The Senate on Tuesday approved by voice vote a bipartisan bill to expedite the firing of Veterans Affairs Department employees despite outcry from employee groups that the new system is unfair and would upend the civil service.
The Department of Veterans Affairs Accountability and Whistleblower Protection Act won overwhelming support and faces a high likelihood of reaching President Trump’s desk. The measure is friendlier to employees than previous efforts to reform the disciplinary process at VA, and proponents say it eliminates any concerns of constitutionality that arose in predecessor bills. It was introduced by the chairman and ranking member of the Senate Veterans' Affairs Committee -- Sens. Johnny Isakson, R-Ga., and Jon Tester, D-Mont. -- as well as Sen. Marco Rubio, R-Fla.
Tiffany Haverly, a spokesman for Rep. Phil Roe, R-Tenn., who chairs the House Veterans' Affairs Committee, said the panel is expecting the lower chamber to take up the Senate bill rather than move to conference with the measure it passed in March. The Senate legislation, Haverly said, “includes much of” Roe’s bill the House has approved. Both Roe and his committee’s ranking member, Rep. Tim Walz, D-Minn., had previously endorsed the Senate measure.
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. MSPB would have 180 days to issue a decision, a much longer period than the 45-day timeline set up in the House bill. Employees would maintain the right to appeal an MSPB decision to federal court.
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.
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. The American Federation of Government Employees, which represents 230,000 VA employees, has condemned the bill, decrying in particular a change in the process for proving guilt. A provision of the measure would 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.
“I understand that bashing employees and taking away their rights is good politics, but it is bad government,” AFGE President J. David Cox said at a hearing last month. “I promise you that under this bill more employees will be fired for bad reasons than good reasons.”
Bill Valdez, president of the Senior Executives Association, was similarly opposed, saying in a letter to senators Tuesday the bill would “only serve to exacerbate VA’s workforce management challenges.” Another provision of the bill would provide VA direct hire authority for medical center directors, which Valdez said -- coupled with the firing provisions -- could “trigger a return to the spoils system of patronage that was a hallmark of the federal civilian workforce” in the 19th century. Valdez said Congress should instead pursue a new personnel system that better rewards top performers while also holding bad apples accountable.
The Senate passage follows several attempts in the last Congress to streamline discipline at VA. A 2014 law reformed the process just for senior executives, but a federal court has ruled the provision unconstitutional and the department is no longer using the new authority it provided. The White House, as well as VA Secretary David Shulkin, has indicated its support for changing current firing laws.