MSPB vs Congress: It’s war!

Veterans Affairs Secretary Bob McDonald frequently recounts how many people VA has fired in the last couple of years, as if that’s the answer to the department’s many problems. Some people do need to go. But you don’t get to excellence on scalps alone.

And even when firing who you think is the most perfidious employee ever, to borrow from the Mayor of Munchkin City, you’ve got to do it LEE-gally.

McDonald is egged on by Congress, members of which want scalps. That’s partly because they feel VA has not been tough enough on poor performers. And partly because public executions make good theater. More than egging on, though, Congress passed and the president signed a bill that narrows the appeals possibilities of senior executives, and it narrows the discretion of the Merit Systems Protection Board to give out punishments lesser than firing. Critics worry this law is the leading edge of a wedge that could split apart decades of case law in Title 5 job protections for federal employees. As it is, the law created a dual system — one for VA and one for everybody else.

In the latest episode, as reported by our Nicole Ogrysko, MSPB has reversed a third high-profile firing by VA. Attorney Lynne Bernabei, who has defended many whistleblowers and other aggrieved federal employees, believes MSPB is signaling to Congress it doesn’t like the curtailment of employee civil rights. Now VA is getting up on its hind legs. Deputy Secretary Sloan Gibson is openly defying the order to reinstate former Albany VA medical center Linda Weiss. It’s starting to look like a prison food fight.

Earlier, MSPB overruled the demotions of Kimberly Graves and Diana Rubens, VA executives who had been accused of misusing their positions to displace people whose jobs they wanted. Now VA execs have to start over, if they have the stomach, in dealing with Graves and Rubens. The back-and-forth prompted MSPB to post a message saying it has been following the same burdens of proof in these cases as it always has — something the VA reform bill did not change.

Bernabei says that in her long career, she’s never seen anything like this. She says it’s almost as if MSBP is waging war against Congress, with VA as the battleground. Knowing MSPB chairman Susan Tsui Grundmann, I would say not war but clearly, even pointedly, delineating to Congress what the legislature has done here. Grundmann, whose term appointment expires next month, knows her law. She’s shrewd, direct, and protective of the agency’s independence and mission. But she’s also careful about congressional relations and acknowledging Congress’ prerogatives — regardless of how carelessly (my word) our friends on the Hill exercise them.

What’s going on does look like a low intensity war. In reality it’s the natural, but not heretofore recognized, outgrowth of a law conceived with, charitably, noble intentions. But one that wasn’t sufficiently thought out. It’s an old story between new cover sheets.

So now VA has a situation in which it must carefully calibrate how it deals with incompetents and careerists. Its managers must follow HR and performance tracking rules to the letter. It must exercise care in deciding how to deal with such people, knowing that even demotion carries the risk of reversal under the limited appeals still available to people. Come to think of it, that would be a good way to proceed even if Congress was to reverse the offending law.

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