Concerns grow over VA’s proposal to put SES MSPB rights up for grabs

The Veterans Affairs Department is considering a proposal that would strip senior agency executives of their rights to appeal to the Merit Systems Protection Board when they face disciplinary action.

The proposal would reclassify VA Senior Executive Service members as Title 38 employees, meaning that if the department secretary chooses to demote or fire that employee, the decision is final. Title 38 employees cannot appeal to MSPB. These employees currently are classified under Title 5, which gives them the ability to appeal.

Deputy VA Secretary Sloan Gibson introduced the idea to the chairman and ranking member of the House Veterans Affairs Committee earlier this week, VA Secretary Bob McDonald said during a Feb. 10 hearing on the department’s budget.

“[It] would give us more flexibility in terms of paying them competitively in the medical community, as well as giving us greater flexibility in disciplining them without all of the things that happen with the Senior Executive Service,” he said. “We have put that proposal forward; we have to do a lot more work on it. It’s just preliminary.”

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A congressional staff member said the House and Senate VA Committees will likely include Gibson’s proposal as part of their discussions on a package of veterans legislation.

The VA’s proposal as it stands now will be a hard sell in Congress, because the Title 38 employee disciplinary process can often take more than 700 days, the staff member said.

McDonald also discussed his proposal with Senate VA committee  chairman Sen. Johnny Isakson (R-Ga.).

“[Senator] Isakson is looking forward to receiving a legislative proposal from the VA to convert SES employees to Title 38 and is encouraged that the Secretary recognizes the need to improve the system of accountability at the VA,” a spokesperson for the committee said in a statement to Federal News Radio.

But a former government executive with knowledge of the VA said the mere thought of this proposal weakens the department’s credibility.

“This is a strategic mistake by the Secretary and the Deputy Secretary, because this proposal basically contradicts the argument they’ve been making for the last number of months,” said the former executive, who requested anonymity. “They’ve been making a good argument, that you can’t fire your way to excellence. If you then create the mechanism in order to make it easier to fire, then people are going to believe what you do, not what you say.”

Critics on Capitol Hill

Congress has long been critical of senior VA leaders, insisting the department hasn’t done enough to dismiss employees in the wake of numerous scandals.

Both McDonald and Gibson have previously stood up their claim: They are holding their employees accountable. At least 2,600 employees have been fired since McDonald assumed his position more than 18 months ago, he told Congress in January.

News of this proposal also will impact morale within the current VA SES workforce, the former government executive said, and it could deter other employees from wanting to join the service in the future.

“Things are difficult as it is in trying to recruit VA executives,” the source said. “The leadership in the department is aligning itself with critics on the Hill to go and make things easier, to go around the MSPB and frankly, fire people. This is probably going to generate a greater exodus of top talent from VA.”

The department already is struggling to attract new talent. Applications for available positions at the VA are down 75 percent, McDonald told the House committee Feb. 10.

Under the proposal, roughly 350 employees would move under Title 38, according to the Senior Executives Association. But the SEA, which described the VA’s ideas as “farcical,” also has its concerns.

“It remains astonishing … that so much time and taxpayer money is spent by Congress and this administration in public grandstanding focused on a few career executives instead of the systemic issues facing VA’s vast infrastructure of funding, people, services and capital,” SEA Interim President Jason Briefel said in a statement.

Strengthening VA’s cases

News of the proposal comes a few days after Gibson launched an investigation on four senior executives at the agency to reconsider possible disciplinary actions. Gibson issued orders to review actions for Diana Rubens and Kimberly Graves, senior employees who were accused of taking advantage of an agency relocation program.

The VA demoted both Rubens and Graves based on its own investigation, but the Merit Systems Protection Board recently overturned the agency’s decision. Both women have since been reinstated.

“We now find ourselves in a situation where both Rubens and Graves have been charged, and those charges have been sustained and there’s been no penalty,” Gibson told reporters Feb. 2. “I do not believe that was the intent of Congress. I don’t believe it’s the right thing for veterans. So I will impose some penalty.”

The MSPB judge ultimately reached its decision because the VA’s punishments for Rubens and Graves were not consistent with the department’s treatment of two other executives who were involved in the same scandal.

But the former government executive said VA leaders now are “bending to criticism on the Hill” and should instead work to strengthen their cases when they face MSPB.

“If the department wants to win at MSPB, it had better go in there with really good evidence,” the former executive said. “The evidence has to be rock solid. And frankly, a lot of the evidence that comes out of the IG’s office there at VA, is not.”

Gibson, who previously criticized the VA Inspector General for taking too long to complete disciplinary investigations, also was skeptical of the IG’s work on this particular case. He told reporters the IG left out evidence and “picked and chose pieces that they put in their report in order to support a conclusion that they wanted to reach.”

Even if the VA’s proposal does pass Congress, the former government executive questioned what it would accomplish for the department.

“You just lost a lot of good will in the department, and then the question is, for what? What did you get in return? The criticism is going to continue,” the source said.

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