New VA law does good, but gratuitously hits civil service rights

Joe Davidson
Columnist August 8

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

The widely praised and broadly supported measure will help set right a seriously misguided Department of Veterans Affairs. Its reputation has been corrupted by a scandal involving the coverup of long wait times for health care.

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

VA will be able to hire more 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 to receive 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 law 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 that 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. In many cases, the one-week deadline will be too short for employees to construct a meaningful appeal.

Those timelines make appeals “a sham,” as Carol Bonosaro, president of the Senior Executives Association succinctly 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,” 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, it complained about this provision, saying it “could set a very dangerous precedent, under which it is viewed permissible for Congress to undermine” presidential appointees.

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, even prosecuted if warranted. And a difficult, drawn-out appeals process cries out for well-considered reform that does not single out a group of employees.

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

The SES provisions are an overreaction by Congress to VA deceivers. Employees falsified records in an attempt to meet unrealistic productivity goals imposed by management. The law now prohibits VA from basing performance awards or bonuses on scheduling and wait-time measures. Metrics are not necessarily bad. It is how they are used — or misused — that counts.

Curiously, the law says nothing about protecting agency whistleblowers. Whistleblowers exposed this scandal. But instead of praise from management, VA has treated whistleblowers shamefully. Those who have punished whistleblowers should be facing punishment — after due process, of course.

“As the nation moves into the next phase of VA reform, we must not forget the bravery of front-line employee whistleblowers who risked their careers to speak out for our heroes,” said Alma Lee, president of the American Federation of Government Employees National VA Council.

The AFGE statement praised the legislation but said nothing of the cut to employee rights. AFGE represents most VA employees but not SES staffers. But if union leaders don’t stand up for the rights of all workers, they should not be surprised when the next ax falls on their members.

“If it is the VA today, which agency is next?” asked Susan Tsui Grundmann, MSPB’s chairwoman. “If it’s the SESers today, can it be the GS-15s [General Schedule] tomorrow?”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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