Congress Set to Reinvent the Wheel By Politicizing the SES System at DVA

By on June 22, 2014 in Current Events, Human Resources with 10 Comments

We’ve all been reading the new stories about how the sky is falling at Department of Veterans Affairs (DVA) Health Administration and how Congress must come to the rescue by once again micromanaging the Federal workforce without consideration of the consequences.  I’ll keep it short but there are very good reasons not to mess around with the Senior Executive Service (SES) at DVA.

America used to have a civil service system that any country could be proud of.  Since Congress started meddling with the system in the early 1990s Agency by Agency, we now have a complicated, confusing and frankly ridiculous mélange of put together programs created for reasons of politics that reflect governance at its worst.

The Federal Aviation Administration and Transportation Security Administration are outside of the civil service for reasons no one can understand.  Are they better organizations for it?  The banking Agencies and the Security and Exchange Commission bargain pay, why?  Who knows, not the Hill for sure?

No one is charged with merit system protection.  The Office of Personnel Management (OPM) tells us “OPM provides human resources, leadership, and support to Federal agencies and helps the Federal workforce achieve their aspirations as they serve the American people. “We’re responsible for keeping the government running smoothly — a responsibility that has daily consequences for every citizen.”  Do you think OPM keeps the government running smoothly?  OPM in its publication talks about a “modern” definition of merit which even it can’t explain with a straight face.  Do you think OPM has enhanced merit in Federal service by its policies?

The Merit Systems Protection Board tells us (At the top of its homepage) that its “Mission: Protect the Merit Systems Principles and promote an effective federal workforce free of Prohibited Personnel Practices”.  MSPB is an adjudicator pure and simple.  It has no other authority.  It occasionally issues reports (often excellent) but has no teeth except in response to an action taken against an employee.  Is staffing more merit-based since the Board’s creation.  Does anyone believe classification is based on merit today?

In 1978, Jimmy Carter did a deal with AFL-CIO.  In exchange for that organization’s support for the Civil Service Reform Act including labor relations for Federal employees by law for the first time, the administration got to put into effect a merit pay system, now defunct, and the Senior Executive Service.  The current SES is may be in need of an update but the DVA SES law is exactly the wrong way to go about it.

The Senior Executive Service as presently constructed has all the tools an Agency executive with any intestinal fortitude and a good fact case needs.

I have been involved with SES cases since 1987.  I was the hearing advocate of Navy’s first removal of an SES member from the SES for performance.  I was involved in two more cases, one involved a removal from the SES back to the civil service and the other, another performance-based action.  Each of these cases took essentially three elements.  First, the establishment of an evidenced-based record showing that an appropriate Agency action would likely be sustained by the MSPB; second, strict observance of the required procedures and attention to the individual’s rights; and third, the courage of the Executive decision maker involved to do the right thing in the face of, in each case, weak kneed hand wringing from managers within the organization.

Proposed Legislation

None of the news reports I’ve seen printed the actual language of the proposed SES legislation at DVA so below is the Senate version:

S.2450

Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 (Placed on Calendar Senate – PCS)

SEC. 409. REMOVAL OF SENIOR EXECUTIVE SERVICE EMPLOYEES OF THE DEPARTMENT OF VETERANS AFFAIRS FOR PERFORMANCE.

(a) Removal or Transfer-

(1) IN GENERAL- Chapter 7 of title 38, United States Code, is amended by adding at the end the following new section:

`Sec. 713. Senior Executive Service: removal based on performance

`(a) In General- The Secretary may remove any individual from the Senior Executive Service if the Secretary determines the performance of the individual warrants such removal. If the Secretary so removes such an individual, the Secretary may–

`(1) remove the individual from the civil service (as defined in section 2101 of title 5); or

`(2) transfer the individual to a General Schedule position at any grade of the General Schedule for which the individual is qualified and that the Secretary determines is appropriate.

`(b) Notice to Congress- Not later than 30 days after removing or transferring an individual from the Senior Executive Service under subsection (a), the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives notice in writing of such removal or transfer and the reason for such removal or transfer.

`(c) Procedure- (1) The procedures under section 7543 of title 5 shall not apply to a removal or transfer under this section.

