MSPB reverses punishment for third VA senior executive

For the third time in nearly a month, the Merit Systems Protection Board reversed punishment for a senior executive at the Veterans Affairs Department.

The board agreed that Linda Weiss, former director of the Albany, New York Stratton Veterans Administration Medical Center, should have done more and acted more quickly to discipline a nurse who received complaints for treating patients poorly. But the VA’s decision to fire Weiss was too harsh, MSPB said, considering the evidence and the circumstances.

“The agency proved that the appellant should have done more, but the appellant proved that her actions were not as egregious as the agency suggests,” MSPB Administrative Judge Arthur Joseph, wrote in his final decision, which was released Feb. 16.

If he could, Joseph said he would suggest a less severe punishment, but a provision in the 2014 Veterans Access, Choice and Accountability (Choice) Act doesn’t allow it. Instead, he must completely overturn Weiss’ removal.

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“While the agency may rightfully expect someone in the appellant’s senior position to take further precautionary measures under the circumstances, the fact remains that she did immediately act in a way that remedied the problem, permanently, with no resulting harm,” Joseph wrote. “… I find that the facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense.”

VA Deputy Secretary Sloan Gibson disagreed with the decision and said the judge was late with his ruling.

“Today’s decision, which states the judge’s reasoning for the earlier decision, is not only wrong for veterans, but also fails to meet the 21-day time limit for appeals decisions mandated by the Senior Executive accountability provision of the Choice Act,” he said in a statement. “We believe today’s untimely decision is unenforceable under the law, and does not entitle Ms. Weiss to return to VA employment.”

Some members of Congress are also growing frustrated with the rulings.

MSPB recently overturned demotions for two other senior executives. A judge ruled that the VA’s punishments for Kimberly Graves and Diana Rubens, who were accused of taking advantage of an agency relocation program, were not consistent with its treatment of two other executives involved.

House VA Committee Chairman Jeff Miller (R-Fla.) took aim at MSPB, calling it an “unaccountable board with a strong bias against accountability.”

“The MSPB forces agency leaders to wastefully accommodate employees they have no confidence in by either keeping them on the payroll or in leadership positions, or paying them vast sums of taxpayer money to leave government employment,” Miller said in a statement. “The MSPB is so biased in favor of misbehaving government bureaucrats that its rulings have actually prevented more disciplinary actions under the Veterans Access, Choice and Accountability Act than they have upheld.”

MSPB called recent claims “baseless and unfair” and reminded its critics that it must consider and apply burdens of proof when it considers a personnel case, as described in Title 5 of the U.S. Code. The 2014 Choice Act, which lets the deputy VA secretary determine when and how the agency punishes a senior executive, doesn’t change what the employee must prove, MSPB said.

“The 2014 Act did not change any statutory burden of proof to be applied in these appeals,” the agency said in a Feb. 11 statement on its website. “Therefore, unless the law is changed, these statutory burdens of proof continue to apply, as they do in all other appeals filed at MSPB.”

Senior leaders within the VA recently indicated they wanted to see aspects of the 2014 law changed — and went to Congress for help.

Gibson introduced a proposal before leaders in the House and Senate VA committees last week. Under his proposal, senior executives in the VA would lose their Title 5 classification, which currently gives them the right to appeal to MSPB if they face punishment or demotion. Instead, SESers in the VA would become Title 38 employees — and subsequently lose those appeal rights.

Miller said he and members of the Senate VA committee are working on the proposal, and he commended Gibson and VA Secretary Bob McDonald for their idea.

“If their proposal has any chance of getting through Congress, it needs to be strengthened,” Miller said. “Negotiations with the Senate on this and other issues are ongoing, but when it comes to accountability, we need to create a system that allows VA’s most senior leaders to swiftly fire and discipline employees for cause, without being second guessed by biased bureaucrats who favor misbehaving government employees over taxpayers and veterans.”

Attorney Michael Kator, chair of the federal court and appellate practice at Kator, Parks, Weiser & Harris, said it’s often more difficult to determine a punishment for an executive who mismanaged a multimillion-dollar program, rather than someone who actively broke a specific law.

“There’s been a lot of public frustration with what’s going on at the VA,” he said. “Congress decided to address that and truncate [the VA’s] process to make it easier for them to discipline these senior executives. It’s really a misdirection, and the results of these cases are showing it.”

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