The latest transformations are in the Department of Veterans Affairs Accountability and Whistleblower Protection Act, which President Trump will sign soon, perhaps this week.
While it weakens civil-service protections for all VA staffers, the legislation reserves its sharpest blows for senior executives. They would no longer be able to appeal adverse actions such as firings, suspensions and demotions to the independent Merit Systems Protection Board (MSPB), a process available to most other feds.
Instead, they would be subjected to a disciplinary process that concentrates power under the VA secretary. Under the legislation, the secretary, currently David Shulkin, would be responsible for accusing workers of misconduct or poor performance, imposing punishment on them and ruling on appeals of the sentences he determines.
Shulkin likes that arrangement.
Noting that he will leave much of the process for his nearly 350,000 employees to the regular chain of command, Shulkin said, “I need, as secretary, if I’m going to change this organization, the ability to remove employees that clearly no longer in my view should have the privilege of serving our veterans.”
Rather than making VA, which already has almost 50,000 vacancies, less attractive to workers because of cuts to workplace protections, Shulkin thinks the legislation will “dramatically improve morale” and enhance recruitment, because “there is nothing more demoralizing” than working alongside deadwood, he said.
“I do not see this as a tool that will lead to mass firing,” he told reporters at a Tuesday breakfast sponsored by the Christian Science Monitor, but one “for a small number of people.”
Shulkin indicated he wants “to run this organization the way that the private sector runs organizations.”
Taken at face value, this reflects a serious misunderstanding of the role civil-service protections play in government. Private-sector workers generally can be fired on a boss’s whim. Civil-service procedures are designed to protect public employees and the public against just that. The safeguards ensure that political appointees will not act against staffers — and ultimately taxpayers — who do not toe the party line.
“These provisions strike at the heart of the career-run merit based civil service system by empowering the VA Secretary and political appointees to conduct wholesale political firings of VA senior executives” and could help “trigger a return to the spoils system of patronage,” Senior Executives Association President Bill Valdez warned in a letter to Congress.
Shulkin will not turn VA into a political-hack redoubt, but the fear is understandable. The measure does undermine protections for the top level of civil servants, who could be most affected by political pressure.
Protections for rank-and-file employees also would be hit.
Like with the senior executives, the time for other staffers to respond to adverse actions would be cut to seven business days — not much when management can take all the time it needs to build its case. Managers also would have to back their case with “substantial evidence,” a lower standard than a “preponderance of evidence.”
Regular employees, unlike those in the Senior Executive Service, could appeal to a MSPB administrative judge then to the full MSPB. All employees, including senior executives, could appeal to the court system, but that is time-consuming and too expensive for many.
“This law is not about dealing with bad actors,” said J. David Cox Sr., president of the American Federation of Government Employees, which represents many VA staffers. “The VA already has the tools to fire those whom the evidence proves deserve to be fired. Their ultimate goal is to destroy the foundation upon which our non-political, merit-based civil service was created and turn the entire government into an at-will workforce.”
When laying off civilian employees, the Pentagon now considers performance first, ahead of other factors such as seniority.
Jeff Neal, a former chief human-capital officer in the Defense Logistics Agency and the Department of Homeland Security, described the Pentagon change in his ChiefHRO.com blog as “the biggest shakeup in RIF [reduction in force] in decades.”
If that and VA’s new disciplinary procedures prove effective, he added by phone, “I would be very surprised if there is not an effort to expand them to the entire government.”
Max Stier, president and chief executive of the Partnership for Public Service, which focuses on federal employment and management issues, cautioned that the VA approach “won’t deal with the real issues.”
Increased training of managers across government, which the bill does provide for VA, is key, Stier said.
Simply firing feds faster, he added, is not the answer.