House Republicans' New VA Accountability Bill to Include More Appeal Rights

The House will take another crack at expediting the disciplinary process for employees at the Veterans Affairs Department, congressional aides told Government Executive Tuesday, with a new bill looking to preserve more due process rights than previous attempts at reform.

The new legislation will take a more tempered approach than the measure that passed the House late last year with a veto-proof majority, giving employees facing discipline more time and avenues to appeal the department’s decision. It will apply to both Senior Executive Service and General Schedule employees, though not to certain doctors, nurses and other medical practitioners covered under Title 38 of the U.S. code.

The bill -- sponsored by House Veterans' Affairs Committee Chairman Phil Roe, R-Tenn. -- would give the VA secretary expedited removal authority, meaning any employee fired by the secretary would be out of a job and off the department’s rolls that day. Any employee facing removal, suspension of at least 14 days or a demotion would receive advance notice of 10 days, and the secretary would have five days in which to rebut any response the employee comes up with in that time. That 15-day period cuts in half the advance notice time frame currently in law.

VA employees could at that point appeal to the Merit Systems Protection Board, where administrative judges would have 45 days to issue a decision. An employee could then appeal to the central board and its presidentially appointed, Senate-confirmed members and further to the U.S. Court of Federal Claims. The latter two entities would not operate under any statutory time restriction. The employees would no longer be receiving government paychecks, the committee aides said, which would relieve the pressure for an expedited process.

The measure would lower the government’s bar to demonstrate employees accused of misconduct deserved their discipline from a “preponderance of evidence” to a “substantial” threshold. That would bring employees accused of poor performance and misconduct under the same threshold, aides said, making it easier for the government to argue its case to the MSPB and win.  

The bill would allow VA to reduce employees’ pensions if they are convicted of a felony that affected their job and to recoup bonuses and relocation expenses in some circumstances. Employees facing those penalties would be entitled to an appeal. It would also give the VA secretary direct hiring authority for medical center and vision directors, positions that have a large number of vacancies and significant turnover. Medical practitioners on Title 38 would see their own, internal appeals process brought under the same time-frame as all other VA employees.

President Obama signed a law in 2014 as part of a larger, bipartisan VA reform bill to hasten the firing of VA’s senior executives, but that provision is no longer being enforced after a legal challenge questioning its constitutionality. The committee aides said those concerns have been addressed, and the bill would repeal that provision of the 2014 Choice Act.

“I’ve said time and time again that the vast majority of the employees at the VA are hardworking and have the best interests of our veterans at heart," Roe said, "but there are still too many bad apples within the department. Our veterans deserve better, and the VA employees who fulfill their duties deserve better." 

The aides predicted some Democrats would push back on the bill, but they noted it received 69 Democratic votes last Congress and the legislation has only expanded employee rights since that iteration. The latest version attempts to find a sweet spot while still fixing the system, they said.

Still, Marilyn Park, a legislative representative at the American Federation of Government Employees, which represents 270,000 VA workers, called the proposal "disturbing." She said the condensed 10-day timeframe for employees to formulate a response to an adverse personnel action would move VA "much closer to at-will employment." 

"If you want to make sure the right people stay and the wrong people leave, you can’t keep shortening the time," Park said. "You’ll get it wrong." She added the weakening of the evidentiary standard will lead to more retaliation against whistleblowers and called the penalties on retirees' pensions a "terrible" practice never seen in the private sector. 

The committee is planning to move forward quickly; it has been in contact with the White House and shared preliminary text with officials there, who have provided a positive response. No one has voiced concern, the aides said, and the officials have said the bill falls in line with their thinking on the matter. Trump listed increased accountability for VA employees as one of his priorities during his campaign. The committee has also been in touch with VA Secretary David Shulkin to discuss the reforms. Roe said he was proud to work with Trump and his administration in putting the legislation forward.

The committee’s Senate counterparts have been receptive to the bill, the aides said, and House leadership has already expressed support. A spokeswoman for Sen. Johnny Isakson, R-Ga., the chairman of Senate’s VA panel, said last week accountability is “one of the committee’s top priorities.” The House committee plans to mark up its bill on March 8.