Department of Veterans Affairs (VA) officials, upset that a few rulings have not gone their way, now want to eliminate a key means of outside review for agency senior executives facing disciplinary actions.

If the officials, and their congressional allies, get their way in this rare, public dispute between federal agencies, it potentially could weaken the government-wide, independent Merit Systems Protection Board (MSPB), which provides a shield against loading the civil service with political cronies.

Rep. Jeff Miller (R-Fla.), chairman of the House Veterans Affairs Committee, seems to think the MSPB will be Uncle Sam’s ruination because it is “so biased in favor of misbehaving government bureaucrats.”

The MSPB is “setting the entire federal government up for failure,” he said. “The MSPB forces agency leaders to wastefully accommodate employees they have no confidence in by either keeping them on the payroll or in leadership positions or paying them vast sums of taxpayer money to get them to leave government employment.”

VA Secretary Bob McDonald told Congress this month he would like to move his Senior Executive Service (SES) members now working under a set of personnel laws known as Title 5, which covers most civil servants, to Title 38. Title 5 allows SES appeals to MSPB. Title 38 does not.

Title 38 allows greater pay flexibility that could provide better wages. But that would come at a price – elimination of a key outside review avenue for demotions or terminations at a time when members of Congress are calling for aggressive action against federal employees accused of misbehavior or poor performance. They would be allowed an internal review procedure, but that comes with an inbred problem.

With an internal procedure, VA management would be the accuser, the prosecutor and the judge. Institutions like the MSPB were created to provide an independent forum that could protect employees from a system where staffers could be battered about by political appointees who might change with the political winds.

The current kerfuffle arose when an MSPB administrative judge overturned the dismissal of Linda Weiss, the former VA Medical Center director in Albany, N.Y.

Deputy Secretary Sloan Gibson, the man who fired Weiss, said under the law “my judgment is owed considerable deference by the MSPB. Yet based on this and other recent decisions, it appears the MSPB does not agree with the Congress’s or the VA’s interpretation of the extent of my authority and has, once again, substituted its judgment for mine and demonstrated a willingness to second guess the VA’s application of legitimate high standards for accountability.”

Gibson sounds like he wants knee-jerk approval of his decisions, which is the appearance an in-house appeals process would provide.

Comments like those from Miller and Gibson show that for Congress and the Obama administration “the true intent of the 2014 Choice Act’s expedited appeal procedure, which was applied to VA’s career senior executive service, was to be a rubber stamp on the VA’s disciplinary determinations, and not afford career executives true due process,” said Senior Executives Association (SEA) interim President Jason Briefel.

The Choice Act, sponsored by Miller, significantly undermined due process rights for VA senior executives by sharply cutting the MSPB appeals process for them only. But now Congress is moving to extend that expedited process to senior executives across government. The House Oversight and Government Reform Committee approved legislation doing that last month. If MSPB is taken down for VA senior executives, what’s to stop that from happening to other federal employees?

VA officials were not keen on cutting the SES appeals process when it was being considered, but now they want to go well beyond that assault on due process “because we are like a business,” McDonald said.

Miller echoed that business theme when he said “no business in the world could operate efficiently and effectively if many of its major personnel decisions were subject to approval by an unaccountable board with a strong bias against accountability.”

Beyond the fact that MSPB supports accountability, there is a basic problem with comparing the VA to a business. It is not a business and when it comes to employee protections it should not operate as one. Civil servants and the government that employs them are required to serve everyone in the country without partisanship. Private employers often can fire at will, with workers having little recourse. Government workplace protections guard against a spoils system.

Gibson said the decision in the Weiss case by MSPB administrative judge, Arthur S. Joseph, “is unenforceable under the law, and does not entitle Ms. Weiss to return to VA employment… The judge’s decision today runs counter to VA’s core values.”

Ironically, Joseph agreed with Gibson on many of the charges against Weiss. But Joseph felt dismissal was too harsh, given the totality of her record. The law prevented him from imposing a lesser punishment, so he overturned Gibson’s decision.

“The facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense,” he wrote. He would have mitigated the punishment, but “because that is not allowed, the only option is to reverse the action outright.”

Maybe the law needs fixing. Throwing out an independent appeals process and further cutting workplace rights is not the answer.

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