The Washington PostDemocracy Dies in Darkness

Top VA posts need filling as nominee fights refuted allegations

Ray Jefferson in Singapore on Sept. 21, 2020. (Ore Huiying for The Washington Post)

It’s a bad time for the Department of Veterans Affairs (VA) to be without top leadership.

A major expansion of benefits, known as the PACT Act, for veterans exposed to toxic materials and burn pits, is close to becoming law. At the same time, a bipartisan group of senators has blocked VA Secretary Denis McDonough’s proposed Asset and Infrastructure Review (AIR) Commission that would have built dozens of new health-care facilities, while closing others.

Department leaders are critical to implementation of what Senate Veterans’ Affairs Committee leaders called “the most comprehensive toxic exposure package the Senate has ever delivered to veterans in this country’s history,” and to developing a different way to modernize the department’s infrastructure.

But the Senate has yet to confirm President Biden’s nominees for two crucial but long vacant positions — undersecretary for health and undersecretary for benefits — that are essential to guiding the department as it navigates these new developments. The benefits vacancy now seems hopeless, without Senate support for its well-qualified nominee, Ray Jefferson, who fought the ghost of refuted allegations.

Filling both positions is “extremely important,” said Ralph Bozella, chairman of the American Legion’s Veterans Affairs & Rehabilitation Commission.

“There’s a lot out there that needs attention,” Bozella said after listing a variety of issues confronting veterans. “And without undersecretaries to really shepherd these processes and be the person who’s held responsible under the secretary, this work is not being done in a timely fashion.”

The health slot has not had a confirmed undersecretary for more than five years. After the Senate Committee on Veterans’ Affairs unanimously advanced Shereef Elnahal to head the Veterans Health Administration two months ago, chairman Jon Tester (D-Mont.) pushed for expedited full Senate approval. That was stopped by Sen. Rick Scott (R-Fla.), but Elnahal’s nomination probably will be voted on later.

“I sure hope he gets done quick, fast, and in a hurry,” VA Secretary Denis McDonough said at a news conference. “Because we need him badly.”

Meanwhile, the undersecretary for benefits position, already empty for 18 months, could remain so for a long time despite the nomination of a highly praised, disabled veteran who is eager to serve his country again.

Jefferson’s nomination to lead the Veterans Benefits Administration has been unfairly doomed, by old, procurement-related allegations that repeatedly were found to be “unsubstantiated.”

Jefferson, a U.S. Military Academy graduate, was the Labor Department’s assistant secretary for the Veterans’ Employment and Training Service (VETS) when he was forced to resign in 2011 over charges that he steered federal contracts to associates.

After eight depressing, devastating years, and exhausting his life savings on legal fees and a lawsuit against the government, Jefferson finally cleared his name in 2019 when Labor’s Office of Inspector General essentially said “oops” and reversed its earlier findings against him. In a letter to Jefferson, the office listed the four charges against him and said “this allegation is not substantiated” to each.

At the same time, a Labor Department letter to Jefferson said agency officials relied on the earlier, now-debunked inspector general report when they pushed him out of office. When the inspector general overturned its position, department officials declared “none of the allegations against you were substantiated.” Furthermore, the letter said if department officials had more complete information in 2011, “DOL would not have made its … request for your resignation.”

It is extremely rare for an inspector general to reverse a finding.

“The way we were able to do it is by proving innocence,” said Peter C. Choharis, Jefferson’s lawyer, in a phone interview. Agency officials would not have agreed to settle the lawsuit, Choharis added, with “anything short of that.”

But innocence is not enough for the senators.

During the confirmation hearing, Republicans cast doubt on Jefferson’s innocence, despite Labor’s reversal of the findings against him. During the confirmation hearing, the top Republican on the committee, Sen. Jerry Moran (Kan.), disagreed with Jefferson’s statement that the charges against him were found to be baseless and without merit, saying, “I think there’s a difference between baseless and without merit, and unsubstantiated.”

But that’s a distinction without a difference, as Jefferson’s former lawyer, Choharis, pointed out in a letter to Tester and Moran.

“While ‘unsubstantiated’ does not mean innocent as a technical matter,” Choharis wrote, “that is because all that any Office of Inspector General is empowered to do is find that an allegation is substantiated or unsubstantiated — just as a jury can only find a defendant guilty or not guilty. Juries cannot and do not find someone innocent.”

Furthermore, as Jefferson told his hearing, “I have been cleared of these allegations by a federal court of law.”

But to clear Jefferson’s name, Labor and Justice Department officials “all made clear that Ray would have to prove his innocence,” Choharis said. “In fact, I had to prove Ray’s innocence at three different stages of settlement negotiations involving five different constituencies” within the two departments.

Not only innocent, but “exceptional,” Robert A. McDonald, a VA secretary during the Obama administration, said in a letter to committee leaders.

“Ray is a leader of the highest integrity, moral courage, trustworthiness and reliability who exemplifies servant leadership,” McDonald wrote, calling Jefferson “a man of honor.”

He demonstrated that in 1995, when Jefferson, then a 29-year-old Army captain, grabbed a hand grenade before it blew up during Special Forces training. Jefferson lost all five fingers on his left hand while protecting his comrades.

With Republicans lined up against Jefferson’s nomination, he would need unanimous support from Democrats to advance from the evenly divided committee. All committee members’ offices were contacted for this column, but none, not even Tester, came to Jefferson’s defense. Neither did the White House, which declined to comment.

For Jefferson’s nomination, the silence is deadly.

Choharis, his former attorney, summed up Jefferson’s pessimistic fate. Referring to Jefferson’s previous and present unwarranted difficulties with the government he still wants so badly to serve, Choharis said: “I fear that this fundamental lack of due process is being repeated.”