IAM at the state and local level, Government Business Council (GBC) conducted an in-depth research study of state and local employees.

  • Sponsored by Aquilent

    The Next Federal Evolution of Cloud

    This GBC report explains the evolution of cloud computing in federal government, and provides an outlook for the future of the cloud in government IT.

  • Sponsored by LTC Partners, administrators of the Federal Long Term Care Insurance Program

    Approaching the Brink of Federal Retirement

    Approximately 10,000 baby boomers are reaching retirement age per day, and a growing number of federal employees are preparing themselves for the next chapter of their lives. Learn how to tackle the challenges that today's workforce faces in laying the groundwork for a smooth and secure retirement.

  • Sponsored by Hewlett Packard Enterprise

    Cyber Defense 101: Arming the Next Generation of Government Employees

    Read this issue brief to learn about the sector's most potent challenges in the new cyber landscape and how government organizations are building a robust, threat-aware infrastructure

  • Sponsored by Aquilent

    GBC Issue Brief: Cultivating Digital Services in the Federal Landscape

    Read this GBC issue brief to learn more about the current state of digital services in the government, and how key players are pushing enhancements towards a user-centric approach.


When you download a report, your information may be shared with the underwriters of that document.