“Notwithstanding Any Other Provision of Law…”

It is hard to read the newspaper or watch cable news without seeing coverage of the Department of Veterans Affairs. As both a former career senior executive and a political appointee, I was particularly surprised when on May 21, the House of Representatives passed H.R. 4031 – the “Department of Veterans Affairs Management Accountability Act of 2014.” The House Veterans Affairs Committee says the Bill will “give the Secretary of the Department of Veterans Affairs authority to remove employees of the Senior Executive Service, whose performance the Secretary believes warrants removal, from the government service completely or transfer them to a General Schedule position within the current civil service system.” Passed in response to the scandal over alleged misconduct at 26 VA medical facilities, the Bill is a sweeping piece of legislation that may have many unintended consequences.

On its surface, this legislation is simple. It says in part “Notwithstanding any other provision of law, the Secretary may remove any individual from the Senior Executive Service if the Secretary determines the performance of the individual warrants such removal.” Its simplicity belies the risks it presents. “Notwithstanding any other provision of law” is language that has been used before. I first encountered it in Section 111(d) of the Aviation and Transportation Security Act (ATSA) that created the Transportation Security Administration. ATSA allowed TSA to create hiring and firing rules “notwithstanding any other provision of law.” When the Bush Administration used the provision to ban collective bargaining for TSA employees, federal employee unions went to court. The courts consistently ruled that the plain language of the law means exactly what it says. Current TSA Administrator John Pistole used the same provision to implement collective bargaining after crafting a labor relations construct that protected the TSA security mission while still offering collective bargaining to Transportation Security Officers. Depending on your views, one of them made a mistake and the other did something very good. The language of 111(d) gave them unfettered ability to make that call.

Why should we care if the same language is used again? Particularly if the legislation gives the Veterans Affairs Secretary the ability to fire poor performers? We should always care when the law grants one person the ability to ignore any other law and deprive people of their rights without due process. H.R. 4031 would grant that power to the Secretary. It provides for no review, no third party to check the broad power it grants, and no restrictions on how it can be used. Should Secretary Shinseki or any future VA Secretary choose to fire senior executives because he believes they too aligned with the priorities of the previous Administration, he can do it. In fact, he could describe virtually anything as performance that warrants removal. Laws regarding discrimination and equal employment opportunity, political activity, reprisal for protected activities, and anything other law on the books today will provide no protection. Notwithstanding any other provision of law means any law, not just the due process of law that some people are describing as “red tape.”

The unintended consequences of this Bill would be dangerous. In effect, it converts every Senior Executive Service position in the Department of Veterans Affairs to a political appointment. The positions will be covered with the veneer of a career appointment, but the ability to fire any executive for poor performance as defined by one person makes them “at will” employees. In the federal government that makes them political appointees in reality if not in name. How many people argue government would be better off with all executive positions filled with political appointees? When a future scandal occurs, the career executives are far more likely to become the sacrificial lambs than political appointees who are a part of the Administration.

Another, more dangerous, risk of the Bill is the chilling effect it will have on the willingness of executives to report misconduct. Whistleblowers are already taking significant risks when they disclose misconduct in their agency. Those who choose to do so rely on the protections of laws such as the Whistleblower Protection Enhancement Act and the requirement for due process before they can be removed from their jobs. This Bill would make any VA executive think twice before questioning actions of their leaders or revealing misconduct that might embarrass the VA Secretary of this or any Administration.

If the Bill is successful and it results in termination of a large number of executives, how will they be replaced? Who would take an executive position under these circumstances, with all of the risks of a political position and none of the benefits? VA executive ranks could quickly be depleted and it will be difficult, if not impossible, to replace them. Current Senior Executives with proven records in other agencies would have no interest in putting their livelihood and career at risk by moving to VA.

The people who crafted this legislation no doubt had intentions to improve the state of affairs of healthcare for our Veterans. If that is what they want to accomplish, they should do the hard work of crafting well thought out legislation that provides a more effective means of addressing poor performance and misconduct. Casting aside every law already on the books is an overreaction and one that will do far more harm than good.

Virtually everyone agrees that our Veterans should receive excellent health care, quick responses to benefit applications, and our undying respect and thanks for their service. Depriving people of the due process of law that Veterans fought to preserve, politicizing the Senior Executive Service, discouraging whistleblowers and giving unrestricted power to one person is not the way to honor Veterans and deliver the benefits they earned.