Sait Serkan Gurbuz/Associated Press

VA Backpedals on Changing Status of All Senior Executives

Non-medical senior executives would remain in Title 5, but department is still seeking greater control over firing them.

The Veterans Affairs Department on Tuesday publicly backed away from pursuing legislation that would move all VA senior executives into a different personnel system, making it easier to hire and fire them.

VA Secretary Bob McDonald told a Senate panel that the department wants to “expand the Title 38 hiring authority to VHA [Veterans Health Administration] senior-level medical center directors, VISN [Veterans Integrated Service Network] directors, and other health care executive leadership positions.”

That would not include all department senior executives, as previously suggested in a draft proposal circulated last month among VA leadership, lawmakers, and other stakeholders.

VA spokesman Henry Huntley also on Tuesday said that the VA doesn’t intend to take all the department’s senior executives out of Title 5, and that the draft proposal was “an idea that result[ed] from internal collaborative discussions,” and was not a department or Obama administration proposal. He added that “mobility of executives into and out of VA was one of the factors considered following some of the initial idea discussions.”

The "majority" of the VA's senior executives would remain in Title 5, Huntley said.

As for “non-medical” Title 5 senior executives, the VA wants to amend the 2014 Veterans Access, Choice and Accountability Act basically to ensure that its recommendations to demote or remove those accused of wrongdoing stick on appeal to the Merit Systems Protection Board.

“What we are contemplating is amending the Choice Act's expedited SES appeal process to give the MSPB the clarity in terms of what its obligations are to carry out the secretary’s accountability actions under that act,” said Meghan Flanz, deputy general counsel of legal operations and accountability in VA’s general counsel office, during Tuesday’s hearing before the Senate Veterans’ Affairs Committee. “We believe that there was perhaps greater adherence to MSPB precedent [and] less appropriate deference to the secretary’s actions in the cases that we’ve had so far. So what we’re contemplating is greater clarity around the rules that apply to the non-health care executives at the department.”

Flanz was referring to three separate administrative judges’ decisions in January and February to reverse VA officials' decisions to demote or fire senior executives accused of wrongdoing. (The department used its authority under the 2014 Choice Act to demote and fire those senior executives.) The judges said they reversed the decisions because they were unable to offer a lesser penalty under the 2014 Choice Act. Those decisions sparked a public debate over moving VA senior executives out of Title 5 and into Title 38.

In a Feb. 18 email to VA senior executives, McDonald said that “running VA like a business requires more flexibility than we currently have in the way we appoint, onboard, assign, develop, appraise, pay, and—if necessary—discipline executives.” He added that one way to do that could include shifting those employees from Title 5 to Title 38.

“At the Feb. 10, 2016, House Committee on Veterans' Affairs hearing on the President's fiscal year 2017 budget request, I addressed the idea of a legislative change to make all VA career senior executives Title 38 employees,” McDonald wrote in the email. He added that while he and Deputy Secretary Sloan Gibson were “disappointed” in the MSPB decisions, “our interest in converting VA executives to a Title 38 employment system pre-dates those decisions and addresses a much broader range of concerns.”

The draft proposal, from which the VA has distanced itself, discussed moving the department's roughly 350 career senior executives from Title 5 to Title 38 to give the department more authority to expedite hiring and offer higher pay to better compete with the private sector for top talent. But that move would also give the VA leadership more leeway to fire top career officials accused of wrongdoing. Senior executives taken out of Title 5 and moved into Title 38 under the draft proposal would lose their rights to appeal disciplinary actions against them, such as removal, to the independent Merit Systems Protection Board. Instead, their appeals would be handled internally at the VA.

Sixty-four percent of respondents in a survey of 236 VA senior executives conducted by the Senior Executives Association, and released in part before Tuesday’s hearing, said they didn’t agree with a proposal to move the department's roughly 350 career senior executives from Title 5 to Title 38 as a way to ease SES hiring and firing. Among the survey’s other findings, 69 percent of the respondents don’t believe the proposal would improve services and care for veterans, while 59 percent don’t think it will help with retaining talented senior executives. Respondents cited frustration with Congress and VA leadership, as well as a fear of unfair media and congressional scrutiny as the top reasons they’d consider leaving the federal government. About a one-third said the attraction of the private sector wouldn’t sway them from leaving federal service. 

Right now, roughly 190,000 of the department’s 300,000-plus workforce falls under Title 38, including doctors, nurses and other categories of health care workers. Between 60,000 and 70,000 of those employees are considered “pure” Title 38, meaning they do not have the same standard MSPB appeal rights that Title 5 employees have. Hybrid Title 38 employees, including social workers, pharmacists and psychologists at the Veterans Health Administration, have the same rights to appeal adverse actions to MSPB as Title 5 employees have. The separate title and the two tracks within it emerged as a way to help the VA secretary fill certain jobs faster through the federal hiring process. 

The expanded Title 38 authority for more medical professionals, as well as an amendment to the Choice Act’s expedited disciplinary authority, could be included in an upcoming omnibus legislative package on veterans’ issues. Senate Veterans’ Affairs Committee Chairman Johnny Isakson, R-Ga., said he wants the panel to move on that in April provided “the good Lord willing, and the creek don’t rise,” with the hopes it will pass the Senate before Memorial Day.