New VA law tackles agency problems, but also hurts employee rights

In many ways the veterans reform legislation President Obama signed Thursday represents the way government should work – with one egregious exception.

President Obama speaks to the members of the National Governors Association in the State Dining Room at the White House on Feb. 24, 2014. (Jewel Samad/AFP/Getty Images)
(Jewel Samad/AFP/Getty Images)

The widely praised and broadly supported measure will likely help set right a seriously misguided Department of Veterans Affairs. The VA will be able to hire more doctors, nurses and other health-care providers and increase health care facilities. Care for sexual assault victims should improve and some vets will get a “Veterans Choice Card” allowing them care outside of VA facilities at the agency’s expense.

Noting the bill “was passed overwhelmingly, with bipartisan majorities — and that doesn’t happen often in Congress,” Obama said: “It’s a good deal.”

But not for everyone.

The many good points in the bill could stand strong without the gratuitous and punitive hit on the civil service rights of Senior Executive Service (SES) members in the department.  The law singles them out for vindictive action by seriously eroding the appeal rights of senior executives the VA wants to fire or demote. VA SES members now have just one week to appeal those actions and Merit Systems Protection Board (MSPB) administrative judges must act on appeals within 21 days. The decision of an administrative judge “shall be final and shall not be subject to any further appeal,” the law says.  If a ruling is not made within 21 days, the department’s action is final.

Those timelines make the appeals a “sham,” as Carol Bonosaro, president of the Senior Executives Association described it. Currently, the entire process can take a year to complete. That’s too long, but this law is no cure.

“Characterizing this as due process requires a significant stretch of one’s imagination and is an insult to the term ‘due process,’” Bonosaro said.

Congress also undercut the power and authority of presidential MSPB appointees – a point that could be the basis of a legal challenge. Board members generally hear appeals of decisions made by administrative  judges. VA SES members no longer have that option, which means the board members are locked out of  those cases.

The three-member MSPB is a bipartisan board. In a letter to Obama all of them complained about this provision. They said it “could set a very dangerous precedent, under which it is viewed permissible for Congress to undermine…the ability of presidentially-appointed…Officers of the United States to carry out the mission of the agency to which they were appointed to lead.”

Keep in mind that civil servants have appeal rights generally not provided by the private sector for a good reason – to keep political favoritism out of government. Feds can be fired and demoted, but their appeals process protects all of us from a spoils system that runs agencies for the benefit of political cronies.

Yet, Obama, speaking at the bill’s Fort Belvoir signing ceremony, praised the due process hit, saying: “We’ve got to give Bob [new VA Secretary Robert A. McDonald] the authority so that he can move quickly to remove senior executives who fail to meet the standards of conduct and competence that the American people demand. If you engage in an unethical practice, if you cover up a serious problem, you should be fired. Period. It shouldn’t be that difficult.”

Yes, those who cooked the books, or caused them to be, should be disciplined, fired or prosecuted if warranted. And a difficult, long-drawn appeals process cries out for well-considered reform that does not single out one group of employees.

Piecemeal, retaliatory legislation is not the way to build a better, more responsible workforce.

Read more in the Federal Diary online Thursday evening and in Friday’s printed editions of The Washington Post.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012.
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