This story has been updated.
The group representing senior executives in the federal government on Friday called a proposal that would prevent career executives at the Veterans Affairs Department from appealing disciplinary actions before an independent agency “farcical.”
The idea, which VA Deputy Secretary Sloan Gibson came up with, recommends making all VA senior executives Title 38 employees, meaning that they would not have the same rights as Title 5 employees to appeal disciplinary actions to the Merit Systems Protection Board. In other words, the department could demote or fire senior executives without cause; that decision would be final, and not subject to reversal by the independent agency that adjudicates appeals of “adverse personnel actions” from federal employees who have been fired, suspended, furloughed, demoted or had their pay cut.
The proposal would affect roughly 350 senior executives at VA.
Jason Briefel, interim president of the Senior Executives Association, said such a move “will surely lead to the politicization of the delivery of care and benefits throughout the entire VA workforce, as these at-will executives will now serve at the complete pleasure of the political arm of the VA.” Briefel said SEA has “reached out to our colleagues on the Hill to learn about the proposal, and look forward to seeing more details.”
The latest development in the saga over disciplining VA career employees is an about-face for the department, which until this week had maintained that it had sufficient authority to fire employees. But for the third time in less than a month, an administrative judge last week reversed the VA’s decision to discipline a senior executive accused of wrongdoing -- and the VA was not happy about it. The MSPB’s decision to reverse the removal of Linda Weiss, who was the director of the Albany Stratton VA Medical Center in upstate New York, came on the heels of two other rulings overturning Gibson’s decision to demote senior executives Diana Rubens and Kimberly Graves.
“Under the Choice Act, my judgment is owed considerable deference by the MSPB,” Gibson said in a statement following the Weiss decision. “Yet based on this and other recent decisions, it appears the MSPB does not agree with Congress’ or the VA’s interpretation of the extent of my authority and has, once again, substituted its judgment for mine and demonstrated a willingness to second guess the VA’s application of legitimate high standards of accountability.”
A statement on MSPB’s website defended the agency’s decision-making. “In response to these rulings, some have suggested that MSPB is protecting poor-performing employees at the Veterans Affairs Department," the statement said. "These suggestions are baseless and unfair.” The statement went on to say that MSPB is “required to apply laws created by Congress and legal precedent, as established by federal courts, when adjudicating appeals. With respect to burdens of proof applied by MSPB, they are contained in Title 5 of the United States Code. Moreover, it should be noted that the 2014 Act made no changes to these burdens of proof.” VA used authority in the 2014 Veterans Access, Choice and Accountability Act, to punish Rubens, Graves, and Weiss.
Briefel said the 2014 law, which expedites the disciplinary process for senior executives at VA and was intended to make it easier to fire poor performers and those engaged in misconduct at the department, has “backfired” on the VA and Congress, in part, because it does not allow another review or appeal of the MSPB judge’s decision. The MSPB judge’s decision is final under the law.
“Had Congress and the VA passed a lawful and fair statute in 2014 or used the existing Title 5 authority, surely the VA could have appealed these recent decisions to test in the third branch of our government, our federal court system, whether these MSPB judges were truly in the wrong,” Briefel said. “Bad politics make bad policy.”
Briefel also questioned why the VA and the Obama administration agreed to the expedited removal authority for senior executives under the 2014 law, but objected to extending that authority to the rest of the department workforce, which H.R. 1994 would do. The president has threatened to veto the bill if it reaches him.
“SEA asks why Congress, the VA and this administration believe it is okay in our country to have two classes of citizens: those whose rights are in full conformance with our Constitution and those whose rights are second class,” Briefel said.
Gibson, VA Secretary Bob McDonald and the leadership of the House and Senate Veterans’ Affairs Committees met Tuesday to discuss the idea of stripping executives' appeal rights, according to a House aide. McDonald mentioned the idea on Wednesday when he testified before the House committee on the department’s fiscal 2017 budget proposal.
“We have to do a lot more work on it, it’s just preliminary,” McDonald said on Wednesday about the proposal. VA media relations director James Hutton on Thursday reiterated that the proposal is a work in progress and no formal legislation has been submitted. Lawmakers are crafting a legislative provision now that encapsulates VA’s proposal, according to a House aide, adding that they are aiming to get something enacted this year.
“Republican support for this type of measure is all but assured,” the aide said.
Lauren Gaydos, press secretary for the Senate Veterans’ Affairs Committee, said that Chairman Johnny Isakson, R-Ga., “is looking forward to receiving a legislative proposal from the VA to convert SES employees to Title 38, and is encouraged that the secretary recognizes the need to improve the system of accountability at the VA.” House VA Committee Chairman Jeff Miller, R-Fla., also supports the idea.
The offices of Rep. Corrine Brown, D-Fla., and Sen. Richard Blumenthal, D-Conn., did not respond requests for comment on the proposal. Brown and Blumenthal are the top Democrats on the VA panels.
Title 38, which refers to the part of the U.S. Code overseeing certain VA employees, gives the department more flexibility in disciplining workers, but it also provides more wiggle room in setting pay and expediting hiring for certain jobs. Title 38 VA employees fall into two categories – pure and hybrid.
Pure Title 38 employees don’t have the MSPB appeal rights as Title 5 employees do, but currently can appeal disciplinary decisions to an internal VA disciplinary appeals board, and after that, to U.S. federal court. It’s unclear whether that would factor into whatever legislative proposal is drafted based on Gibson’s idea. Hybrid Title 38 employees have the same rights to appeal adverse actions to MSPB as Title 5 employees have. The separate title and the two tracks within it emerged as a way to help the VA secretary fill certain jobs faster through the federal hiring process.
Correction: An earlier version of this story incorrectly stated that the VA proposal to move senior executives from Title 5 to Title 38 meant they could be fired for cause. Title 38 status would allow them to be fired without cause, making them at-will employees.
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