White House Won't Veto Bill Making It Easier to Fire All VA Workers

This story has been updated with additional comment.

The White House called provisions in a House bill that would make it easier to fire and demote all employees at the Veterans Affairs Department “misguided and burdensome” but stopped short of saying President Obama should veto the legislation if it reaches him.

The House on Tuesday begins consideration of a major accountability bill aimed at the VA workforce, with a final vote planned later this week. The legislation would change the disciplinary process for VA employees and top career officials at the department, essentially by reducing the time allotted for it to play out. The measure also would give the secretary clear authority to rescind bonuses, retirement benefits and relocation expenses from employees under certain circumstances, and would prohibit all VA senior executives from receiving awards or bonuses from fiscal 2017 through 2021.

Under the VA Accountability First and Appeals Modernization Act (H.R. 5620), rank-and-file employees who have been fired because of performance or misconduct and appeal that decision to the Merit Systems Protection Board would not receive pay, bonuses, or certain other benefits while the appeal is pending. Senior executives would no longer be able to appeal removals or demotions to MSPB; instead they could appeal to an internal Senior Executive Disciplinary Appeals Board. But the secretary could reverse that board’s decision.

The White House said it was “deeply concerned” that the accountability provisions in H.R. 5620 would “undermine” the VA workforce and hinder employees’ ability to effectively serve vets.

“The administration is strongly committed to strict accountability standards that ensure VA employees act with the best interests of veterans in mind, and instances of misconduct or poor performance in carrying out these duties cannot be tolerated,” said the Sept. 12 statement. “But the administration believes that the approach to accountability in the legislation – focused primarily on firing or demoting employees without appropriate or meaningful procedural protections – is misguided and burdensome. This approach significantly alters and diminishes important rights and protections that are available to the vast majority of other employees across the government and which are essential to safeguarding employees' rights and the merit system.”

The White House also said that the measures reducing the employee notification and disciplinary process raise constitutional worries. “We would welcome the opportunity to work with the Congress to address these due process concerns and other potential constitutional concerns raised by the bill.”

The bill's sponsor, House Veterans' Affairs Committee Chairman Jeff Miller, R-Fla., said it was "quite obvious" that the administration was giving Democrats "wiggle room" to support the legislation by not threatening to veto it."That’s because, despite the administration’s allegiance to the union bosses that are fighting to uphold VA’s broken status quo, most sensible people know that without the type of accountability this bill would provide, VA reform will never succeed,” Miller said in a statement. 

The major employee accountability provisions in the bill would:

• Impose a shorter disciplinary process for rank-and-file employees who are fired or demoted. The entire process – from notification to the MSPB’s decision on an appeal – would be limited to 77 days.

• Give the VA secretary authority to strip pension benefits from VA senior executives who are convicted of a crime that influenced their job performance, and then fired. The bill also would prevent senior executives about to be fired because they were convicted of such a felony, but who instead retire, from receiving their full retirement benefits. The secretary would be allowed to take away the government contribution portion of the pension for the time period in which the employee was engaged in behavior warranting removal.  
•  Allow the VA secretary to recoup bonuses from VA employees when appropriate, with notification and an opportunity for appeal.
• Allow the VA secretary to recoup relocation expenses from VA employees who’ve engaged in misconduct, with notification and opportunity for appeal.

The administration, however, said it “strongly supports” the bill’s comprehensive plan to reform and improve the lengthy and complicated disability claims appeals process for veterans. Currently, there are more than 450,000 pending appeals, with vets waiting an average of three years for a decision. “The essential feature of this new approach is to step away from a unified appeals process that tries to do many unrelated things inside a single process and replace that with differentiated lanes, which give veterans clear options after receiving an initial decision on a claim,” the administration said of the reform plan. “And it would allow all veterans to have a clear answer and path forward on their appeal within one year from filing.”

H.R. 5620 also attempts to strengthen whistleblower rights, and would withhold bonuses from managers who don’t treat whistleblower complaints seriously, or who retaliate against such employees.

The Senior Executives Association opposes the legislation, and sent a letter Tuesday urging lawmakers to vote against it.

“SEA understands the need for accountability at the VA, and across the government, and absolutely supports holding individuals accountable for wrongdoing if it is proven to have occurred following an impartial investigation that provides genuine due process,” wrote SEA Interim President Jason Briefel in the letter. “Nonetheless, SEA has been troubled by the ongoing attacks against SES leaders at the VA, and the deleterious effects it has and will continue to have on the ability of the agency to attract and retain the leadership it needs to best serve veterans in the future.”

Miller, one of the chief architects of the 2014 Veterans Access, Choice, and Accountability Act – the law which tried to make it easier to fire VA senior executives -- has introduced several measures over the last few years that incorporate many of the provisions in H.R. 5620. The Justice Department recently said it could not enforce a key accountability component of the 2014 law, prompting the VA to announce it would no longer use the Choice Act’s expedited firing authority for senior executives.

“Many in Congress appear to believe the VA can fire its way to excellence,” wrote Briefel. “It’s not that simple, and a sticks-only workforce management strategy is not one that any successful business would advocate for.”

Asked if he had seen the administration’s statement on H.R. 5620, Briefel said that SEA “concurs with, and appreciates, the administration’s assessment and perspective on the ‘accountability’ provisions.”

J. David Cox Sr., president of the American Federation of Government Employees, said H.R. 5620 would "allow managers to circumvent" longstanding civil service protections. “This legislation is not about improving how we treat and care for our veterans," Cox said in a statement. "It’s a partisan effort to allow favoritism and cronyism to govern the VA by turning VA employees, and ultimately every federal worker, into an at-will employee who can be fired at any time with little to no recourse.” 

AFGE represents 230,000 VA employees.

Miller’s bill contains provisions that are similar to the Senate’s Veterans First Act, most notably the elimination of MSPB appeal rights for senior executives. But the House legislation contains measures that target the pay and benefits of problem rank-and-file employees, not just senior executives. The Veterans First Act, which has stalled in the upper chamber, also would reduce the amount of time an employee has to respond to proposed disciplinary actions. But earlier versions of that bill contained some stronger accountability measures for the rank-and-file that didn’t make it into the final legislation. The Senate bill also includes more hiring and pay flexibility for the VA to recruit health-care professionals, measures that are not in the House legislation.