Senators Lambaste Agency for Reversing VA’s Decision to Punish Senior Executives

Four Republican senators are blasting the small, independent agency that adjudicates appeals from fired federal employees for rejecting the Veterans Affairs Department’s recent decisions to remove and demote senior executives accused of wrongdoing.

“On behalf of our nation’s veterans who deserve better, we request analysis of the principles, laws, and regulations guiding the MSPB decision-making process in these cases,” said a March 2 letter to Merit Systems Protection Board Chairman Susan Tsui Grundmann from Sens. John McCain and Floyd Flake of Arizona; Sen. Ron Johnson of Wisconsin; and Sen. Jerry Moran of Kansas. “Furthermore, we request details as to what steps the MSPB is taking to ensure that these types of incidents do not happen again.”

The letter specifically referenced the MSPB’s recent decisions to reverse the VA’s demotions of senior executives Diana Rubens and Kimberly Graves, whom the department has reinstated to their jobs as director of the Veterans Benefits Administration’s Philadelphia office, and director of VBA’s St. Paul, Minn., regional office, respectively.

The MSPB, in separate cases, agreed that Rubens and Graves showed poor judgment and created an appearance of impropriety by not recusing themselves from discussions over job reassignments that they both personally gained from. But they reversed VA Deputy Secretary Sloan Gibson’s decision to remove Rubens and Graves from the Senior Executive Service at a significant pay cut, ruling that it was unfair because others involved in the job reassignments, including Danny Pummill, acting undersecretary for benefits, and Beth McCoy, deputy undersecretary for field operations, were not disciplined. 

In a press release accompanying the letter, the senators said Rubens and Graves “manipulated the agency’s job transfer policy to create new jobs that were not needed so they could collect relocation bonuses they did not earn or deserve.” But MSPB concluded that the two did not manipulate the process for their own financial gain, and were eligible for the relocation incentives they received as a result of the job reassignments. And, just a few months after demoting them, Gibson said he was confident in the leadership abilities of Rubens and Graves.

The letter also referenced the MSPB’s role in adjudicating the appeal of Sharon Helman, the former senior executive who ran the VA’s Phoenix health care system – the epicenter of the scandal over falsifying wait lists for veterans’ medical appointments that erupted in 2014. The VA fired Helman in November 2014 under its new expedited authority, arguing that her lack of oversight contributed to the falsification of the waiting lists. The agency also claimed Helman ignored the situation when she became aware of it, failed to notify senior leadership about the issue, and retaliated against department whistleblowers.

Helman appealed her removal to the MSPB, which upheld her firing but not because of misconduct related to the wait times, or whistleblower retaliation, but because she improperly accepted thousands of dollars in gifts from a lobbyist, and failed to honestly report them to the government. This week, Helman pleaded guilty to lying on her government financial disclosure form about the gifts, receiving probation with no prison time as part of a plea deal. Separately, she is challenging her removal under the 2014 Choice Act in the U.S. Court of Appeals for the Federal Circuit, arguing that the law, which VA used to fire her, violated her due process rights. In another case adjudicated in February, MSPB overturned the removal of Linda Weiss as director of the Albany Stratton VA Medical Center in upstate New York.

Lawmakers and VA officials criticized the MSPB after the Weiss decision – the third reversal of the department’s personnel decisions in less than a month. In an unusual move, the MSPB defended its decision-making after issuing the Weiss decision. “In response to these rulings, some have suggested that MSPB is protecting poor-performing employees at the Veterans Affairs Department,” a statement on the agency’s website said. “These suggestions are baseless and unfair.” 

Grundmann said in a February interview with Government Executive that some of the public comments made about the MSPB’s role in adjudicating those appeals were “disappointing” and “vitriolic,” adding that “MSPB judges do not put veterans’ lives at risk.” The MSPB sides with the agency in about roughly 90 percent of the cases that it receives from employees who appeal adverse personnel decisions against them.

Part of the rationale in the judges’ recent VA decisions stems from the interpretation of the 2014 Choice Act, which the VA used to punish Rubens, Graves and Weiss. In each of the three cases, the judges said the department’s punishment was too harsh, and that they would have imposed a lighter penalty if they were able to under the 2014 law. Because the 2014 law prohibits any “mitigation” of the department’s punishment, the judges ruled that their only option was to reverse the department’s personnel decisions. In other cases not involving the 2014 law, MSPB judges are able, at their discretion, to hand down a less severe punishment for appellants than the department has meted out.

The senators’ said that the MSPB’s decisions in the three cases “will discourage the reporting of misconduct in the future and prevent any faith that VA employees are accountable for wrongdoing moving forward." The Republicans took it a step further, claiming that by overturning the VA’s disciplinary actions against the senior executives, the agency “is violating the merit system principles for the federal government listed in 5 USC 2301. Specifically the law requires that ‘All employees should maintain high standards of integrity, conduct, and concern for the public interest’ and that ‘inadequate performance should be corrected.’ This clearly did not occur at the MSPB with respect to these two cases.” (It’s actually three cases, since two different MSPB judges ruled separately on the matter of Rubens and Graves.)        

The MSPB said it is reviewing the senators’ letter, and will respond formally, likely next week. The senators asked for a response by March 11 “as Congress will soon be examining necessary reforms based on MSPB’s recent decisions preventing accountability at the VA.”

VA Secretary Bob McDonald and Gibson recently met with congressional VA committee leadership to discuss moving the department’s SES corps from Title 5 to Title 38 of the U.S. Code. McDonald and his top deputies have said that doing so will give them more authority to expedite hiring and offer higher pay to better compete with the private sector for top talent.

But it would also give them more leeway when it comes to firing top career officials accused of wrongdoing. If senior executives are taken out of Title 5 and moved into Title 38 under the VA’s proposal, they would lose their rights to appeal disciplinary actions against them, such as removal, to MSPB. Instead, their appeals would be handled internally at the VA.