Two department officials plead the Fifth during Monday night congressional hearing.
The fate of two senior executives at the Veterans Affairs Department who used their positions of authority for personal and financial gain soon will be known.
The VA has proposed punishment for Diana Rubens and Kimberly Graves, notifying them of its decision on Oct. 31, said Danny Pummill, principal deputy undersecretary for benefits at the department, during a Monday night congressional hearing before the House Veterans' Affairs Committee. But Pummill said the VA’s legal adviser told him the department wouldn’t notify the committee of the proposed adverse action until Rubens and Graves had a chance to appeal the decision.
Under the 2014 Veterans Access, Choice and Accountability Act, disciplined senior executives have seven days to appeal the adverse action to the Merit Systems Protection Board, which in turn would have 21 days for an expedited adjudication. MSPB’s ruling would be final. Separately, however, VA gives employees five business days to respond to a proposed disciplinary action; under that policy, the department will notify the committee on Nov. 6 whether Rubens and Graves have been fired.
“I absolutely have confidence that the secretary [Bob McDonald] and the dep sec [Sloan Gibson] have proposed a punishment -- whatever that punishment is -- [that] is appropriate because they have all the evidence,” Pummill said, adding that he had only seen the public IG report, not the evidence gathered during the watchdog’s investigation. The VA IG made a criminal referral on the matter to the Justice Department, which has not yet decided whether to pursue the case.
Even if the VA has fired the two senior executives, it’s unclear whether Rubens and Graves ultimately will remain fired. There’s still the MSPB appeals process to go through, if Rubens and Graves avail themselves of the option. In addition, there are legal questions about the constitutionality of the Choice Act, and the provisions related to the expedited firing of senior executives. Critics say the law violates career employees’ due process rights. Many lawmakers and other observers have said the department so far hasn’t been aggressive enough in using the 2014 law to sack poor-performing or malfeasant senior executives.
"It is important to allow the process to be completed as the law prescribes," department officials said in a statement. "VA will not have an additional comment as to outcomes or specific timelines until the process is complete."
Rubens is the director of the Philadelphia and Wilmington, Del., regional office, and Graves is the director of the St. Paul, Minn., regional office. The VA inspector general found that Rubens and Graves improperly helped create vacancies at their respective offices and volunteered to fill them. The two employees occupying those jobs at the time -- Antione Waller and Robert McKenrick – were relocated to jobs (in Baltimore and Los Angeles, respectively) they did not volunteer for to make room for Rubens and Graves, according to the watchdog. Additionally, VA paid nearly $300,000 in relocation expenses, including costs related to a governmentwide housing relocation program for Rubens, and about $129,000 for Graves. Both Rubens and Graves took on fewer job responsibilities in their new positions but kept their previous annual salaries of $181,497 for Rubens and $173,949 for Graves. Agencies cannot cut senior executives’ pay unless they’ve engaged in misconduct, or received a less than fully successful performance review.
Overall, the IG concluded that managers at the Veterans Benefits Administration reassigned senior executives to circumvent a pay freeze, and also paid many of those executives unjustified relocation incentives. VBA spent a total of about $1.8 million on 23 reassignments from fiscal 2013 to fiscal 2015, the IG found. All but two of the reassignments came with pay raises, despite an Office of Personnel Management freeze on Senior Executive Service pay from 2010 through 2013, and a separate VBA ban on bonuses in 2012 due to lack of progress addressing the backlog of outstanding disability benefits claims.
Rubens and Graves appeared under subpoena at Monday’s hearing but did not answer the committee’s questions, invoking their Fifth Amendment right against self-incrimination. The committee also subpoenaed Pummill, McKenrick and Waller, who answered questions. VA Committee Chairman Jeff Miller, R-Fla., invited Allison Hickey, former VA undersecretary for benefits, to testify on Monday, along with the subpoenaed witnesses, but she did not show up. Hickey, who recommended Rubens for the reassignment to Philadelphia and a relocation incentive, resigned from the department on Oct. 16.
Miller issued the subpoenas out of frustration when the witnesses did not show up for an Oct. 21 hearing on the matter. “I am sick and tired of asking for information from the department, and being given a run-around,” Miller said on Monday.
Lawmakers from both parties complained during the two-and-a half-hour hearing about how difficult it is to get rid of problem employees at the VA, particularly non-senior executives. Pummill said he agreed with the Choice Act provisions making it easier to fire VA senior executives who are poor performers or engaged in misconduct, and said department leadership is committed to using that new authority to hold people accountable. He said he thought that expedited firing authority should apply governmentwide and not just to VA. “I don’t think that’s quite fair,” said the retired Army colonel and long-time former Defense Department official. “It puts a lot of pressure on us, but I understand that this is the Veterans’ Committee and not [responsible for] the whole federal government, but I have a concern with that.”
Pummill, who has worked at the VA for five years, also expressed his views on the current federal firing process in government, saying he found it “very, very hard” and “impossible” to navigate. “The civil servants, and I believe this is federal governmentwide, have incredible protections and safeguards, and so the process of taking care of a problem employee takes an incredible amount of documentation, oversight, time and energy, and taxpayer dollars,” he said. “And normally [it] ends when somebody outside of our organization comes back and says ‘You missed a step, reinstate the person with back pay.’ ”
The House in late July passed a bill that would make it easier to fire all poor-performing or corrupt employees at VA, not just top officials. It would essentially expand to the entire workforce the authority under the Choice Act. Last month, Senate Democrats blocked a floor vote on its version of the legislation.