This story was updated with comments from Helman’s lawyers at 1:30 p.m., on Dec. 24, 2014.
The Veterans Affairs Department was right to fire the head of the Phoenix VA health center, a Merit Systems Protection Board judge has ruled in a case seen as a test of a new law that makes it easier for the department to remove career senior executives.
But in a surprising twist, Chief Administrative Judge Stephen Mish said the department failed to connect Sharon Helman directly with a scandal over patient care. Rather, the department was only justified in firing her for accepting illegal personal gifts and failing to report them, Mish wrote.
VA said Helman had accepted more than $13,000 in gifts from a representative of a company seeking work with clinics under her supervision. Those gifts included a trip to Disneyland, plane tickets, entry fees for a marathon and tickets to a Beyonce concert.
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The Phoenix facility has been at the eye of the nationwide scandal that led to the resignation of then-Secretary Eric Shinseki earlier this year. Helman became the center’s director in February 2012. Eight months later, the VA inspector general found that 2,500 veterans were waiting for medical appointments in October 2012. Schedulers failed to put their names on an electronic wait list. Some of the center’s own employees said the mismanagement led to patient deaths, a claim the VA inspector general has refuted.
The VA did not prove that Helman played a direct role in those failures. After all, she wasn’t doing data entry, Mish wrote.
“An agency must connect the dots of fault from the identified failure by the subordinates back up the line to the manager. The agency did not attempt to do so here,” Mish wrote in his decision rejecting the charge of misconduct.
Nor did the agency succeed in proving Helman punished whistleblowers who reported problems with patient care, Mish wrote. He credited the agency for proving a relatively minor allegation, that Helman had created “the possible perception of retaliation” against Dr. Katherine Mitchell, then the head of the emergency department.
Helman’s lawyers at Shaw, Bransford & Roth sought to portray the ruling as proof that the VA had scapegoated Helman for political purposes and without sufficient evidence, noting that the agency never interviewed Helman to get her side of the story despite her requests to speak with officials.
“By removing Ms. Helman from her position and from the federal civil service, the VA hoped the American public would accept its preferred storyline (that blames the career workforce out in the field for hiding Veterans’ access problems) and stop asking questions,” the firm said in a statement. “But the MPSB’s decision sets the story straight. Sharon Helman did not kill veterans. Sharon Helman did not manipulate wait time data. The VA’s preferred storyline has been proven a fabrication, of which the VA was aware the entire time.”
It’s unclear when or how the VA knew that Helman had accepted gifts from the business consultant. It could have been a coincidence, or the agency could have launched an investigation into Helman’s record when it realized it lacked sufficient evidence on the other charges, said former government lawyer Cheri Cannon, who now practices employment law at the firm Tully Rinckey.
“If they had not had a person with clear ethical lapses in another part of her job as a [Senior Executive Service member], I believe they would not have succeeded in firing her,” she said.
The VA appointed five lawyers to Helman’s case rather than the one or two typically assigned to personnel issues, Cannon noted. And yet, she said, Mish faulted the VA for failing to present hard evidence. In one instance, Mish accused the agency of making “misrepresentations.”
“What this is saying is that there is no evidence that ties this woman to known deficiencies in management there,” Cannon said.
In her argument, Helman also took issue with aspects of the new law, saying it violated her due-process rights because it gave her little time to prepare and file an appeal before the MSPB. The law requires the MSPB to decide SES cases within 21 days.
Mish declined to rule on those aspects, saying he did not have the authority to weigh the constitutionality of the law.
Helman’s lawyer, Debra Roth, who also hosts FEDTalk on Federal News Radio, refused to say whether or not she would file an appeal in U.S. District Court on constitutional grounds.
If she does not, Mish’s ruling is final. Under the new law, SES members like Helman cannot appeal an administrative judge’s decision to the three-person MSPB board.
The law is ripe for a constitutional challenge, Cannon said, calling it “unconstitutional in a variety of ways.”
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But, she said, Helman may not be the best plaintiff to raise that challenge.
“She’s got what we call ‘unclean hands,'” Cannon said.
Mitchell, who still works for the VA in a different capacity, said she was thankful that Helman was not returning to work. But she called the decision “disheartening.”
“When I read the judge’s report, what struck me was that the VA did a very poor job in proving its case against Ms Helman,” Mitchell said. “If not for the fact that there’s obvious documentation of inappropriately received gifts, the VA would’ve lost its case. There are literally hundreds of employees in line for discipline because of inappropriate conduct related to the patient care scandal.”
“I don’t see [VA] putting effort into proving misconduct for all the other employees,” she added. “I’m just frustrated with the whole thing. The only reason why VA is addressing patient care issues is because they hit the news.”
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