On Tuesday the Senate passed the bipartisan Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. This is a significant civil service change that some believe is a great reform and others believe could undermine the civil service. Along with the changes in the Department of Defense reduction in force rules and buyouts, there is a high likelihood that these single-department reforms will make their way into the other departments. Comprehensive civil service reform is hard to do. Department -by-department changes that can be proven effective, or at least proven not to screw things up too much, are the best way to try out a variety of reforms with less opposition than an all-encompassing reform package would generate.
So is this a good bill or a bad bill? The last time a similar bill was making its way through Congress, I concluded that the earlier version had a lot of problems. Among them were the haste with which employees could be fired, an appeals process that was too internally focused, and an unhealthy focus on sticks with too little attention paid to the carrots that would help the majority of the VA workforce who are dedicated employees who do good work.
After reading this bill and the changes that have been made to garner bipartisan sponsorship, my conclusion is that, with respect to most employees, this bill is much improved. Here are the main provisions of the bill and why I believe it is an improvement over the earlier bill.
- The bill would establish an Office of Accountability and Whistleblower Protection, headed by a presidential appointee with the rank of Assistant Secretary and reporting directly to the Secretary. The assistant secretary would not have other duties, so the responsibilities of the office cannot be diluted by assigning other missions to it. The office would have authority to develop policy and receive whistleblower complaints and complaints against Senior Executives, political appointees and supervisors. It would also analyze data and track implementation of recommendations from the Inspector General, Medical Inspector, Special Counsel and the Government Accountability Office. These changes are likely to place increased emphasis on the department’s responsiveness to such investigations and recommendations. The bill also adds protection of whistleblowers as a required critical performance element for supervisors, requires training regarding whistleblower disclosures, and adds reporting that may disclose whether the department retaliates against whistleblowers. The bill’s provisions are generally considered by veteran service organizations (such as the Veterans of Foreign Wars, and the Iraq and Afghanistan Veterans of America) and government transparency advocates to be favorable to whistleblowers and likely to improve accountability.
- Senior executive accountability. The bill significantly strengthens the Secretary’s ability to discipline and remove senior executives. While it guarantees advance notice, the ability to be represented by an attorney or other representative, and the ability to grieve the decision using a procedure the Secretary and the newly created Assistant Secretary would design, it reduces the time for the processes to 15 business days, including up to 7 business days for the executive to respond to the proposed action. The grievance procedure would be limited to 21 days. The bill provides for judicial review of such actions, but it reduces the burden of proof to “substantial evidence” rather than “a preponderance of the evidence” and limits the nature of the court’s review. Standards for a preponderance of evidence are well-established in administrative and judicial case law. Substantial evidence is less clear, so it will take time to understand exactly what it means. Most importantly, the bill does not provide for review by the Merit Systems Protection Board (MSPB). The elimination of MSPB review would get around the problems existing VA executive MSPB appeal provisions that have been challenged as unconstitutional. However, it increases the cost of an appeal by pushing it into court, where an executive who chooses to represent himself/herself is unlikely to prevail. This provision does not make VA executives at-will employees and it does provide some degree of protection against arbitrary and capricious actions. The Senior Executives Association is strongly opposed to the bill and is concerned that it may make it more difficult for VA to recruit executive talent and may lead to firings for political reasons. It is true that this town loves to see heads roll when there is a scandal, so I would have preferred to see the ability to appeal to MSPB.
- Employee accountability. The bill provides the VA Secretary with the authority to “remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” It reduces the period for notice, response and final decision to no more than 15 business days, with 7 of those days be allocated to an employee’s response to the proposed action. Employees removed for performance reasons (rather than misconduct) under the provisions of the bill would not have the performance improvement period provided under 5 USC Chapter 43. The bill reduces the time for appealing actions to MSPB to 10 business days following the effective date of the action (from the current 30 calendar days), and requires the MSPB administrative judge to issue a decision within 180 days from the date of the appeal. As with senior executives, the burden of proof is reduced to “substantial evidence” from the current preponderance of the evidence. It also prohibits MSPB from mitigating penalties. The bill allows employees whose appeals are denied by an MSPB administrative judge to appeal to the full MSPB, and provides for MSPB decisions to be appealed to the U.S. Court of Appeals for the Federal Circuit or other court of appeals of competent jurisdiction. The bill overrides the provisions of any collective bargaining agreement that is in conflict with its provisions. American Federation of Government Employees President J. David Cox, whose union represents many VA employees, called the bill “a bad piece of legislation” that “creates many problems.”
- Reduction of benefits of employees convicted of crimes. The bill provides for reduction of the annuities of removed or retired employees who are convicted of crimes. It provides for review of such decisions by the Office of Personnel Management. It also provides for recoupment of bonuses and awards paid to employees when the Secretary concludes the department would not have paid the bonus had it known of an employee’s misconduct. Again, it provides for review of those decisions.
The accountability provisions of this bill are not unreasonable with respect to employees who are not executives. The MSPB review allows ample time for the MSPB proceedings, provides for review by the full board, and for judicial review. The reduced burden of proof is likely to create some issues until it is better defined in case law. The ability to reduce the pensions of criminals is unlikely to have many detractors. The executive provisions would be much better if they provided for MSPB review. So – I believe the bill is a mixed bag. Some good, some not so good.
This bill was passed by the Senate in a voice vote and is likely to be passed by the House and signed by the president. There is little reason to believe it would not withstand judicial scrutiny. That means it is likely to be permanent. Once enacted, if it provides any success for the department in dealing with problem employees, but does not generate problems with abuse of its provisions, we should expect to see similar bills that would cover more or all of the federal workforce.
I am not convinced it will make the level of difference its supporters are hoping to see, or that its detractors are predicting. In those agencies and types of appointments where there is little or no right to appeal (such as probationary employees), we do not see large numbers of removals. Partly that is because some supervisors need better training, some need better management/HR/legal support, and some need a backbone. The Department of Veterans Affairs and any other department or agency that want to deal effectively with employee misconduct and poor performance must also address those issues, and should also have better tracking, analysis and reporting on the cases they choose to take on.