Legislation in the Senate would allow the Veterans Affairs secretary to dismiss members of the Senior Executive Service on the grounds of performance, and that could mean more appeal cases for the already-swamped Merit Systems Protection Board.
“Currently, an agency can only remove an SESer for conduct and disciplinary reasons,” MSPB Chairman Susan Tsui Grundmann said on the Federal Drive with Tom Temin and Emily Kopp. In light of the ongoing scandal at the VA, lawmakers in the House and Senate are looking to change the rules. Both bills in Congress would authorize the secretary to fire SESers based on performance.
“The Senate version has an expedited appeal to the MSPB. We have to conduct that adjudication within 21 days,” Grundmann said. “If we can’t do it within 21 days, [we have to] report to the Congress why we can’t do it in 21 days.”
The potential for a number of appeal cases, along with the short time period, raises concerns for the board.
The small agency is already overwhelmed by 32,000 furlough appeal cases from last year’s sequestration cuts. MSPB typically only receives between 5,000 and 6,000 cases per year.
“It has been an insane 19 months,” Grundmann said. “We’re doing everything we possibly can to uphold our statutory function.”
The Senate version recognizes the MSPB’s workload and asks the agency to submit a report on resources it needs.
“Within the first 30 days after the law goes into effect, we have to submit a report on actions that we plan to take to conduct that expedited review, and what resources we currently don’t have that we would need to expedite that review,” Grundmann said.
She said the board is unsure what it would need to conduct the appeal cases.
“A lot of it depends on how many people come to us. Clearly, we will have some sort process in place once the law passes,” Grundmann said. “The conversation needs to occur now, and it is occurring now within the agency.”
Under the current law, an agency can demote — but not fire — an SESer for poor performance. The executive must go through a “pre-demotion process,” Grundmann said. “It’s notice, 30 days opportunity to respond and an answer in writing from the agency.”
Unlike the Senate bill, which amends the pre-demotion process, the House bill would remove all appeal rights for fired SESers.
“We know that the Supreme Court has stated that public employees, like federal employees, have a property interest in continued employment. That interest is accompanied by certain due process rights,” Grundmann said. “I won’t be surprised if this issue is raised when it’s litigated.”