Senior executives at the Veterans Affairs Department would be even further restricted in their rights to challenge disciplinary actions against them under a plan being discussed between the department and congressional committees overseeing the VA.
While the roughly 350 Senior Executive Service members at the department already have fewer rights than their counterparts at other agencies, the change being considered would essentially end their right to outside review of discipline ranging up to firing, according to the Senior Executives Association.
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At a hearing on the 2017 budget before the House Veterans Affairs Committee on Wednesday, VA Secretary Robert A. McDonald raised the prospect of putting senior executives there under a set of personnel laws called Title 38 that apply to medical personnel at the department. While those laws provide for more flexibility in paying employees than standard federal employment laws, called Title 5, they also allow for discipline to be challenged only through internal department channels.
Under a 2014 law, SES members at the VA already have a shortened time to file an appeal at the Merit Systems Protection Board; the board’s hearing officers, called administrative judges, must issue a decision within 21 days or else the agency wins by default; and there is no right of further appeal beyond that level. That law was enacted in the wake of disclosures that appointment scheduling data had been manipulated to make it appear that waiting times were shorter.
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McDonald said the department is considering further restrictions in the wake of recent decisions by MSPB administrative judges who overturned the department’s proposed discipline of three senior executives — one who was proposed to be fired, the other two demoted — even under those procedures.
“It seemed to us that the merit board judges didn’t understand Congress’ intent or our intent in punishing those employees,” McDonald said at the hearing.
He and other top VA officials had first raised the prospect of moving senior executives to Title 38 in a meeting with the bipartisan leaders of both the House and Senate veterans committees the day before.
No formal proposal has been made, however. “We have to do a lot more work on it; it’s just preliminary,” he said.
No members of the committee commented directly on the idea at the hearing, although Chairman Jeff Miller (R-Fla.) had called for further tightening of appeal rights in light of the MSPB rulings. Specific language based on the idea “will be immediately incorporated into current and ongoing negotiations between the House and Senate Committees on Veterans’ Affairs on a package of veterans legislation, with the goal of getting it signed into law this year,” a congressional aide said in an email.
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Jason Briefel, acting president of the Senior Executives Association, said the department appears to have “shifted direction” in light of the recent decisions.
“This is about having no transparency or visibility to the action the agency has taken because there would be no outside review,” he said. MSPB cases generate a public record that is valuable for understanding what happened, he added.
Briefel noted that the Obama administration last year threatened to veto a House-passed bill to restrict appeal rights of all VA employees, although not as severely as the 2014 law does for senior executives there.
“What’s most disappointing to us is that the administration came out against applying it to the entire VA workforce, but when it comes to senior executives, it’s willing to treat them as second-class citizens,” he said.