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Bill Making It Easier to Fire VA Employees Heads to Senate Floor

Senate panel approves accountability legislation and another measure that would rescind certain workers’ bonuses.

A Senate panel on Wednesday advanced legislation that would make it easier to fire employees at the Veterans Affairs Department.

During an afternoon markup, the chamber’s Veterans’ Affairs Committee approved S. 1082, which would give the VA secretary much more flexibility to fire corrupt or poor-performing employees, not just top officials. The bill essentially would expand to the entire workforce the authority of the 2014 Veterans Access, Choice and Accountability Act, which made it easier to get rid of senior executives engaged in wrongdoing at the department.

The latest development continues the legislation’s momentum on Capitol Hill. The House Veterans’ Affairs Committee approved a companion bill by a party line vote last Wednesday.

The full House could vote on the measure next week.

The legislation would allow the secretary to remove any VA employee based on performance or misconduct; the employee could file an appeal to the Merit Systems Protection Board 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.

S. 1082 also would extend the probationary period for new VA employees from one year to 18 months, and allow the secretary to extend that even further. Most VA medical professionals already have a two-year probationary period.

Senate Veterans’ Affairs Committee Ranking Member Richard Blumenthal, D-Conn., offered a substitute amendment to the bill that would, among other things, hold senior political appointees accountable in performance plans for recruiting, engaging and training employees. It also would hold managers accountable for dealing with poor performance, including demoting or firing workers. Another provision in Blumenthal’s amendment would create a separate promotion track for technical experts who want to advance but do not want to be managers.

The nonprofit Partnership for Public Service expressed support for Blumenthal’s alternative to S. 1082, which is sponsored by Sen. Marco Rubio, R-Fla. Partnership President and CEO Max Stier said Blumenthal’s version “would give the secretary an additional tool to remove individuals who are a threat to public health or safety, thereby addressing accountability, and would improve the management of the department in critical ways.” Stier said S. 1082 as drafted “falls short” of real reform at the VA.

“The bill eliminates due process protections for employees – which will silence the very whistleblowers we rely on to sound the alarm – and could lead to removals for partisan or discriminatory reasons,” he said. “It will also have an adverse impact on the ability of the VA to recruit and retain top talent by disincentivizing sorely needed reformers from accepting leadership positions.”

VA Committee Chairman Johnny Isakson, R-Ga., opposed the amendment, and Blumenthal agreed to withdraw it during the markup in favor of a future hearing to consider his ideas.

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 it. The American Federation of Government Employees, which represents more than 220,000 non-management VA employees, said in a June 23 letter to House VA subcommittee members it was “gravely concerned” about the legislation.

The accountability bill would “destroy civil service protections and the VA’s ability to recruit and retain a top notch workforce,” wrote Beth Moten, AFGE’s legislative and political director. Instead, Moten said, lawmakers should focus on tools to “reduce mismanagement” and avoid creating a “hostile workplace.”

House VA Committee Chairman Jeff Miller, R-Fla., who sponsored that chamber’s bill, has said that he believes “99 percent of the more than 300,000 VA employees are dedicated and hardworking, and are not part of the problems that exist at VA.” But the department’s “tradition” of transferring bad apples or putting them on paid administrative leave makes the legislation necessary, he said.

The Senate VA Committee on Wednesday also approved separate bipartisan legislation that would rescind bonuses paid in the last few years to any Veteran Affairs Department employees involved in manipulating data related to patient wait times.

The bill would authorize the VA secretary to require employees who received bonuses in fiscal years 2011 through 2014 to repay the awards if the employees “contributed to the purposeful omission of the name of one or more veterans waiting for health care from an electronic wait list for a medical facility.” Bonuses given to supervisors of those employees also would be rescinded if they “reasonably should have known” about the data manipulation. The legislation directs the VA inspector general to identify those employees.

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