An array of groups and lawmakers on Wednesday endorsed a bill to expedite the firing of Veterans Affairs Department employees, saying it would improve accountability efforts while maintaining important due process protections.
VA officials also threw their support behind the measure during the Senate Veterans' Affairs Committee hearing, though they said minor corrections were required to avoid constitutionality concerns that plagued previous efforts to reform the disciplinary process at the department. The Justice Department raised the concerns to VA after reviewing the legislative text for any potential problems.
Despite the bipartisan support for the bill, some groups remained opposed. One sticking point was a provision to shift the burden of proof necessary to defend negative personnel actions, which would require a judge to uphold a department decision if it showed substantial evidence against the employee in question. Current statute requires VA to prove a majority of evidence supports its decision.
J. David Cox, president of the American Federation of Government Employees, said lowering the evidentiary standard and hastening the disciplinary process generally was unfair and would lead to mass political firings.
“I understand that bashing employees and taking away their rights is good politics, but it is bad government,” Cox said. “I promise you that under this bill more employees will be fired for bad reasons than good reasons.”
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In addition to those changes, the bill would allow the department’s secretary to fire, suspend or demote an employee with only 15 days notice. Employees would be able to appeal to the Merit Systems Protection Board in an expedited timeframe. Unionized and Senior Executive Service employees would each have distinct, internal grievance processes that would have to be completed within 21 days. VA could revoke bonuses from employees found to have engaged in misconduct or poor performance prior to the award and dock retirement benefits from workers found guilty of a felony that could have affected their work.
In response to questions from Sen. Jon Tester, D-Mont., one of the bill's cosponsors and the committee’s ranking member, VA’s acting general counsel attempted to downplay concerns about the bill. She said the SES appeal process was not more favorable than the proposed system for the rank and file, and that changes to the evidentiary standard were necessary to reduce the disciplinary timeframe.
Sen. Marco Rubio, R-Fla., who introduced the bill, said the majority of VA employees are good, competent and serve veterans admirably.
“Nothing in this bill is designed to punish them, stigmatize or in any way hurt them,” Rubio said. “To the contrary, it’s designed to reward them.”
Sen. Johnny Isakson, R-Ga., agreed it was necessary for the success of those employees to root out the worst employees.
“One bad apple can drag down an entire agency,” Isakson said, “even one as big as VA.”
Veterans service organizations such as Veterans of Foreign Wars, Disabled American Veterans and the American Legion announced their support for the bill, despite a few reservations. Previously, leadership in the House Veterans' Affairs Committee, which has passed its own firing reform bill, endorsed the measure and said they looked forward to passing it.
The committee’s counterparts in the House narrowly passed a workforce bill of their own Wednesday, advancing a measure to curb the use of official time at the department. Employees would be limited to the representational union activity they conduct on the taxpayers’ dime to a maximum of 50 percent of their work hours. Those involved directly in patient care would see their union activity capped at just one-quarter of their time at work. The measure would also require tighter oversight and tracking of the hours of official time in which VA employees engage.
The bill would extend the probationary period during which employees are essentially at-will from 12 to 18 months.
Members of AFGE, which represents about 230,000 VA workers, filled the committee room during the markup. The Federal Workers Alliance, a consortium of groups collectively representing 300,000 employees across federal government, issued a letter separate from AFGE to condemn the bill. Official time representatives provide a forum for VA employees to blow the whistle on wrongdoing, FWA said, and provide a faster and less costly avenue for management to resolve personnel issues.
Rep. Phil Roe, R-Tenn., took issue with that assessment.
“This is not a Republican attack on unions,” said Roe, who chairs the committee. “This is a common sense change."
Democrats on the committee, who voted en masse against the bill, said it makes sense to have employees work full time on official time so managers always have someone available to sort out grievance issues quickly. The measure will now head to the House floor for a vote.
CLARIFICATION: The story has been updated to reflect that while veterans service organizations do support the accountability bill, they have a few reservations.