House GOP pushes bill to fast-track firing at VA. Agency leaders doubt it’ll help

Top Republicans on the House Veterans Affairs Committee are leading a bill to let the Department of Veterans Affairs once again fire employees more quickly.

Top Republicans on the House Veterans Affairs Committee are leading a bill to let the Department of Veterans Affairs once again fire employees more quickly.

Lawmakers introduced the Restore VA Accountability Act, after the VA announced in April that it is no longer using authorities in the 2017 VA Accountability and Whistleblower Protection Act to fast-track the firing of employees.

VA leaders say the 2017 law didn’t help them fire poor performers, and that federal judges and the Merit Systems Protection Board blocked many of the legislation’s provisions from covering a majority of its workforce.

The latest bill, they warned lawmakers, would probably meet a similar fate.

Committee Chairman Mike Bost (R-Ill.), the bill’s author, said the legislation will help the VA get rid of poor performers and those accused of serious misconduct more quickly.

Bost said his bill would give VA the tools to remove a “small percentage of employees who are hurting veterans, in weeks or months, rather than years.”

“We owe it to the hardworking VA employees and our veterans to hold those at the VA not doing the right thing accountable,” Bost said Wednesday at a legislative hearing held by the oversight and investigations committee.

Rondy Waye, VA’s executive director of human capital programs, told lawmakers that the VA has taken about 39,000 actions against VA employees since fiscal 2016 — nearly 5,000 a year, on average.

Waye said the VA stopped using the 2017 VA Accountability Act and Whistleblower Protection Act to fire, demote or suspend employees after federal judges ruled the legislation didn’t apply to much of the VA workforce.

“We got to a point where it was really not usable for the majority of the workforce,” Waye said, adding that the 2017 law currently only applies to about 75,000 employees — out of a workforce of about 400,000 employees.

Waye said the VA is concerned that if Congress passed the Restore VA Accountability Act, the department would once again spend the next few years defending the legislation before federal judges, but with little success.

Waye’s comments echo those of VA Secretary Denis McDonough, who told reporters that the VA’s use of its Section 714 authority, as provided under the 2017 VA Accountability Act and Whistleblower Protection Act, wasn’t helping the agency effectively manage its workforce.

“To be honest … the exercise of Section 714 wasn’t really helping us necessarily manage our workforce, as much as it was getting us in front of federal judges and in front of administrative bodies,” McDonough said in March. “So we just want to make sure that we’re exercising the authorities that we do have.”

The Restore VA Accountability Act contains many of the same provisions from the 2017 legislation that federal judges rolled back substantially in recent years.

Among its provisions, the Restore VA Accountability Act would set a lower standard of proof for the VA to show before it fires, demotes or suspends an employee. A federal appeals court in 2021 ruled against the VA using this lower standard of proof for adverse personnel decisions.

The bill would also give VA employees a shorter window to appeal adverse personnel actions. It allows employees to appeal removal decisions in federal court, but not the MSPB.

The Partnership for Public Service in a letter to the committee said that provision would “erode and eliminate the role of third party, independent executive review” by the MSPB.

“This approach unnecessarily compromises due process for line employees while reducing accountability for senior executives and political leaders during removal proceedings,” the Partnership wrote.

Bost said it takes the VA too long to fire employees, but Waye said the VA mostly sees a delay in firing employees when the department is building a case for their removal.

“Most of the time that there appears to be a delay in taking action, [it] is on the front end. Typically, when there’s misconduct, we have to conduct an investigation,” Waye said. “The more significant the charges are, the more egregious the case, typically the longer the investigation takes.”

VA leadership, federal employee unions and good-government groups say the bill wouldn’t do much to help the VA fire underperforming employees — but would hurt the department’s ability to recruit and retain employees.

The Senior Executives Association, in a letter to the committee, said the proposed legislation is “completely unnecessary for holding career VA employees accountable.”

“In fact, it is very likely this legislation will have a significant adverse effect on the VA’s ability to attract, recruit, and retain quality supervisors, managers, and executives, as have the 2014 and 2017 laws,” SEA President Marcus Hill wrote in the letter.

The American Federation of Government Employees, in its own letter, said the bill would “counterproductively diminish the due process and collective bargaining rights of VA employees compared to federal employees in other agencies.”

AFGE said the legislation “serves to dissuade potential employees from working at the VA when they could [find] similar, if not identical jobs, with better protections at another agency.”

Don Kettl, a NAPA fellow, professor emeritus and former dean of the University of Maryland School of Public Policy, said the VA’s rate of firing poor performers is probably “significantly higher” than in the private sector, and that the bill would hurt VA hiring at a time when it’s looking to build up its workforce to keep with demand for health care.

“This proposed legislation is, I believe, a serious mistake that would harm the Department of Veterans Affairs and injure the nation’s effort to care for those who have given so much to it,” Kettl wrote.

AFGE said the VA under the 2017 legislation disproportionately targeted lower-paid federal employees.

During a July 2018 House VA Committee hearing, Ranking Member Mark Takano (D-Calif.) said the VA used the VA Accountability and Whistleblower Protection Act to remove more than 1,000 employees earlier that year.

The majority of those removals were housekeeping aides, and only 15 — or about 1% — of the removals were supervisors.

AFGE said the latest bill, if passed, would disincentivize the VA from putting employees on Performance Improvement Plans (PIPs) before moving ahead with disciplinary action.

The union said the VA, under the 2017 legislation, often sought the harshest available punishment, and that the department fired employees for “easily remedied performance failures.”

The bill, if passed, would supersede any collective bargaining agreement, “to the extent that such agreement is inconsistent with such procedures.”

AFGE said that provision undermines the agreement it reached with VA management earlier this year to amend its current collective bargaining contract, which dates back to 2011.

“To say that any procedures that were meticulously negotiated at the bargaining table in this and prior contracts are now out the window is grossly unfair, as both parties compromised to arrive at this agreement given the state of the law at the time,” AFGE wrote.

The National Federation of Federal Employees said the 2017 law, when it lowered the burden of proof for misconduct from a “preponderance of the evidence” to “substantial evidence,” allowed VA management to initiate adverse personnel actions with little evidence of wrongdoing.

“The evidence may show that there is a less than 1% chance that a worker did what they are being disciplined for, yet the act could still be upheld,” NFFE wrote.

The Court of Appeals for the Federal Circuit set a higher bar for the VA to fire employees, after it ruled in April 2021 that VA officials must prove an employee’s alleged misconduct “by a preponderance of the evidence” before it can proceed with disciplinary action or firing.

The MSPB ruled in January that the VA can’t use the 2017 law to expedite the firing of “hybrid” Title 38 employees.

Hybrid Title 38 employees are treated as medical personnel under Title 38 in matters of appointment, advancement and pay issues. However, they fall under Title 5, like much of the federal workforce, when it comes to issues that include performance appraisal, leave, hours of duty and adverse actions.

SEA said Congress should adhere to past rulings, and listen to what VA leaders say they need to hold its workforce accountable.

“While it may be frustrating to some members of Congress that the courts have acted, it is equally important for Congress to respect the rule of law and learn lessons from these episodes,” Hill wrote.

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