In the letter, as previously reported by CNN, Lynch said the Justice Department would not defend a section of the Veterans Access, Choice and Accountability Act of 2014. Among its many good points, the law also severely weakened the ability of VA senior executives to appeal disciplinary actions. That threatens the federal civil service system generally – a system that protects the public and the government, not just federal employees, from undue political influence in government operations. The bill passed with Democratic and Republican support and the White House, unwisely, said nothing about the provision at the time.
That section of the law denied any role to the presidentially appointed members of the Merit Systems Protection Board (MSPB), a quasi-judicial panel that reviews federal employee disputes. Instead, the law gave hearing officers, administrative judges who are employees, power that under the Constitution belongs to politically appointed “Officers of the United States,” according to Lynch. For most feds, administrative judge rulings can be appealed to the three-member MSPB board. The law abolished that right only for VA senior execs, placing them in an inferior position compared to colleagues in other agencies.
“That scheme,” Lynch wrote, “which impairs the President’s ability to supervise the execution of the federal civil service laws, is inconsistent with the Appointments Clause” in the Constitution.
While outraged Republicans charged the Justice Department’s decision could help Helman, the government’s brief in the case makes it clear the Obama administration is not on her side.
Helman “was properly removed from her senior executive position in the Department of Veterans Affairs for a range of misconduct,” the brief says. “That misconduct included knowingly accepting, and intentionally failing to report, tens of thousands of dollars in gifts—including tickets to a Beyoncé concert and a Disneyland vacation—from a consultant who represented companies actively seeking business with the agency.”
Some folks deserve to be fired. The process to get rid of federal employees can be frustratingly slow and cumbersome. Boosting MSPB staff and resources so it can handle cases more quickly could be one part of the solution. But the answer should not be a law that so undermined the ability of VA senior executives to appeal actions that the Senior Executives Association considered it “a sham” of due process rights. Restricting the appeal rights was only one portion of the measure that also included significantly reduced appeal timelines. If a hearing officer does not overturn a ruling against an employee in three weeks, much less time than cases generally take, then the VA wins by default.
Rep. Jeff Miller, the Florida Republican who has been relentless in his pursuit of VA improvements following the scandal over cover-up of long patient wait times, thinks those strict measures are appropriate. “I’m outraged by the Obama administration’s decision, which is remarkably hypocritical given the fact that President Obama enthusiastically supported this law,” said Miller, who is chairman of the House Veterans’ Affairs Committee. “The effect of this reckless action is clear: it undermines very modest reforms to our broken civil service system supported in 2014 by the president and an overwhelming majority of Congress. . . . This decision only underscores the urgent need for civil service reform across the federal government that enables leaders to swiftly and efficiently discipline those who can’t or won’t do their jobs – an ability that is presently almost nonexistent.”
Swift discipline sounds good, but without effective safeguards it can come at a cost – decimation of the due process protections that are fundamental to the federal civil service system. The civil service system guards against politically motivated personnel decisions, as was common under the spoils system.
Said Jason Briefel, SEA’s interim president: “The Constitution is the law of the land and cannot be dismissed or ignored.”