The latest decision is the third such rejection of the department’s effort to discipline top officials – and the VA is not happy about it.
This story has been updated.
For the third time in less than a month, an administrative judge has reversed the Veterans Affairs Department’s decision to discipline a senior executive accused of wrongdoing -- and the VA is not happy about it.
The Merit Systems Protection Board on Friday overturned the department’s decision in January to fire Linda Weiss, former director of the Albany Stratton VA Medical Center in upstate New York. VA Deputy Secretary Sloan Gibson, who has defended his recent personnel decisions related to senior executives, said Friday that he would not return Weiss to her job in Albany, or any other position where she would be responsible for patient safety. Weiss was put on administrative leave in November before being fired last month. She appealed her removal to MSPB in January.
Gibson said he removed Weiss from her job because she did not do enough to ensure the safety of vets seeking care at the Albany medical center, despite complaints from patients. “In my judgment, a medical center director who fails to proactively address patient safety concerns or fails to be an advocate for vulnerable veteran patients has no place in the VA,” Gibson said in a statement, criticizing the MSPB decision.
Some of the incidents occurring under Weiss’ watch involved two male nurses who stole and used drugs from the medical center, a patient suffering from sexual trauma who was improperly restrained for several hours, and a nurse found sleeping on the job – in the bed of a recently deceased vet. Weiss took over as director of the Albany medical center in 2010, after a high-profile scandal involving top center leaders later convicted of federal crimes, according to reporting by The Times-Union. The newspaper said hospital officials had praised Weiss for making the medical center more efficient during her tenure, but also reported that some employees bristled at her management style.
The two-page MSPB decision, which did not discuss its legal rationale for reversing the VA’s decision to fire Weiss, was issued on Feb. 5 in order to comply with the expedited legal proceedings for such cases required by the 2014 Veterans Access, Choice and Accountability Act. Chief Administrative Judge Arthur Joseph said he would issue a separate, formal decision by Feb. 16 detailing the findings and reasons for the ruling.
Gibson, who held a conference call last week to discuss MSBP’s separate decisions in January and February to reverse the demotions of Kimberly Graves and Diana Rubens, clearly was frustrated by the latest ruling. “Under the Choice Act, my judgment is owed considerable deference by the MSPB,” the deputy secretary said. “Yet based on this and other recent decisions, it appears the MSPB does not agree with Congress’ or the VA’s interpretation of the extent of my authority and has, once again, substituted its judgment for mine and demonstrated a willingness to second guess the VA’s application of legitimate high standards of accountability.” Three separate judges made the decisions in the separate cases involving Graves, Rubens and Weiss.
It’s unclear whether Gibson’s intention not to return Weiss to her Albany post will stick. That will depend on whether the judge says explicitly that Weiss be reinstated to her job as director of the Albany medical center, or whether he rules that she simply be reinstated as a VA senior executive someplace. "We have nothing beyond the statement at this time," said James Hutton, VA's media relations director, in response to questions over where Gibson would place Weiss if the decision ultimately provides that flexibility, or how it is possible for Weiss to effectively perform any job at the department now, given the department’s response to the MSPB decision.
Gibson and his boss, Secretary Bob McDonald, have said repeatedly that the VA has sufficient authority to fire and discipline employees. Gibson, during a Dec. 9 congressional hearing, emphasized that organizations cannot “fire their way to excellence,” and said he would make personnel decisions based on facts and evidence, not because of congressional or media pressure.
The 2014 Veterans Access, Choice and Accountability Act ostensibly makes it easier to demote and fire VA senior executives, but some believe the law has simply only expedited the legal process, leaving VA even less time to properly present its case. Critics of the expedited firing authority—and attempts to extend it beyond VA’s senior executives—have said it violates career employees’ due process rights.
House Veterans' Affairs Committee Chairman Jeff Miller, R-Fla., said the Weiss decision was "yet another MSPB ruling that defies common sense." Miller was one of the chief architects of the 2014 Choice Act. "It is encouraging that VA Deputy Secretary Sloan Gibson is finally starting to realize what nearly every objective observer concluded long ago: the MSPB coddles and protects misbehaving employees rather than facilitating fair and efficient discipline," Miller said.
Miller added that he hoped Gibson would work with lawmakers to "to reform the federal government's dysfunctional civil service system -- something he was refusing to do as recently as last week."