This story has been updated.
An administrative error has forced the Veterans Affairs Department to rescind the punishment for two senior executives who were demoted after the department's watchdog found they used their positions of authority for personal gain, the VA said on Thursday.
VA still plans to demote and reassign Diana Rubens and Kimberly Graves, but the department has to restart the disciplinary process because it failed to provide the two employees with all the information regarding their punishment during the notice period. “During a review of the appeals, agency counsel discovered that, due to an administrative error, one of the five binders of evidence supporting each action had inadvertently been omitted from the materials provided to the employees with their proposed demotion paperwork,” the VA statement said.
Rubens and Graves appealed their demotions to the Merit Systems Protection Board earlier this week. MSPB dismissed those appeals as “moot,” presumably because of the administrative error the department discovered.
Once VA “re-issues” its proposed discipline, Rubens and Graves will have five business days to respond to the additional evidence before the department issues final decisions on the demotions and reassignments.
“Both employees will continue to report virtually to VBA’s Central Office during this process,” which is currently under way, the statement said.
The snafu essentially restarts the whole disciplinary process, including any subsequent appeals to the MSPB.
House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., called the mistake “absolutely egregious” and questioned the VA’s commitment to accountability. “It seems VA’s incompetence knows no bounds,” Miller said in a statement. “After VA Deputy Secretary Sloan Gibson repeatedly expressed concerns that our committee’s legitimate oversight efforts could jeopardize these disciplinary proceedings, VA seems to have sabotaged this case all on its own.”
The VA on Nov. 20 announced the demotion of Rubens and Graves to General Schedule 15 assistant director positions within the Veterans Benefits Administration, at the Houston and Phoenix regional offices, respectively. Under the 2014 Veterans Access, Choice and Accountability Act, the VA can fire or demote Senior Executive Service employees 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.
The department’s watchdog in September concluded that Rubens, who was director of VBA’s Philadelphia regional office, and Graves, who led VBA’s St. Paul regional office, 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, who were working elsewhere at the time, according to the watchdog. VA paid roughly $274,000 in relocation expenses for Rubens, and about $129,000 for Graves, for a total of more than $400,000.
The VA’s decision to demote and not fire Rubens and Graves has added more tension to an already hot debate over firing in the federal government. Many lawmakers and other observers are frustrated with the VA’s inability to quickly get rid of poor performers or those engaged in misconduct. The 2014 Choice Act makes it easier for the department to fire and demote senior executives, but some believe the VA isn’t using the new authority adequately. (The VA used that authority to demote Rubens and Graves.) Critics of the expedited firing authority say it violates career employees’ due process rights.
Still, Republicans and Democrats have both expressed disbelief and frustration that the VA did not sack Rubens and Graves. “Rubens and Graves clearly should have been fired,” House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., has said. Senate Veterans’ Affairs Ranking Member Richard Blumenthal, D-Conn., called the department’s demotion of the two “an appallingly insufficient punishment.” Veterans’ groups including the American Legion and Concerned Veterans for America also criticized the VA for not firing the two VBA officials.