Sen. Tammy Baldwin, D-Wis., is one of four Democratic lawmakers calling for an investigation into VA's implementation of a law aimed at reforming the department.

Sen. Tammy Baldwin, D-Wis., is one of four Democratic lawmakers calling for an investigation into VA's implementation of a law aimed at reforming the department. Alex Brandon/AP

Lawmakers Call for an Investigation Into Discipline at VA

Senators say VA is out of compliance with a 2017 law and enforcing it unfairly.

A group of lawmakers is calling on the Veterans Affairs Department’s watchdog to investigate the implementation of a new law that makes it easier for the agency to discipline and fire its employees, saying it has been carried out “inappropriately and inconsistently.”

VA has not submitted information required by the law to Congress and employees have reported the department is unfairly interpreting its new authorities, according to the four Democratic members of the Senate Veterans Affairs Committee who sent the letter to the agency’s inspector general. When presented with those accusations, the lawmakers said, the department failed to provide any information to “alleviate our concerns or demonstrate in any way that application of these authorities has been consistent, fair or appropriate.” The Senators calling for the investigation are Jon Tester, D-Mont.; Richard Blumenthal, D-Conn.; Tammy Baldwin, D-Wis.; and Sherrod Brown, D-Ohio.

The 2017 VA Accountability and Whistleblower Protection Act made it easier to discipline employees by shortening the timeframe for due process protections and lessening the burden of proof required to prove a termination was warranted. VA’s implementation of the law has previously drawn the ire of Congress, when six Democratic senators complained the department was carrying it out in a manner “counter to congressional intent.”

Initial reports on the uses of the new authority showed VA has disproportionately focused on lower-level employees, which lawmakers have also criticized. VA 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 SES employee in fiscal 2016, compared to five (of the 138 it now employs) in fiscal 2017.

Curt Cashour, a VA spokesman, defended the law's implementation. 

"VA makes absolutely no apology for holding employees accountable when circumstances warrant," Cashour said. "If former employees feel their removal from federal employment is improper, they have a number of appeal options under federal law."

While no Republicans signed onto either of the letters, 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 earlier this year 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.

VA has provided some information to Congress, the senators said in their letter to the IG, but it fell short of what they requested. The department pointed to a lack of tracking software that would have made the information available, but the lawmakers said VA subsequently acquired and implemented such a program without giving the committee the data it was required to provide.

Peter O'Rourke, VA's acting secretary, sent a letter to senators on the committee earlier this month saying that meeting all the data reporting provisions would require 7,000 staff hours. He also said VA's guidance on the accountability law meets the language prescribed by the bill and defended a decision to no longer require the use of a table of penalties and progressive discipline. Cashour added that VA is still working to develop a mechanism for tracking all of its disciplinary actions.

A spokesman for the IG’s office declined to say whether it would take up the case, saying only it received the letter and would “respond accordingly.”

Last week, Rep. Brian Fitzpatrick, a Pennsylvania Republican who voted for the firing reform law last year, introduced a measure to repeal the accountability provisions.

Trump, meanwhile, has repeatedly praised the law, including earlier this month when signing a bill to overhaul VA health care.

“Last year, I signed the historic VA Accountability legislation, meaning you now can immediately get rid of people that don't treat our veterans right; that rob us, or cheat us, or aren't good to our great vets,” Trump said at the signing ceremony for the health care law. “You can get them out. You couldn't do it.”

He added that when malfeasance was uncovered at VA, “They couldn't do anything about it. Good people that worked there, they couldn't take care of the bad people. Meaning, you're fired; get the hell out of here.”