VA Deputy Secretary Sloan Gibson

VA Deputy Secretary Sloan Gibson Jacquelyn Martin/AP file photo

VA Deputy Says He Has Confidence in Senior Executives He Demoted

Judges' decisions to reinstate Diana Rubens and Kim Graves demonstrate the thorny personnel issues a 2014 law is creating.

Just a few months after demoting them, Veterans Affairs Deputy Secretary Sloan Gibson on Monday said he was confident in the leadership abilities of two senior executives that he was forced to reinstate to their previous jobs.

“The overarching theme today is for all of us to get back to the veterans’ business,” Gibson said in a conference call to discuss the reinstatement of Diana Rubens and Kimberly Graves to their senior executive posts as director of the Veterans Benefits Administration’s Philadelphia office, and director of VBA’s St. Paul, Minn., regional office, respectively. “This has been a considerable distraction for a long period of time.”

Nearly a year after the first congressional hearing looking into a VBA employee relocation controversy involving Rubens and Graves, the saga is still not quite over. While the two have returned to their jobs – Gibson on Monday was in Philadelphia to talk to employees and other VA stakeholders about Rubens’ reinstatement – they could still face some lesser disciplinary action, likely a reprimand. Gibson is expecting an investigator’s report this week that will help him determine whether to take any action against Rubens, Graves, or two other high-ranking department officials who were not punished for their roles in the department’s use of relocation incentives and reassignments of career senior executives.

The Merit Systems Protection Board, in separate cases, agreed that Rubens and Graves showed poor judgment and created an appearance of impropriety by not recusing themselves from discussions over job reassignments that they both personally gained from. But they reversed Gibson’s decision to remove them from the Senior Executive Service at a significant pay cut, ruling that it was unfair because others involved in the job reassignments, including Danny Pummill, acting undersecretary for benefits, and Beth McCoy, deputy undersecretary for field operations, were not disciplined.  

“The judge ruled that that was unreasonable,” Gibson said of his decision to remove Rubens and Graves from the Senior Executive Service, in light of the evidence. “So that is the situation we are in. And we can call it every other thing you’d like to call it, but that’s what it is.” Gibson said, in that context, the right thing to do “is to get Diana back here in Philadelphia, get Kim back in St. Paul, and let’s get back to work doing the veterans’ business.”

He noted that “moving them off into some kind of make-work role is not right for veterans, and it’s not right for taxpayers. Alternatively, the prospect of relocating them someplace else and incurring the cost of that relocation, it’s pretty hard to argue that that is the right thing for taxpayers.” He added that he believed the decision to return them to their positions was also “the morally right thing to do.”

The Rubens and Graves cases are tricky for Gibson, and reflect the unintended consequences of a 2014 law that expedited disciplinary actions against VA senior executives for poor performance or misconduct. Gibson did not support the inspector general’s conclusions that Rubens and Graves had broken any laws, or committed any ethics violations. Still, he believed they failed to exercise sound judgment by creating an appearance of impropriety, so he decided demoting them was appropriate. But MSPB disagreed in both cases, and the 2014 law as interpreted does not allow judges to impose a lesser punishment than that handed down by the department. Even though the MSPB disagreed with him, Gibson has repeatedly said he believes that Rubens and Graves were mistreated in the media and during the personnel process, and that they are good people whose “reputations have been trashed.”

The deputy secretary on several occasions has defended Rubens, in particular. “I pointed out to employees here in Philadelphia today, in Diana’s case, she has been at VA for 28 years doing great work for veterans and the organization,” Gibson said during the call on Monday. “I’m confident that if I look back on the last 28 years of my professional life, I’ve made mistakes that are a lot more serious than what we are talking about here. But I didn’t get fired.”

In a third separate case, MSPB also recently overturned Gibson’s decision to fire Linda Weiss as director of the Albany Stratton VA Medical Center in upstate New York. Gibson on Monday reiterated that he would not reinstate Weiss in spite of the ruling. “The fundamental issue here is that I believe the judge’s full order around the Weiss case was not timely rendered, and therefore based on the advice of counsel, I don’t consider it to be enforceable.”

Gibson used the 2014 law to expedite the punishment of all three senior executives. But the three resulting MSPB appeal decisions illustrate “the challenges associated with being able to enforce accountability under certain circumstances,” Gibson said. “It is an extraordinarily high bar.” Gibson and VA Secretary Bob McDonald are working with lawmakers to draft legislation that would make all VA senior executives Title 38 employees, meaning that they would not have the same standard MSPB appeal rights as Title 5 employees when it comes to disciplinary actions.