Two of the more recent bills illustrate the differing approaches to VA staffers.
At a Senate Veterans Affairs’ Committee hearing Wednesday, Sen. Kelly Ayotte (R-N.H.) urged her colleagues to join the House in approving legislation that would punish employees who were involved in the manipulation of electronic wait lists at VA hospitals. The bipartisan legislation, co-sponsored by Sen. Clair McCaskill (D-Mo.), would allow the Department of Veterans Affairs to take back bonuses paid to employees identified by the head of the agency as having eliminated one or more names from wait lists.
“It’s outrageous,” Ayotte said, “that VA employees who deliberately manipulated wait lists received bonus pay at taxpayers’ expense.”
But the VA has constitutional, policy and procedural concerns about the bill.
In a statement to the committee, David R. McLenachen, a VA acting deputy undersecretary, said, “S. 627 [Ayotte’s legislation] is a bill for which there is no precedent. No federal agencies have the authority to require employees to repay past monetary performance awards or bonuses that were given in accordance with law and without conditions or contractual obligations. This legislation threatens a number of core constitutional rights related to property and due process that the Framers of the Constitution sought to protect.”
Meanwhile, the VA Employee Fairness Act of 2015, introduced by Rep. Mark Takano (D-Calif.) and co-sponsored by Rep. Chris Van Hollen (D-Md.), takes a more employee-empowering approach endorsed by the American Federation Government Employees (AFGE) and the National Federation of Federal Employees. It would repeal the current prohibition against collective bargaining for VA health-care professionals.
“The Phoenix scandal from last year was a result of a number of issues, including understaffed hospitals and a lack of capacity at the VA to provide timely care,” Takano told the Federal Diary on Thursday, a reference to the Phoenix facility at the heart of the scandal. “The VA Employee Fairness Act aims to give VA health providers collective bargaining rights, which would, in turn, attract more workers to the profession, reduce turnover, increase stability and, thus, provide better care to our veterans.”
AFGE President J. David Cox Sr., a former VA nurse, praised the bill, saying VA “clinicians need an equal workplace voice to speak up for adequate staffing, safe schedules and other practices that affect patient care. These rights are essential components of the department’s commitment to increase accountability through greater whistleblower protections and regular feedback from front-line employees.”
Concerns about violating due process also apply to the Veterans Access, Choice and Accountability Act, which was signed into law last year. The former director of the VA facility in Phoenix, Sharon Helman, is taking court action against the law and her dismissal, which resulted from the wait-time scandal.
Helman was fired as director of the Phoenix VA Health Care System after it became the focal point of the scandal over bogus wait times. The former Senior Executive Service member had led the Phoenix facility since February 2012.
The act applies only to VA senior executives. It allows them just seven days to appeal termination. A Merit Systems Protection Board administrative judge must decide on that appeal within 21 days or the VA decision stands. These time frames are significantly shorter than those that apply to other federal employees.
Helman argues that the law “required her to challenge her removal in a severely truncated proceeding with no meaningful opportunity for discovery or development of a record.”
The law also excludes the presidentially appointed members of the MSPB from the appeals process for VA senior executives. Helman’s brief said that violates the “appointments clause” of the Constitution, by taking away authority from officials who are appointed by the president and confirmed by the Senate.
The Justice Department, representing the VA, said Helman’s case should be dismissed because under the law the administrative judge’s decision is “final and shall not be subject to any further appeal.”
Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs and author of the challenged law, said the notion that it is unconstitutional “is preposterous and…hinges on arcane legal arguments and tortuous logic to defend dysfunctional civil service rules that contributed to VA’s accountability crisis in the first place.”
Miller added: “Basic common sense dictates that VA should have the ability to quickly fire failing senior executives for cause, that’s why 511 members of Congress plus the president of the United States took action to give the VA secretary that power by passing the Veterans Access, Choice and Accountability Act.”