This story has been updated.
The House on Wednesday passed legislation that makes it easier for the head of the Veterans Affairs Department to fire and demote senior executives, in response to a growing scandal over allegations that VA employees falsified documents related to patient care.
The 2014 VA Management Accountability Act (H.R. 4031) would give the head of the department “greater authority” to get rid of poor performers in the Senior Executive Service “in the same manner a member of Congress can remove a member of their staff,” according to background on the bill posted on the website of the House Veterans’ Affairs Committee. The VA secretary could also demote the senior executive to another grade within the General Schedule pay scale.
The vote was 390-33 in favor of the bill, giving it the two-thirds majority needed to pass.
“The Senate should pass it swiftly so President Obama and Secretary [Eric] Shinseki can start utilizing that authority,” said House Majority Leader Eric Cantor, R-Va., in a press release sent out before debate began, and after Obama gave a 20-minute White House briefing on the topic. “Time is of the essence, for the sake of our veterans who deserve better. Senior leaders at the VA must be held accountable, and the White House must continue to answer for the treatment of our veterans.” Sen. Marco Rubio, R-Fla., has introduced a companion bill in that chamber.
But federal agencies, including VA, already have the power to remove senior executives who receive unsatisfactory performance ratings – removal can mean termination or a demotion. Senior executives must be removed from the SES if they receive two “unsatisfactory” ratings within five consecutive years, or two “less than fully successful” ratings within three consecutive years. To begin the removal process, the agency must provide a 30-day written notice to the employee outlining the action. The Merit Systems Protection Board can review the action and make a non-binding recommendation to the agency; however, employees cannot appeal the actual performance rating, resulting in removal from the SES.
The Senior Executives Association has strongly opposed the bill, calling it unnecessary given the current authority that agencies possess, and distracting from the real issue of providing veterans with the highest quality health care. “Passage of this legislation will politicize the SES corps and will create a culture where quality managers and executives choose to work elsewhere rather than lend their talents to the VA where they may be subject to a trial by media,” said SEA President Carol Bonosaro in a May 20 letter to House members, urging them to vote against H.R. 4031.
Essentially the legislation deprives career VA senior executives of due process, the organization argued, which makes it unconstitutional. “SEA believes the problem employees should be held accountable but that an entire corps should not be placed at risk due to the poor performance or misconduct of a few,” Bonosaro wrote. “SEA also supports meaningful efforts to identify policies that strengthen employee accountability systems across government. This legislation does not achieve the goal of accountability and instead is a quick fix sound-bite that does not address the very real issues of backlogs and access to care.” Bonosaro also pointed out that one-third of VA senior executives are themselves veterans.
The legislation’s sponsor, Rep. Jeff Miller, R-Fla., said in remarks on the floor Wednesday that the current removal system is “calcified in bureaucratic red tape” and that the VA secretary is “held back by a failed civil service system” that makes it nearly impossible to fire poor performers. Miller also added that encouraging action against a few poorly-performing senior executives was not meant “to tarnish” the hard work of the vast majority of VA employees, “who come to work every day and, by and large, provide excellent care to our veterans.”
House Minority Whip Steny Hoyer said during debate that the legislation is “a knee-jerk reaction to a bad situation, painting with a very broad brush, and undermining a system that can work, has worked and has the mechanisms to work.” The Maryland Democrat said no lawmaker should be in favor of a bill that “turns senior executives into at-will employees.” H.R. 4031 is a “slippery slope to undoing the careful civil service protections that have been in place for decades,” Hoyer added.
Miller fired back: “We’ve just been told this is a knee-jerk reaction to a crisis. It’s the only action to a crisis.” The Florida Republican added that if the bill becomes law, then the department will have to notify Congress within 30 days of decisions to fire or demote members of the SES. “If you don’t do your job, you get fired,” he said.
Shinseki has said he already has sufficient authority to fire poor performers. During a recent Senate hearing, Shinseki said VA has forced out -- through transfers, terminations or involuntary retirements -- 3,000 workers in each of the last two years, some of whom were senior executives. Data from the Office of Personnel Management show about 4,300 VA employees were removed or terminated from federal service for disciplinary reasons, but that figure does not include forced transfers or retirements. In fiscal 2012, there were 448 career SES employees at VA.
H.R. 4031 has gained momentum in the past few weeks because of the burgeoning management crisis at VA. The department’s inspector general has launched an investigation amid allegations that veterans were put on secret waiting lists for medical appointments at some VA hospitals, and that employees falsified documents. The reports surfaced after the recent deaths of vets in Phoenix, Ariz., who were waiting for care. The House leadership fast-tracked the legislation through the chamber for Wednesday’s floor vote, bypassing the traditional committee markup process.
Many veterans’ groups, including the American Legion, support the legislation. The bill has 150 co-sponsors, including eight Democrats.
The White House did not outright oppose Miller's bill. "The administration shares and supports the goals of the bill -- ensuring accountability at the VA," said an administration official. "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."
Obama met Wednesday with Shinseki, telling reporters in a briefing afterward that any employees who falsified documents or “cooked the books” will be held accountable and “punished.” But he also cautioned that investigators need time to do their jobs and uncover the facts. The president made a point to praise VA employees who every day “do outstanding work and put everything that they’ve got into making sure our veterans get the care, benefits and services that they need.”
Obama said he receives letters from veterans praising VA doctors, nurses and facilities. “I don’t want to lose sight of the fact that there are a lot of folks in the VA who are doing a really good job and working really hard at it,” he said. But, he added, “It never excuses the possibility that someone might have been trying to manipulate the data in order to themselves look better or make their facility look better.”