It May Soon Be Easier to Fire Any VA Employee, Not Just Top Execs

A House panel on Thursday approved legislation that would make it easier to fire employees at the Veterans Affairs Department.

The 2015 VA Accountability Act, H.R. 1994, sponsored by House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., would give the VA secretary much more flexibility to fire corrupt or poor-performing employees, not just top officials. The bill essentially would expand to the entire workforce the authority of the 2014 Veterans Access, Choice and Accountability Act, which made it easier to get rid of senior executives at the department engaged in wrongdoing.

The Veterans’ Affairs Subcommittee on Economic Opportunity reported out H.R. 1994 along party lines, after some debate. It now heads to the full committee, where it will likely pass.

The legislation would allow the secretary to remove any VA employee based on performance or misconduct; the employee could file an appeal to the Merit Systems Protection Board within seven days of his or her removal. MSPB would have to rule within 45 days of the appeal filing. Due process for most of the federal workforce now requires that agencies notify employees within 30 days of an adverse action (including removal), provide them with seven days to respond and an opportunity to defend themselves.

H.R. 1994 also would extend the probationary period for new VA employees from one year to 18 months, and allow the secretary to extend that even further. It would limit the secretary’s authority to fire or demote an employee who is a whistleblower, in an effort to protect those workers from intimidation and retaliation.

Ranking Member Mark Takano, D-Calif., and Rep. Kathleen Rice, D-N.Y., who both opposed the bill, offered unsuccessful alternatives during the markup. Takano’s would have limited the firing flexibilities sought in H.R. 1994, instead allowing the secretary to remove or suspend without pay employees engaged in activity that poses a direct threat to public health and safety, which some lawmakers felt could not be applied to instances where taxpayer money was wasted, as in the debacle over cost overruns in the construction of a new VA hospital in Colorado, or abuse of government charge cards. Subcommittee Chairman Brad Wenstrup, R-Ohio, said the language in Takano’s amendment created “a nearly unobtainable if not immeasurable bar to reach.”

Takano said he agreed with Republicans that the VA had shown “an inability to manage its workforce” and get rid of bad actors under the current civil service authorities.

“We must provide VA more direction to fire employees whose actions harm veterans, but the majority’s bill is unconstitutional, and would be overturned in a courtroom,” Takano said, later adding that H.R. 1994 would “destroy the civil service at the VA.” Rep. Dina Titus, D-Nev., who supported Takano’s amendment, worried about the effects of H.R. 1994 on the VA’s ability to recruit employees. “Just imagine what it will do to recruitment efforts once the word gets around that Congress is taking away many of the civil service protections that are available to federal employees and we are creating essentially a new class of federal employee called the VA class,” she said during the markup.

Takano’s amendment also would have required a one-year “cooling off” period between the time a VA senior executive leaves government and is able to take a job with a VA contractor. There was also a provision limiting the amount of time a VA employee could be on paid administrative leave. Wenstrup said he would work with Takano on including those provisions into H.R. 1994 before the full committee markup.

Lawmakers and other stakeholders have grown increasingly frustrated that the department has been slow to fire any employees in connection with the scandal that erupted last year at a Phoenix, Ariz., facility over excessive wait times for vets seeking care. Problems involving data manipulation, mail mismanagement, drug overprescriptions and retaliation against whistleblowers have come to light since then at several other VA facilities across the country.

Several veterans’ groups, including Veterans of Foreign Wars, Iraq and Afghanistan Veterans of America, and Concerned Veterans for America have expressed support for H.R. 1994. The bill has 71 co-sponsors, including two Democrats. But the American Federation of Government Employees strongly opposes the legislation.

In a June 23 letter to Wenstrup and Takano, AFGE said H.R. 1994 would eliminate due process for non-management VA employees, that longer probationary periods for employees would harm veterans and whistleblowers, and that the department already has the authority to fire bad apples.

During a Wednesday Senate Veterans’ Affairs Committee hearing on a companion bill to H.R. 1994, the Partnership for Public Service said moving to “at-will” employment at the VA will not help reform the system or improve service to veterans. “Ultimately, we believe that perhaps the biggest contributor to the performance problems at the VA is the quality of the management, rather than the quality of the system,” said President and CEO Max Stier. “While the government’s management systems can and must be improved, changing the system alone will not produce the desired results.”