In a highly unusual move, the federal agency that hears appeals of disciplinary actions against federal employees has defended itself against assertions that it is misapplying the law and coddling poor performers.
The Merit Systems Protection Board, an independent agency that acts like an internal government judicial system, has posted a statement on its website regarding recent decisions in which its hearing officers overturned disciplinary actions the Department of Veterans Affairs wanted to take against three senior executives.
“In response to these rulings, some have suggested that MSPB is protecting poor performing employees at the Department of Veterans Affairs. These suggestions are baseless and unfair,” it said.
Hearing officers called administrative judges ruled in favor of the executives — one of whom the agency sought to fire and the other two to demote — even though under a 2014 law, Senior Executive Service members at the VA have more restricted appeal rights than those in other federal agencies. They have less time to file an appeal; the administrative judge must issue a decision within 21 days or else the agency wins by default; and there is no further right to appeal.
The roughly 8,000 SES members, nine-tenths of them career employees and the rest political appointees, are between top appointees and mid-level managers.
The recent decisions spurred criticism from House Veterans Affairs Committee chairman Rep. Jeff Miller (R-Fla.), who said of one of the rulings, for example, that it “defies common sense.” VA Secretary Robert McDonald said last week at a hearing that “it seemed to us that the merit board judges didn’t understand Congress’ intent or our intent in punishing those employees.”
McDonald suggested that even stricter limits be applied to appeal rights for the VA’s roughly 350 SES members, an idea that could be turned into legislation soon.
[interstitial_link url="https://www.washingtonpost.com/news/federal-eye/wp/2016/02/12/tighter-limits-on-appeal-rights-of-va-execs-being-considered/"]Tighter limits on appeal rights of VA execs being considered[/interstitial_link]
Like other judicial bodies, the MSPB typically does not comment on its decisions after issuing them. However, its posted statement says that it “is required to apply laws created by Congress and legal precedent, as established by Federal courts, when adjudicating appeals. With respect to burdens of proof applied by MSPB, they are contained in title 5 of the United States Code. Moreover, it should be noted that the 2014 Act made no changes to these burdens of proof.”
“The 2014 Act did not change any statutory burden of proof to be applied in these appeals. Therefore, unless the law is changed, these statutory burdens of proof continue to apply, as they do in all other appeals filed at MSPB,” it said.