Senators ask for IG review of VA’s implementation of accountability act

Stories from employees at the Veterans Affairs Department and growing frustration over the agency’s reports to Congress are prompting a small group of senators to ask for oversight help in evaluating VA’s implementation of the Accountability and Whistleblower Protection Act.

Senate Veterans Affairs Committee Ranking Member Jon Tester (D-Mont.), along with Sens. Richard Blumenthal (D-Conn.), Tammy Baldwin (D-Wis.) and Sherrod Brown (D-Ohio),  have asked the VA inspector general to review the department’s implementation of the accountability act.

“We have had numerous VA employees and their representatives contact our offices about the law’s implementation, indicating that the authorities provided by the law are being used in an inconsistent and inappropriate manner,” senators wrote in a June 15 letter to VA Inspector General Michael Missal. “Unfortunately, VA still has not been able to provide us with data that would alleviate our concerns or demonstrate in any way that application of these authorities has been consistent, fair and appropriate.”

The four senators were among the lawmakers who had originally questioned VA in February about its implementation of the accountability act.

The senators had described instances where managers attempted to remove employees for missing a deadline or moving slowly after a workplace injury. As Federal News Radio previously reported, employees at the Veterans Benefits Administration have said the agency’s new performance management guidance doesn’t given them enough time to improve, and they fear punishment from their managers after one mistake.

VA updated its performance management guidance last summer to reflect statutory changes under the new accountability act. The guidance eliminated defined deadlines that VA employees previously had to improve their performance.

In response to the senators Feb. 26 letter to the department, acting VA Secretary Peter O’Rourke described and clarified the department’s performance management guidance.

“This statutory requirement does not eliminate the expectation that supervisors will communicate with an employee about performance expectations and concerns about the employee’s performances,” O’Rourke said in a June 1 letter, which Federal News Radio obtained.

Not only does VA’s approach to performance management comply with the statutory changes the accountability act created, but it also adheres to the mandate the Office of Management and Budget gave last year in its government reorganization guidance, O’Rourke said.

In the president’s recent executive order on employee accountability, the White House directed agencies to standardize the length of an employee performance improvement plan (PIP) to 30 days. Currently, some agencies give their employees anywhere from 30 to 120 days to demonstrate their level of performance.

The senators in February also questioned whether VA managers still used  progressive discipline or a table of penalties to address employee misconduct or poor performance after first or second offenses.

“Those tools are still available for a proposing and deciding official to consider, but they are no longer required,” O’Rourke wrote. “Supervisors still need to thoroughly consider the level of penalty, and the written guidance mandates that penalties are to be reasonable, as determined by the proposing and deciding officials versus the Merit Systems Protection Board and its judges, and commensurate with the facts of the case.”

Since the president signed the accountability act into law last June, VA has issued more than 1,500 admonishments, 1,600 reprimands and 1,400 suspensions of 14 days or less, O’Rourke said.

The department fired 912 VA employees during the first five months of 2018, according to the latest accountability report, dated June 7. VA demoted 36 employees and suspended 26 for 14 days or longer.

The department publicly posts these accountability actions on its website. VA temporarily stopped publishing reports this spring while it transitioned to a new human resources data tracking system.

It was this system, called HR SMART, that VA said prevented it from fully complying with the congressional reporting requirements included in the accountability act.

The law required VA to submit a detailed report on the average time it took to initiate and resolve an adverse action, the number of steps involved in that disciplinary process, the number of appeals employees filed in response to a disciplinary action and the results of those appeals.

VA delivered the report two months later than the Dec. 31, 2017 deadline, and the department’s three-page report lacked nearly all of the details Congress requested.  VA said it couldn’t meet the December deadline because it used an ad-hoc data tracking system, and the department had to manually collect data from HR offices across the country.

VA is now using HR SMART to track employee suspensions, demotions and removals. The system can’t yet track admonishments or reprimands, said VA Spokesman Curt Cashour.

“VA is working to develop requirements for a capability that could allow the department to track all accountability actions —  to include admonishments and reprimands — as well as the time between the offense that necessitated consideration of discipline and final action,” Cashour wrote in an email to Federal News Radio.

But to date, the Senate committee said it hasn’t received the information it requested.

In its O’Rourke’s response to the senators, VA estimated it would take about 7,000 staff hours to assemble the data they requested in the accountability law.

“If [the department] had started procuring data when the bill was signed into law, it likely would have been done months ago,” Marnee Banks, a spokeswoman for Tester, said in an email. “The lack of transparency from the VA on this front is troubling, and the committee is working in a bipartisan manner to hold the VA accountable to implement the bill as Congress intended.”

In addition, the department still lacks a permanent assistant secretary for accountability and whistleblower protection, the position tasked to lead VA’s implementation of the law. O’Rourke had served in that position until he became acting VA secretary last month.

VA sent candidates for the accountability post to the White House for consideration and expects a nominee soon, O’Rourke said.

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