Sen. Jon Tester, D-Mont., was one of the senators who sent the letter.

Sen. Jon Tester, D-Mont., was one of the senators who sent the letter. Carolyn Kaster/AP

VA Is Overstepping Congressional Intent With 'Unacceptable' Firings, Senators Say

Democratic lawmakers say the department has abandoned traditional efforts to improve employee performance.

A group of Democratic senators has sounded the alarm over the Trump administration’s enforcement of a key civil service reform President Trump signed into law last year, accusing the Veterans Affairs Department of abusing and misusing authority Congress provided to expedite the firing of poorly performing or misbehaving employees.

VA Secretary David Shulkin is overstepping congressional intent in implementing the law, six Democratic senators, led by Senate Veterans' Affairs Committee Ranking Member Sen. Jon Tester, D-Mont., said in a letter. The lawmakers said they are “hearing reports” that VA has eliminated the use of performance improvement plans, is no longer using the table of penalties and is ending the practice of progressive discipline. Curt Cashour, a VA spokesman, called those reports inaccurate.

Still, the senators said new policies have led to employees being fired for “missing deadlines or moving slowly after an injury,” even on first offenses. Such actions “are not the types of offenses that rise to the level of immediate termination,” an authority provided in the 2017 VA Accountability and Whistleblower Protection Act.

“This is unacceptable and runs counter to congressional intent and your previous comments,” the lawmakers said. They noted Shulkin had previously testified, “Every good manager works with their employees to make them better, to give them feedback,” a practice for which his new policies do not allow.

Amanda Maddox, a spokeswoman for Sen. Johnny Isakson, R-Ga., the Republican VA Committee chairman who helped shepherd the compromise legislation through the Senate, said the majority party also has concerns with how VA is carrying out the law.

“We have heard some concerns about the accountability law’s implementation, and we are actively working with the VA to monitor implementation to ensure the department has the best workforce possible,” Maddox said.

The Democratic senators said in private discussions leading up to the Senate’s unanimous approval of the firing bill and Trump’s ultimate signing of it, Shulkin agreed the authorities would only be used “in cases of egregious conduct.”

“That is not how it currently appears to be executed by your agency,” they told the secretary. The senators criticized VA for its failure to report to Congress on use of its new authorities, opening the department to questions of whether it has implemented the law consistently or focused “disproportionately on lower-level employees” (as Government Executive has previously reported).

“This law was passed by Congress, with the support of the department, in order to ensure that the department was able to more quickly remove employees who had behaved in an abhorrent manner and veterans were suffering,” the senators wrote. “We urge you to ensure that these new authorities are not being abused by managers without additional review, or targeted at low level employees rather than those interacting directly with veteran patients.”

Cashour said that the department is looking to improve accountability regardless of an employee's position. 

"Culture spans the entire organization," he said. "As with any government agency or business, VA has more rank-and-file workers than senior leaders, and we hold them accountable when warranted, regardless of rank or position."

VA fired 2,537 employees in Trump’s first year in office, according to VA data. Public data on the department’s new accountability website show 1,455 removals, but VA said the figure reaches the higher total when coupled with probationary terminations. According to data maintained by the Office of Personnel Management, VA fired 2,662 employees for discipline or performance in fiscal 2016, the last fiscal year entirely under President Obama. A VA spokesman said the firings actually increased when comparing calendar years, citing internal figures.

Supporters of the law have said the measure would enable VA to quickly get rid of employees threatening veterans health or safety, but the department fired just 10 employees in medical records positions in 2017, 48 physicians or physician assistants, and 308 nurses or nursing assistants. By comparison, it fired 177 employees in housekeeping and 82 in food services. To put that in perspective, VA fired one doctor for every 1,000 it employs, while it removed three nurses for every 1,000; four medical record technicians for every 1,000; and 10 food service workers for every 1,000. VA employed just 227 employees in housekeeping management as of September. The department fired one Senior Executive Service employee in fiscal 2016, compared to five (of the 138 it now employs) in fiscal 2017.

The law allows the department’s secretary to fire, suspend or demote an employee with only 15 days' notice. Employees can appeal to the Merit Systems Protection Board in an expedited timeframe. MSPB then has 180 days to issue a decision, with the law designed to make it easier for VA to prove a negative personnel action was warranted. Employees maintain the right to appeal an MSPB decision to federal court. Unionized and SES employees have distinct, internal grievance processes that have to be completed within 21 days.

Without utilization data, Democratic senators complained they do not know how often fired employees are pursuing the appeals process. They called on Shulkin to ensure regional offices are more consistently reporting data, which it can then pass on to Congress as the law required. They asked Shulkin to ensure progressive discipline is still being used across the department, noting facilities should still be using “long-existing authorities to correct minor behaviors with reprimands, admonishments, or suspensions under 14 days.” The lawmakers also said they “anxiously await” as Trump chooses a nominee for the newly created assistant secretary of accountability and whistleblower protection position. Peter O’Rourke, who served as executive director of that office before it was codified to require a Senate-confirmed appointee, is now Shulkin’s chief of staff.

Cashour said VA "appreciates the senators’ concerns and will respond to them directly."