This story has been updated with comments from the Senior Executives Association and from VA Deputy Secretary Sloan Gibson.
The Veterans Affairs Department will no longer use the authority Congress granted it in 2014 to quickly fire poorly performing senior executives or those involved in wrongdoing, VA told lawmakers Friday, citing constitutionality concerns raised by the Justice Department.
The decision outraged lawmakers, who have tried to hold senior executives more accountable for the department’s failures. The 2014 Veterans Access, Choice, and Accountability Act specifically sought to limit the appeals process for fired senior executives, but critics have warned the law violates employees’ due process rights. The Justice Department’s decision last month to decline to defend the provisions in a lawsuit against VA put VA Secretary Robert McDonald in an impossible position—continue to use the authority knowing Justice would not defend his decisions if challenged, or invoke Congressional wrath by rejecting the authority. He chose the latter.
“It is outrageous and unconscionable that the VA is choosing to blatantly ignore all of the accountability reforms set in place by the Veterans Choice Act,” said Sen. Johnny Isakson, R-Ga., chairman of the Senate Veterans’ Affairs Committee.
“I am not going to stand by and watch the VA continue to look the other way while another one of its own gets away with egregious misconduct at the expense of veterans’ access to quality care and services,” said Isakson, a veteran himself.
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Rep. Jeff Miller, R-Fla., chairman of the House Veterans' Affairs Committee, said, “Everyone knows VA isn’t very good at disciplining employees, but this decision calls into question whether department leaders are even interested in doing so."
"This decision underscores the urgent need for civil-service reform across the federal government that enables leaders to swiftly and efficiently discipline those who can’t or won’t do their jobs—an ability that is presently almost nonexistent,” Miller said.
Isakson said he intends to counter what he terms “blatant executive overreach” with the Veterans First Act, legislation that would remove the Merit Systems Protection Board from the appeals process for senior executives altogether, thus avoiding a constitutionality challenge. The Senate Veterans' Affairs committee passed the bill (S.2921) in May unanimously and it awaits action by the full Senate.
The lawsuit sparking the clash was brought by Sharon Helman, the former director of the Phoenix VA Health Care System, who was fired in 2014 in the wake of the VA wait-time scandal. Helman sued for her job back, saying the Veterans Choice Act is unconstitutional, partly because it does not allow executives to appeal to the full Merit Systems Protection Board, only to an administrative judge at the board.
Helman’s attorneys maintain the Choice Act violates the Appointments Clause of the Constitution because administrative judges are not presidentially appointed whereas members of the merit board are. The Justice Department agreed.
That left the Veterans Affairs Department in an untenable position, apparently. VA officials told Isakson that as a result of Justice’s decision, the department would not use any of the accountability reforms established in the Veterans Choice Act to remove executives, he said.
VA Deputy Secretary Sloan Gibson said that, given the Justice Department's position, “It would be irresponsible to continue using that authority [under the Choice Act] when other methods for disciplining senior executives exist. In fact, doing so would only hinder VA’s ability to hold senior officials accountable who have engaged in wrongdoing and make those actions stick.”
“Let me be clear that this in no way diminishes our commitment to accountability,” Gibson said. “In fact, it reaffirms our commitment to get it right for Veterans, for taxpayers and for our 350,000 employees, the vast majority of whom do the right thing for Veterans every day.”
Miller, one of the main architects of the 2014 Choice Act, was “outraged” by the Justice Department’s decision “given the fact that President Obama enthusiastically supported this law,” he said last month when Justice announced its decision in the Helman case. Many Democrats in both the House and Senate supported the Choice Act as well, and at the time, praised the senior executive accountability provisions.
But Senior Executives Association Interim President Jason Briefel said the law’s problems were apparent early on. “Before its passage, SEA and countless other organizations repeatedly voiced concerns with regards to the constitutionality of the Choice Act, and in a final effort before it was signed into law, the Senate-confirmed Board members of the MSPB even wrote a letter to the President, detailing its constitutional conflicts,” Briefel said.
“Yet, instead of further investigating these egregious concerns and attempting to remedy them, an unconstitutional law was passed and two years of taxpayer resources and money have been wasted only to reach an outcome that was previously predicted,” he said.
Kellie Lunney and Eric Katz contributed to this story.