Miller says that the VA has only attempted to discipline eight people for manipulating patient wait times and has not fired any employees at all for data manipulation.
In a Feb. 15 appearance on “Meet the Press,” Secretary Robert “Bob” McDonald claimed that 60 department workers had been fired in recent months for problems related to the VA’s wait time scandal, but the secretary later backtracked to say that only eight had lost their jobs.
The Washington Post’s Fact Checker gave McDonald “four Pinocchios” for wildly inflating his “firing” statistics.
Last year, the Department of Veterans Affairs formally removed Sharon Helman, director of the Phoenix VA’s Health Care System and the leader at the center of the biggest scandal in the agency’s history.
But the ruling by the Merit Systems Protection Board (MSPB) could not substantiate that Helman knew or should have known that employees at her hospital lied about health-care wait times for former troops seeking treatment for everything from cancer to post-traumatic stress disorder. Instead, as the basis for upholding Helman’s removal, the judge named other charges against her by the VA, which said she accepted “inappropriate gifts,” such as a trip to Disneyland “in excess of $11,000 for what appears to be six of her family members for an 8-night stay” and $729.50 for five tickets last year and parking to a Beyonce concert on Aug. 24, 2013.
In a statement Miller said that the VA often just transfers employees to other VA facilities or puts them on paid leave for months on end, “ensuring taxpayer money is wasted and that bad employees spread their problems to other locations. From Philadelphia to Reno, Nev., to Nashville, Tenn., to Phoenix, VA’s tradition of transferring problem workers, putting them on paid leave or simply allowing them to go virtually unpunished continues because current civil service rules make it extremely difficult to properly hold employees accountable,” he said.
Veterans of Foreign Wars and Concerned Veterans for America released the following statements in support of Miller’s bill:
“VA employees need to understand that if they harm veterans, then they will be fired. This bill delivers on that idea and is worthy of our support,” said Raymond Kelley, VFW’s national legislative service director.
American Legion national commander Michael D. Helm also expressed support for the bill. “There needs to be a better, more efficient way to clear out these bad actors and make room for the thousands of VA employees who want to serve veterans to step up and take charge,” Helm said. “It’s not too late to turn this ship around for VA, but it’s going to take accountability at all levels.”
Miller’s bill would:
Give the secretary the authority to remove any VA employee based on performance or misconduct. The employee would have the right to an appeal before the Merit Systems Protection Board within seven days of their removal, and the MSPB would have to make a final decision on the removal within 45 days of the appeal submission.
Legislation providing the secretary authority to remove VA senior executive service employees in a similar bill was signed into law by the president last August.
But Marilyn Park, the legislative representative with the American Federation of Government Employees, said the legislation targets lower and mid level employees like scheduling clerks and nurses, ends due process and puts whistleblowers at risk. She called the bill “the VA anti-accountability act of 2015.”
“I think this is horrific. How dare Jeff Miller do this, “ Park said. “This is not the people with the big fat bonuses. Why did he have to take a tsunami approach and take a sledge hammer to all workers. I’m not saying do everything we can, but he’s undermining the very thing he stood for, which is protecting whistleblowers. The numbers do not scream people are being held accountable. But this is not the way to do it. Everyone deserves their day in court to defend themselves.”
Miller’s bill would limit the secretary’s authority to remove or demote an employee if they are a whistleblower who has filed a claim with the Office of Special Counsel (OSC).
But Park said that not everyone in clinics across the nation is going to go to the OSC.
“The way to clean up the VA is not to take the very people who exposed management and be able to get rid of them without any rights for federal employees,” Park said.
Miller’s bill would also require that all probationary periods for new VA employees last for at least 18 months – instead of the current period of one year. It would also give the secretary the authority to extend this probationary period as he sees fit.
Typically, when an employee is fired or the subject of other discipline that can be appealed (downgrade, suspension of more than two weeks, etc.) the appeal first goes to a hearing officer, called an administrative judge, of the MSPB (alternatively, an employee may file a grievance through a union-negotiated process, if in a union bargaining unit).
The administrative judge acts like a district court, reviewing documents and conducting a trial at which witnesses testify. There is no time limit on these, although as a practical matter decisions commonly happen within a few months. If an employee loses, he or she can file an appeal with the three-member MSPB governing board, which acts like an appeals court, and which also typically means several months. From there, the employee could appeal into federal circuit court.
Standard policy is that the employee has 30 days to file an appeal (60 if asking for alternative dispute resolution). This bill would cut that to seven days.
Given the general frustration among Republicans about agency accountability and lack of disciplinary actions, union leaders say, they expect pressure, if this is enacted, to apply similar ideas to the rest of the government.
“This sets a very dangerous precedent,” Park said.
Eric Yoder contributed to this report.