Fixing accountability first: Another look at the Restore VA Accountability Act

Legislation pending in the GOP-controlled House would make it easier to fire Veterans Affairs Department employees, and that has stirred up lots of debate recently. That bill—cannily entitled the Restore VA Accountability Act (H.R. 4278)—would allow the VA secretary to remove or demote certain employees, and for some, all but eliminate appeals to the Merit Systems Protection Board.

Proponents say that legislation is necessary to rid VA of poor performers, while critics argue that VA already has all the tools necessary to do so today. The Senate has said as much in its own version of the legislation, just introduced this week.

However, in my view, we should not be so quick to condemn what the House’s VA legislation is trying to do. Its purported goals are worthwhile—regardless of the motivation of some of its sponsors—but as in all things, the devil is in the details.

What’s driving the legislation?

There isn’t space enough here to catalog all those details. I will leave that to the lawyers, scholars and legislators involved. But suffice it to say that almost everyone in the civil service echo chamber (of which I’m a card-carrying member) is up in arms over what that bill seeks to do.

Contrary to most in that echo chamber, there are some of us who believe that we should not blithely condemn this effort. No matter how flawed its specific proposals (or the motivation of some of its sponsors) may be, on its face it is intended to improve the accountability of VA employees, and that’s a principle upon which we should all be able to agree. Moreover, as most career managers and executives know all too well (especially those in the vast VA hospital system), it is too hard to fire or demote a poorly performing or behaving federal employee.

It’s time to admit that publicly, and more importantly, to do something about it. If we don’t, other reforms that many (me included) want to see for the federal civil service system—reforms like simpler, speedier hiring and more competitive pay—will be dead on arrival on a hyper-partisan Capitol Hill.

Statistics, anecdotes and the truth on the ground

I know what the scholars and the statistics say: that thousands of federal employees (including hundreds in VA) are removed each year, at rates comparable to the private sector. Those statistics also tell us that agencies win almost all the cases that are appealed to the MSPB and the Federal Circuit.

But those managers and executives on the front line know there’s more to it than that. High win rates are a sure tell that only slam dunk cases are being pursued, with agencies only going after the most obvious and egregious instances of poor performance and behavior, the ones that third parties like the MSPB and/or the Federal Circuit cannot deny. That means they leave others—including those that still have an adverse mission impact—alone.

Moreover, while it’s anecdotal (not to mention politically incorrect) to reveal what is an open secret, I’ve talked to too many VA hospital executives and managers who say that those statistics notwithstanding, (a) they have lots of employees who are not performing up to anyone’s standards—least of all their patients—either in terms of performance and/or behavior, but (b) “it’s just not worth the time and trouble” to hold them accountable to those standards. So, they let them pass.

The other telling fact is that co-workers know this as well. As the Federal Employee Viewpoint Survey shows year in and year out, almost one-third of all respondents see examples of poor workplace behavior or performance that are left alone, because it’s too hard to address them. And for their part, savvy managers and executives know how to cope with some of those by employing other informal tools—such as reassigning or even promoting a problem employee to another work unit, so that employee becomes someone else’s problem. None of that shows up in the statistics.

Don’t abandon the system, rationalize it

The evidence suggests that we need a far less legalistically arcane and procedurally protracted means of holding poor performers accountable, especially in ways that don’t subject the moving party to facetious counterclaims—like retaliation or discrimination—that may not only put them on the defensive but may even deter them from taking action in the first place. And this includes VA executives and managers who have sometimes found themselves the target of legislative ire, particularly for not taking their subordinates to task.

This is not an argument for making VA workers (or any federal employees) “at will” like their many non-union private sector counterparts. No, these career civil servants—both seniors and frontline employees alike—want and deserve protection against arbitrary actions that are not rooted in mission and merit. But not to the point where accountability for results becomes procedurally and practically unattainable, a “nice to have” but largely theoretical afterthought.

So, is the House’s VA legislation—which looks almost certain to pass that chamber, along with the even more problematic Public Service Reform Act—the answer? In my view, no. Both H.R. 4278 and the Public Service Reform Act—which would make all executive branch employees “at will”—go far too far and most likely won’t get past the Senate. So, where does that leave us? With the status quo, with all that that entails. Our nation’s veterans deserve better than that.

VA’s mission is just too important

Not all the ideas set forth in the new VA Accountability Act should be dissed or dismissed out of hand. And more importantly, the substantive (as opposed to the political) reasons behind them need to be more thoughtfully considered, perhaps by a bipartisan Blue Ribbon Commission that examines accountability and other reforms necessary to support a truly professional, high-performing 21st century federal civil service—one that is responsive not to a particular political agenda but to the responsibilities and authorities given them by the Congress.  

Such a system shouldn’t protect those who can’t (or won’t) meet legitimate standards of performance or conduct, and who use “the process” as a shield against accountability. But by the same token, hardworking VA (and other federal) civil servants should be afforded legitimate protections against arbitrary, vindictive managers who themselves may be poor performers. The answer is somewhere in between the two extremes—between status quo on one hand, and “at will” employment on the other—and serious policymakers need to find that sweet spot. It demands more than a “just say no” response.

Ronald Sanders is a former career senior federal executive of more than 20 years. He is also a fellow of the National Academy of Public Administration and a member of the American Society for Public Administration’s National Council. He has served as chair of the Federal Salary Council, associate director of OPM, director of civilian personnel policy at the Defense Department, chief human resources officer at the Internal Revenue Service, and the Intelligence Community’s first associate director of national intelligence for human capital.