It sounds so dry and legalistic. Veterans Affairs Secretary Bob McDonald wants to move senior people into Title 38 jobs classifications. The move is no technicality. It could signal the dissolution of long-standing legal protections for federal employees.

Title 38 has traditionally been reserved for licensed medical professionals working in VA. They can’t appeal adverse personnel actions to the Merit Systems Protection Board, like people under Title 5 of the U.S. Code. That includes most federal employees.

Title 38 dates back to 1946, when literally millions of veterans from World War II were seeking treatment. The MSPB is a creature of civil service reform in 1978, under the Carter Administration. Now, because of differing views by VA and on the MSPB on how the law should be interpreted, VA is in effect saying, the heck with it. Let’s just put senior executives under Title 38. The differences go deeper than whether the MSPB is available. Hiring competition, determination of qualifications and pay flexibility are all vastly different under Title 38.

Congress did a half-a-buttocks change in rules for VA SESers with its Choice Act in 2014. SES cases can go to MSPB, but only to judges with no appeal to the board itself. In their wisdom, judges overturned adverse actions in three embarrassing cases.  So now, as Nicole Ogrysko is reporting, VA is running to Congress to stretch Title 38 to cover its own executives.

McDonald says this idea was in the works long before he and Deputy Secretary Sloan Gibson ran into the MSPB buzzsaw. Gibson says he saw this coming when the Choice Act passed. Ironically, MSPB Chairman Susan Tsui Grundmann, in my interview with her, says she too anticipated that the cutoff of appeals to the board imposed by the Choice Act would frustrate both employees and management. Indeed it has.

Last week I quoted  Lynne Bernabei, a lawyer experienced in federal employment and dispute matters, as saying this is war between MSPB and Congress. But it looks like war between VA and its own senior executives.

My question is, do VA’s top leaders really think their management issues will be solved by whisking high-level career managers out from under protections enjoyed by similarly ranked people everywhere else in government? Maybe VA’s processes for evaluating, reviewing and sanctioning people are so messed up that leadership ends up living the legend that you can’t do anything about federal employees no matter how badly they perform.

In solving problems, you have to isolate the variables. It’s hard to tell whether there’s something uniquely wrong with SESers at VA, or if whether flaws riddle VA management systems.

Senior executives in other agencies should be alarmed at this development. If you change the rules as an expediency for one department, then no one can maintain confident faith in the government’s personnel system.

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