Reforms come just after court deemed previous reform effort unconstitutional.
A bipartisan group of senators introduced legislation on Thursday to ease the firing of employees of the Veterans Affairs Department, taking a more worker-friendly approach to win backing from lawmakers across the political spectrum.
The 2017 VA Accountability and Whistleblower Accountability Act follows a similar bill the House approved by mostly partisan lines in March. Unlike the Senate bill, the House measure did not have any Democratic cosponsors and just 10 Democrats voted for it.
Sen. Marco Rubio, R-Fla., who previously put forward companion legislation to the House bill, introduced the updated Senate measure, with Sens. Johnny Isakson, R-Ga., and Jon Tester, D-Mont., the respective chairman and ranking member of the Senate Veterans' Affairs Committee. Also singed on as original cosponsors were Sens. John McCain, R-Ariz.; Jerry Moran, R-Kan.; Bill Nelson, D-Fla.; Jeanne Shaheen, D-N.H.; and Tammy Baldwin, D-Wis. Aside from Shaheen, all of the Democrats lending their names to the bill are up for re-election in 2018.
The new bill comes just days after a federal appeals court ruled Congress’ previous attempt at hastening VA’s disciplinary process -- through the 2014 Veterans Access, Choice and Accountability Act -- was unconstitutional. The measure stripped Senior Executive Service employees of their right to a second-level appeal before the Merit Systems Protection Board’s presidentially-appointed, Senate-confirmed panel. VA had already stopped using the new authority after its constitutionality was questioned in court and the Obama administration declined to defend it.
The senators have been working on their new bill for weeks, but they said the court ruling reinforced the need for reform. “This legislation would improve on the law we enacted in 2014,” Rubio said.
The bill would allow the department’s secretary to fire, suspend or demote an employee with only 15 days notice. Affected workers would then have seven days to issue a response before a final decision is made. Any employee facing removal, suspension of at least 14 days or a demotion would have 10 days to appeal the action to the Merit Systems Protection Board. MSPB would then have 180 days to issue a decision, a much longer period than the 45-day timeline set up in the House bill. Employees would maintain the right to appeal an MSPB decision to federal court.
Employees covered by a collective bargaining agreement would also maintain the right to appeal a negative personnel action through the grievance process, though it would have to be resolved within 21 days. House Republicans eliminated the grievance process entirely, complaining it took an average of 350 days to complete. The American Federation of Government Employees, which represents 230,000 VA employees, called the House legislation “a union-busting bill, plain and simple.”
In another significant break from the House bill, the Senate measure would create a unique disciplinary process for members of the Senior Executive Service. Their firings, demotions and suspensions would take place on the same timeline as the rest of the workforce, but any appeals would be handled internally at the newly created Office of Accountability and Whistleblower Protection. President Trump -- who has advocated for more accountability at VA as a candidate on the campaign trail and again as president -- signed an executive order in April to create the office, which the Senate bill would codify. The timing of the internal grievance process would mirror that for unionized employees.
“When the VA cannot hold bad actors accountable, everyone loses,” Isakson said. “Taxpayer dollars are wasted on employees who are not fully committed to helping our veterans. Other employees at the VA suffer because they are forced to work alongside or take direction from delinquent individuals.”
Tester also highlighted the impact the bill would have on VA’s best employees.
“This bipartisan bill will hold bad employees accountable while protecting the hardworking folks who care for our veterans,” Tester said.
In addition to fulfilling a Trump campaign promise, the bill would give VA Secretary David Shulkin the authority he has requested since his swearing in. He endorsed the House bill and told Trump in a meeting after its passage he was “very, very grateful” for it. Trump’s VA plan during the campaign specifically called for more SESers to be fired.
VA’s assistant secretary who runs the new accountability office will recommend to the secretary disciplinary action for any employee found to have engaged in misconduct or poor performance. The secretary would then have to justify to Congress if he declines to take the recommended action within 60 days. The assistant secretary would also have to report to the secretary and Congress within 18 months on the methods the accountability office has used to investigate employees and whether that has led to any whistleblower retaliation.
Similar to the House bill, the Senate measure would allow VA to revoke bonuses paid to employees if they were found to have engaged in misconduct or poor performance prior to the award. Employees could appeal that decision to the director of the Office of Personnel Management and then MSPB. Workers found guilty of a felony that could have affected their work could see their retirement benefits reduced.
While the Senate bill in some ways takes a softer approach than the House measure, Dan Caldwell, policy director for the conservative group Concerned Veterans for America, which has long called for a faster disciplinary process at VA, said the more aggressive approach toward removing SESers means that, “On balance, both are still pretty strong accountability bills.”
Caldwell said the bill would “give Secretary Shulkin the authority he needs to hold department employees responsible for their actions, something he has repeatedly said is necessary in order for him to fix the toxic culture there.” Taken together, Caldwell added, the measure “will disincentivize bad behavior within the VA and further protect those who bravely expose wrongdoing.”
Despite the House already passing its own bill, Reps. Phil Roe, R-Tenn., and Tim Walz, D-Minn., both threw their support behind the Senate legislation. Roe introduced the House measure, while Walz declined to support it.
“Our veterans deserve to know that bad actors within the department will be held accountable, and I look forward to supporting this bipartisan bill in the House,” Roe said.