Former GOP Presidential Candidate Pushes to Make It Easier to Fire All VA Employees

Sen. Marco Rubio, R-Fla., speaks at a campaign event in Florida in mid-March, before he dropped out of the presidential race. Sen. Marco Rubio, R-Fla., speaks at a campaign event in Florida in mid-March, before he dropped out of the presidential race. Gerald Herbert/AP

Republican sponsors of legislation that would make it easier to fire all employees at the Veterans Affairs Department are worried the final bill will lack strong accountability provisions.

“We hope you realize that any piece of comprehensive veterans’ legislation that doesn’t provide the VA secretary swift and comprehensive disciplinary authority for all VA employees misses the true mark on what ails the department,” wrote House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., and Sen. Marco Rubio, R-Fla., in a March 31 letter to Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga. “Not including such strong accountability language would be a disservice to both taxpayers and our nation’s veterans.”

The House passed its version (H.R. 1994) of the 2015 VA Accountability Act in July; senators are still negotiating on the chamber’s bill (S. 1082) after Sen. Richard Blumenthal, D-Conn., blocked Rubio’s effort in October to expedite floor consideration of the legislation via unanimous consent. Blumenthal, who is the ranking member of the Senate Veterans’ Affairs Committee, had offered an alternative to S. 1082. In October floor remarks, he agreed there needed to be more accountability at the VA, but said that any legislation affecting federal personnel laws also needed to be “fully constitutional.” Rubio’s bill “fails to provide sufficient notice in advance of any firing,” Blumenthal said at the time.

The committee leadership in the two chambers have been working since December on a big veterans’ omnibus package that includes various items, including changes to the hiring and firing of VA employees, as well as provisions to improve vets’ health care and other benefits. Isakson has said he wants to get it to President Obama before Memorial Day in May.

“We are ironing out the final details and hope to introduce soon,” said Lauren Gaydos, spokeswoman for the majority on the Senate VA Committee. “Sen. Isakson is sincerely appreciative of the bipartisan, bicameral collaboration that has paved the way for this sweeping reform legislation which he believes will be able to pass the Senate.”

But Miller and Rubio are now “concerned” that Isakson has “halted” negotiations on the accountability provisions contained in H.R. 1994 and S. 1082, and “may be taking an approach that favors reaching a deal with the [Obama] administration or others at any cost, regardless of whether it actually addresses the VA’s many problems or pays for new programs in a responsible way,” the letter stated.

Gaydos said that Isakson “agrees that there are many problems at the Department of Veterans Affairs that must be addressed, the most pressing of which is the need for accountability at the department.”

The VA Accountability Act essentially would expand to the entire VA workforce the authority of the 2014 Veterans Access, Choice and Accountability Act, which aimed to make it easier to get rid of senior executives engaged in wrongdoing at the department by shortening the employee notification and appeals process. However, the Merit Systems Protection Board this year already has overturned two demotions and one firing that the department proposed for three senior executives under the 2014 law, raising questions about the intent of Congress, the implementation of the law by VA and MSPB, and preservation of constitutional due process rights.

Under both versions of the VA Accountability Act, a disciplined employee could file an appeal to the MSPB within seven days of his or her removal. MSPB would have to rule within 45 days of the appeal filing. Due process for most of the federal workforce now requires that agencies notify employees within 30 days of an adverse action (including removal), and provide them with seven days to respond and an opportunity to defend themselves.

The MSPB’s internal guidelines for all non-Choice Act appeals call for a turnaround time of 120 days from the date an employee files an appeal to an administrative judge’s initial decision. Before the agency got hit with an influx of appeals from employees who were furloughed in 2013 because of sequestration, the agency on average issued initial decisions in about 90 days. Under the 2014 Choice Act, which applies to VA senior executives, MSPB has to render a decision within 21 days.

Several groups have expressed support for the 2015 VA Accountability Act, including Veterans of Foreign Wars, Iraq and Afghanistan Veterans of America, and Concerned Veterans for America. Others strongly oppose the legislation, including the American Federation of Government Employees, which represents more than 220,000 non-management VA employees.

Miller and Rubio in their letter to Isakson cited some recent examples of employees who are still working at the VA and “by any measure of common sense, do not deserve to be employed at the department.” One VA employee who works at the facility in Puerto Rico was reinstated after she was fired as a result of a 2015 armed robbery conviction.

“This is only the latest example in what is a steady cascade of real-life examples demonstrating the outright dysfunction of the civil service rules governing the VA,” the Florida lawmakers wrote.

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