`(2)(A) Subject to subparagraph (B), any removal or transfer under subsection (a) may be appealed to the Merit Systems Protection Board under section 7701 of title 5.

`(B) An appeal under subparagraph (A) of a removal or transfer may only be made if such appeal is made not later than 7 days after the date of such removal or transfer.

`(d) Expedited Review by Merit Systems Protection Board- (1) The Merit Systems Protection Board shall expedite any appeal under section 7701 of title 5 of a removal or transfer under subsection (a) and, in any such case, shall issue a decision not later than 21 days after the date of the appeal.

`(2) In any case in which the Merit Systems Protection Board determines that it cannot issue a decision in accordance with the 21-day requirement under paragraph (1), the Merit Systems Protection Board shall submit to Congress a report that explains the reason why the Merit Systems Protection Board is unable to issue a decision in accordance with such requirement in such case.

`(3) There is authorized to be appropriated such sums as may be necessary for the Merit Systems Protection Board to expedite appeals under paragraph (1).

`(4) The Merit Systems Protection Board may not stay any personnel action taken under this section.

`(5) A person who appeals under section 7701 of title 5 a removal under subsection (a)(1) may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits from the Secretary until the Merit Systems Protection Board has made a final decision on such appeal.

`(6) A decision made by the Merit Systems Protection Board with respect to a removal or transfer under subsection (a) shall not be subject to any further appeal.’.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

`713. Senior Executive Service: removal based on performance.’.

(b) Establishment of Expedited Review Process-

(1) IN GENERAL- Not later than 30 days after the date of the enactment of this Act, the Merit Systems Protection Board shall establish and put into effect a process to conduct expedited reviews in accordance with section 713(d) of title 38, United States Code.

(2) INAPPLICABILITY OF CERTAIN REGULATIONS- Section 1201.22 of title 5, Code of Federal Regulations, as in effect on the day before the date of the enactment of this Act, shall not apply to expedited reviews carried out under section 713(d) of title 38, United States Code.

(3) REPORT BY MERIT SYSTEMS PROTECTION BOARD- Not later than 30 days after the date of the enactment of this Act, the Merit Systems Protection Board shall submit to Congress a report on the actions the Board plans to take to conduct expedited reviews under section 713(d) of title 38, United States Code, as added by subsection (a). Such report shall include a description of the resources the Board determines will be necessary to conduct such reviews and a description of whether any resources will be necessary to conduct such reviews that were not available to the Board on the day before the date of the enactment of this Act.

(c) Temporary Exemption From Certain Limitation on Initiation of Removal From Senior Executive Service- During the 120-day period beginning on the date of the enactment of this Act, an action to remove an individual from the Senior Executive Service at the Department of Veterans Affairs pursuant to section 713 of title 38, United States Code, as added by subsection (a), or section 7543 of title 5, United States Code, may be initiated, notwithstanding section 3592(b) of title 5, United States Code, or any other provision of law.

(d) Construction- Nothing in this section or section 713 of title 38, United States Code, as added by subsection (a), shall be construed to apply to an appeal of a removal, transfer, or other personnel action that was pending before the date of the enactment of this Act.

Important Features of the Legislation

So I guess the biggest deal is no court review of a MSPB decision followed by the removal of any obligation to follow 5 U.S. Code 7543 which says:

“(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

(b) An employee against whom an action covered by this subchapter is proposed is entitled to—

(1) at least 30 days’ advance written notice, unless there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed, stating specific reasons for the proposed action;

(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and specific reasons therefor at the earliest practicable date.

(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.

(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.

(e) Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.”

What’s the Problem?

So, in essence, DVA senior executives, many with years of Federal service will lose both procedural protections and the right to a court review by other than a politically constructed MSPB currently run by former Federal employee union lawyers.  This is a shameful development in American governance apparently driven by media pressure on politicians bent on a sound bite rather than the encouragement of good government.  An OPM and MSPB with integrity would strongly oppose this legislation because it is not based on merit but won’t because they have become political organizations themselves.

I wish I couldn’t write the above but sadly it is all true.  Teddy Roosevelt, a former Civil Service Commissioner will be turning in his grave at the handing back to a politician the ability to easily set aside senior career service employees without due process or court review.

Any opinion in the above is my responsibility.  I only wish there were influential people in government who would see the folly of this and oppose it.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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