The Washington Post

New VA law does good, but gratuitously hits civil service rights

Columnist

In many ways, the veterans-reform legislation President Obama signed Thursday represents the way government should work — with one egregious exception.

The widely praised and broadly supported measure will help set right a seriously misguided Department of Veterans Affairs. Its reputation has been corrupted by a scandal involving the coverup of long wait times for health care.

Joe Davidson writes the Federal Diary, a column about federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns. View Archive

VA will be able to hire more health-care providers and increase health-care facilities. Care for sexual assault victims should improve, and some vets will get a “Veterans Choice Card” allowing them to receive care outside of VA facilities, at the agency’s expense.

Noting the bill “was passed overwhelmingly, with bipartisan majorities — and that doesn’t happen often in Congress,” Obama said: “It’s a good deal.”

But not for everyone.

The many good points in the law could stand strong without the gratuitous and punitive hit on the civil service rights of Senior Executive Service (SES) members in the department. The law singles them out for vindictive action by seriously eroding the appeal rights of senior executives that VA wants to fire or demote. VA SES members now have just one week to appeal those actions, and Merit Systems Protection Board (MSPB) administrative judges must act on appeals within 21 days. The decision of an administrative judge “shall be final and shall not be subject to any further appeal,” the law says. If a ruling is not made within 21 days, the department’s action is final. In many cases, the one-week deadline will be too short for employees to construct a meaningful appeal.

Those timelines make appeals “a sham,” as Carol Bonosaro, president of the Senior Executives Association succinctly described it. Currently, the entire process can take a year to complete. That’s too long, but this law is no cure.

“Characterizing this as due process requires a significant stretch of one’s imagination and is an insult to the term,” Bonosaro said.

Congress also undercut the power and authority of presidential MSPB appointees — a point that could be the basis of a legal challenge. Board members generally hear appeals of decisions made by administrative judges. VA SES members no longer have that option, which means the board members are locked out of those cases.

The three-member MSPB is a bipartisan board. In a letter to Obama, it complained about this provision, saying it “could set a very dangerous precedent, under which it is viewed permissible for Congress to undermine” presidential appointees.

Keep in mind that civil servants have appeal rights generally not provided by the private sector for a good reason — to keep political favoritism out of government. Feds can be fired and demoted, but their appeals process protects all of us from a spoils system that runs agencies for the benefit of political cronies.

Yet, Obama, speaking at the bill’s Fort Belvoir signing ceremony, praised the due process hit, saying: “We’ve got to give Bob [new VA Secretary Robert A. McDonald] the authority so that he can move quickly to remove senior executives who fail to meet the standards of conduct and competence that the American people demand. If you engage in an unethical practice, if you cover up a serious problem, you should be fired. Period. It shouldn’t be that difficult.”

Yes, those who cooked the books, or caused them to be, should be disciplined, fired, even prosecuted if warranted. And a difficult, drawn-out appeals process cries out for well-considered reform that does not single out a group of employees.

Piecemeal, retaliatory legislation is not the way to build a better, more responsible workforce.

The SES provisions are an overreaction by Congress to VA deceivers. Employees falsified records in an attempt to meet unrealistic productivity goals imposed by management. The law now prohibits VA from basing performance awards or bonuses on scheduling and wait-time measures. Metrics are not necessarily bad. It is how they are used — or misused — that counts.

Curiously, the law says nothing about protecting agency whistleblowers. Whistleblowers exposed this scandal. But instead of praise from management, VA has treated whistleblowers shamefully. Those who have punished whistleblowers should be facing punishment — after due process, of course.

“As the nation moves into the next phase of VA reform, we must not forget the bravery of front-line employee whistleblowers who risked their careers to speak out for our heroes,” said Alma Lee, president of the American Federation of Government Employees National VA Council.

The AFGE statement praised the legislation but said nothing of the cut to employee rights. AFGE represents most VA employees but not SES staffers. But if union leaders don’t stand up for the rights of all workers, they should not be surprised when the next ax falls on their members.

“If it is the VA today, which agency is next?” asked Susan Tsui Grundmann, MSPB’s chairwoman. “If it’s the SESers today, can it be the GS-15s [General Schedule] tomorrow?”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Comments
Show Comments
The New Hampshire primary is today. Get caught up on the race.
What to expect in the New Hampshire primary
The Post's Philip Bump says ...
Since he proclaimed that he'd win New Hampshire last summer, Bernie Sanders has seen a swing of about 50 points in his direction. Impressive. But not as impressive as the guy on the other side of the political aisle. Donald Trump has led the Republican field in New Hampshire for almost 200 days, and has held a lead in 51 straight live-caller polls -- every poll stretching back to last July.
The feminist appeal may not be working for Clinton
In New Hampshire, Sen. Bernie Sanders is beating Clinton among women by eight percentage points, according to a new CNN-WMUR survey. This represents a big shift from the results last week in the Iowa caucuses, where Clinton won women by 11 points.
New Hampshire polling averages
Donald Trump holds a commanding lead in the state.
New Hampshire polling averages
A victory in New Hampshire revitalized Hillary Clinton's demoralized campaign in 2008. But this time, she's trailing Bernie Sanders, from neighboring Vermont.
56% 41%
Upcoming debates
Feb. 11: Democratic debate

on PBS, in Wisconsin

Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

Campaign 2016
State of the race

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.