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Will Making It Easier to Fire Feds Go Viral?

“Today, it’s the VA. Tomorrow, it could be your agency,” says MSPB chief.

The head of the Merit Systems Protection Board on Thursday warned federal employees that legislative efforts making it easier to fire workers at the Veterans Affairs Department soon could expand to include other agencies.

“Today, it’s the VA. Tomorrow, it could be your agency,” said MSPB Chairman Susan Tsui Grundmann in a speech at the Equal Employment Opportunity Commission’s EXCEL conference in Washington. Grundmann was referring to a 2014 law that allows the VA secretary to fire any Senior Executive Service employee immediately, and a bill passed by the House in July that would make it easier to fire all VA employees -- not just top career officials.

The intent of the 2014 Veterans Access, Choice and Accountability Act – which includes the provisions affecting senior executives – and the 2015 VA Accountability Act is to help the department more quickly get rid of poor performers or those engaged in wrongdoing. The congressional efforts to expedite firing were launched after reports erupted last year about employees engaged in data manipulation and the excessive wait times for vets seeking appointments in Phoenix and elsewhere.

But many, including Grundmann, question the constitutionality of the legislative measures because of the effect on due process. The White House has threatened a veto of the 2015 bill, although President Obama signed the 2014 one affecting senior executives into law.

“While I do not pass judgment or condone the behavior of the executives removed under this [2014] law, I can say and you should as well, that the civil rights that we have all fought so hard for these last 50 years have expired for the VA SESers, and face extinction for hundreds of thousands of other employees at that same agency,” Grundmann said in her remarks. “And it really wasn’t until a few weeks ago that our lawmakers saw the light to recognize the constitutional flaws in this pending legislation, citing our report, citing our public comments, and saying that agencies cannot take federal employment away without at least the first the opportunity to respond.”

Other lawmakers have indicated an interest in expanding the firing provisions targeting the VA workforce to the rest of the federal government. House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., said this week during a speech at the Disabled American Veterans convention in Denver that if it “works at the VA, let's spread it throughout the entire federal government so people are not ensconced.” Miller, who sponsored both bills, also said during those remarks that he was open to changing his proposal under the 2015 VA Accountability Act, according to an Aug. 10 Associated Press report.

Under the 2014 law, the VA secretary can fire any SES employee immediately, with paychecks getting cut off the day of the termination. The affected executive would then have seven days to issue an appeal to the Merit Systems Protection Board, which in turn would have 21 days for an expedited adjudication. MSPB’s ruling would then be final.

Under the 2015 VA Employee Accountability Act, now pending in the Senate, the affected employee could file an appeal to MSBP within seven days of his or her removal. MSPB would have to rule within 45 days of the appeal filing. The legislation also would limit the amount of time an employee can be on paid administrative leave to 14 days in a one-year period.  

In both the 2014 law and the 2015 bill, if MSPB does not make a ruling within the set time frames, then the VA personnel decision would stand.

Currently, due process for most of the federal workforce 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 as well as a venue for appeal.

Among its other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended, furloughed, demoted or had their pay cut. The agency has been stepping up its efforts recently to educate other agencies and lawmakers about current laws governing the suspension and firing of employees.

MSPB, which has 226 employees, adjudicated more than 17,000 cases last year alone, Grundmann said. The bulk of those cases were furlough appeals from employees furloughed during the 2013 government shutdown.

“So today, yes, we do celebrate everything we’ve done, everything you’ve done, our collective achievement toward a more fair and impartial workplace,” said Grundmann in her speech Thursday. “But I also ask you, and I call on you, to join me in recognizing that the battle does not end today. That the erosion, any erosion of our achievements, will not be tolerated.”

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