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House tries again to give Veterans Affairs Department more power to discipline employees

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The House on Tuesday will take up another of a string of bills designed to give the Department of Veterans Affairs a freer hand in disciplining its employees for poor performance or misconduct — provisions the Obama administration has opposed, although not to the point of threatening a veto.

The bill would shorten the time that employees are given to respond when management proposes discipline against them, including firing, and would also require the Merit Systems Protection Board, an independent agency that hears appeals of disciplinary actions, to issue a decision within 60 days.

For senior executives, the time to respond also would be restricted, and they could appeal only to an internal VA review board. The discipline would stand by default if that board did not issue a decision within 21 days, and even rulings in favor of the employee could be overturned by the VA secretary.

The right to pursue appeals into federal court would remain, although that, too, would be restricted.

“The biggest obstacle standing in the way of VA reform is the department’s pervasive lack of accountability among employees at all levels. Until this problem is fixed once and for all, long-term efforts to reform VA are doomed to fail,” House Veterans Affairs Committee Chairman Jeff Miller (R-Fla.) said when introducing the bill in July.

The House plans to take up the bill late Tuesday with final voting expected Wednesday.

In a policy statement released late Monday, the White House said it is “deeply concerned” about those provisions, saying they could “undermine VA’s workforce and could ultimately hinder” services to veterans.

The administration “believes that the approach to accountability in the legislation — focused primarily on firing or demoting employees without appropriate or meaningful procedural protections — is misguided and burdensome. … This approach significantly alters and diminishes important rights and protections that are available to the vast majority of other employees across the government and which are essential to safeguarding employees’ rights and the merit system,” it said.

The bill is the latest in a series arising out of the two-year-old VA patient scheduling and care scandal, with much of the focus on members of the Senior Executive service, a layer of mostly career employees between political appointees and midlevel managers. A 2014 law gave VA enhanced power to discipline its executives, but VA used that authority against only a few of them before deciding to no longer use it; that followed a Justice Department decision to not defend the law against a suit claiming it violated due process rights.

DOJ won’t defend measure that facilitates VA firings

Attempts to limit appeal rights at VA — the House last year passed a more restrictive bill that the White House did threaten to veto, and another is pending in the Senate, based in part on recommendations from VA itself — are considered a potential precedent for making similar changes governmentwide. With some 330,000 employees, the department accounts for about 1 in 6 federal employees outside the independent U.S. Postal Service.

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Apart from the appeal rights changes, the bill would allow VA to recoup awards and relocation incentive payments from employees later found to have committed misconduct, as well as to reduce the later retirement benefits of executives convicted of certain crimes related to their official duties. It also would bar paying any VA executive a performance award for the next five years.

“These provisions will make it more difficult for VA to attract the top talent that is needed to serve veterans, limit the rights of VA employees and senior executives, and set back the work done by VA to rebuild veterans’ trust,” the administration policy statement said.

Similarly, in a letter to Congress, Senior Executives Association interim President Jason Briefel said the bill “suggests more of an interest in the appearance of reforming the VA workforce than a real commitment to undertaking the hard work of understanding what the real problems are, working with stakeholders to craft a solution, and holding parties responsible to see improvements through to a conclusion.”

The administration’s statement did not mention a separate set of provisions aimed at strengthening protections for employees who make whistleblowing disclosures, including mandatory discipline against management officials who retaliate against them, in certain circumstances. That is a reaction to widespread complaints by VA employees that they suffered reprisal for raising concerns or for cooperating with investigations.

VA culture of reprisals against whistleblowers remains strong after scandal

The administration meanwhile said it “strongly supports” a provision to speed up challenges to the department’s decisions on benefit claims by creating separate appeal routes for veterans to choose depending on the nature of the appeal. The current one-track system has a backlog of 450,000 appeals and an average waiting time of three years, the statement said.

Also Wednesday, the House committee will hold a hearing on the department’s paying of cash as part of settlement agreements with employees in disciplinary actions.