Misbehaving VA Execs Could Lose Some of Their Pension Benefits

Senior executives at the Veterans Affairs Department engaged in misconduct leading to their removal could lose some of their pension benefits under legislation a House lawmaker plans to introduce soon.

House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., said on Thursday that his upcoming bill would give the VA secretary the authority to reduce the retirement benefits of certain senior executives “to reflect the years of service during which they participated in actions that made them subject to removal.”

The legislation, still in draft form, would prevent senior executives about to be fired from instead retiring with full 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. The rest would be returned to the employee in a lump sum.

Miller’s remarks came during a sometimes heated congressional hearing with VA Deputy Secretary Sloan Gibson in which several lawmakers criticized the department for dragging its feet to fire employees involved in the VA scandal related to data manipulation and excessive delays in scheduling doctors’ appointments for veterans.  

Since Aug. 7, when President Obama signed the 2014 Veterans Access, Choice and Accountability Act, two senior executives have been removed under the new law’s provisions making it easier to fire top career officials. “I do not understand, in the wake of the biggest scandal in VA’s history, how only 42 employees – only four of which appear to be senior executives – have been proposed for discipline with none yet removed,” Miller said.

Of those four senior executives, two have been fired and the other two retired, according to James Hutton, director of media relations at VA. Approximately 1,000 employees are under review for possible removal related to poor performance but not necessarily connected to the data manipulation scandal.

The Florida Republican said his pension-cutting proposal “is a fair and equitable way to emphasize to poor-performing senior employees that retirement credit is not earned by failing veterans and that their actions have long-lasting and meaningful consequences.”

Last week, VA Secretary Bob McDonald told a group of reporters in Washington that he has no power to “claw back the retirement earned over a career unless the person commits treason or a treasonous-like activity,” in response to criticism over the resignation and retirement of Susan Taylor, a former VA procurement official who spent 29 years in the federal government. She left the department before the VA could fire her after the IG found she improperly steered contracts.

Gibson on Thursday reiterated that the department does not have the authority to deprive a senior executive of her property, including earned retirement benefits, unless that employee is convicted of treason or terrorism.

There’s a debate between the department and some lawmakers, including Miller, over how to interpret the law’s provisions related to firing or taking other disciplinary action against senior executives because of misconduct or performance. Miller said he found “worrisome” McDonald’s recent remarks that the new law only changed the length of time that a senior executive has to appeal a proposed disciplinary action.

“It is clear that the secretary, and those advising him, remain confused on what the law actually does, which is much more than simply shorten the appeals process. No, the secretary can’t simply walk into a room and fire an SES employee without evidence warranting that action, but the law does give him the authority to remove that employee for poor performance or misconduct,” Miller said on Thursday.

The new law allows the department to fire and demote Senior Executive Service employees immediately, with paychecks getting cut off the day of the termination. The affected executive would then have seven days to issue an appeal to the Merit Systems Protection Board, which in turn would have 21 days for an expedited adjudication. MSPB’s ruling would be final. However, the department currently is giving affected employees five days’ notice of removal, which Miller and Rep. Doug Lamborn, R-Colo., said amounts to another appeals period. “These questionable actions are nowhere to be found in the law that we wrote and the president signed,” Miller said.

Gibson defended the department’s approach to removing employees for misconduct and poor performance. “The objective behind our process, this removal process, is for VA removal actions to withstand appeal,” Gibson said. “If our actions fail to meet the preponderance of evidence standards that the MSPB has established, or failed to provide the due process expected under case law, the Merit Systems Protection Board will simply overturn the decision, order the employee returned to their position, and direct that their back pay and legal costs be awarded. That would not be what’s right for veterans or for taxpayers.”

The deputy secretary also disputed the characterization of the five-day notice as an additional appeal for the employee. “It’s a reasonable opportunity to respond to the charges. That’s all it is,” he said, responding to questions from Lamborn.

Gibson also took some heat over what Republican lawmakers called an additional layer of bureaucracy, the creation of an Office of Accountability and Review within the department. The deputy secretary said that once officials realized they were going to have a large number of disciplinary actions to consider, he wanted to ensure they were handled properly and not turned over to another part of the organization – the Veterans Health Administration – “as normally would have been the practice in the past.” Problems with accountability, wait times and data manipulation surfaced within VHA.

A pointed exchange between Lamborn and Gibson illustrated the tension between lawmakers who want results quickly, and a department that is trying to balance the need for accountability with due process.

Lamborn: “In the view of this member of Congress you send the right message to the country and to veterans and to poorly performing employees by removing them, not giving them an additional appeals process of five days, and not by setting up a new layer of bureaucracy.”

Gibson: “We’re going to send the wrong message to veterans if we wind up having our removal decisions overturned on appeal, because there is no further appeal after that. They come back to us and we’ve got no recourse at that point. We are stuck with them.”