Burden of Proof: The New Reality for Senior Execs at VA

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Sorry, our hands are tied.

That was the message the Merit Systems Protection Board -- the quasi-judicial agency tasked with adjudicating federal employees’ appeals against firings and demotions -- delivered in issuing its final rule to implement the recently approved law to make it easier for the Veterans Affairs Department to fire senior executives.

MSPB declined to make any changes to the interim rule it put out in August, despite receiving a slew of comments asking the agency to soften the blow their guidance would potentially have on VA employees in the Senior Executive Service. While MSPB said it “understands the position of the commenters,” the agency explained it had to keep with congressional intent and lacked the authority to make any significant changes.

The 2014 Veterans Access to Care through Choice, Accountability and Transparency Act allows VA to fire senior executives immediately, with paychecks cut off immediately. The employees would then have seven days to file their appeal to MSPB, which in turn would have 21 days to issue a ruling.

MSPB Chairwoman Susan Tsui Grundmann previously voiced major concerns with the law, noting the agency has 120 days to adjudicate all other cases. She also complained the law removed the right for a secondary appeal to the central, Senate-confirmed board, instead making final the regional administrative judge’s decision. That three-member board sent a letter to the President Obama to air their grievances with the law.

“We don’t create the laws, we just . . . implement them,” Grundmann told Government Executive in August.

That sentiment was reiterated in the final rule when, for example, MSPB said it had to eliminate certain procedures in the discovery phrase “given the statutorily-required time limits in covered appeals.”

“The Board has a high degree of confidence in the ability of its administrative judges to fairly conduct the expedited review required [by the law],” MSPB wrote.

In another instance, a commenter asked the board to certify the Office of Special Counsel could still prosecute VA management, but MSPB said the issue would have to be litigated in court. Such a provision would not “further [the] goal” of adjudicating appeals in 21 days, it added.

MSPB said one commenter “correctly” noted the regulation puts the burden of proof on senior executives to prove their innocence, rather than on the agency to prove their guilt. The rule “creates a presumption that the penalty (removal or transfer) was warranted.” MSPB said in crafting the guidance, the agency was simply seeking to interpret congressional intent.

Another party requested MSPB include a provision that its appeal decision would not prevent the decision from being re-litigated elsewhere because the changes to VA senior executives’ appeal rights violate due process. Again, the board was left lamenting it “lacks the authority to determine the constitutionality of a statute.”

MSPB pointed out it has not yet received any appeals as spelled out in the VA reform bill. The board said it may reexamine its procedures “in light of actual experience.”

The silver lining for VA senior executives? The agency is allowing the malfeasant managers to resign before the bureaucratic process can finalize their terminations. 

(Image via  / Shutterstock.com)

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