H.R. 1259 is the VA Accountability First Act of 2017. It has 24 co-sponsors and has been reported by the Committee on Veterans Affairs. The House Majority Leader indicated on March 9, 2017 that this bill may be considered by the House next week.
This bill, if enacted, would dramatically change the process for taking adverse or disciplinary actions within the Department of Veterans Affairs (VA). The committee report makes it clear this bill has largely been crafted as a result of significant problems surfacing in the agency in the last several years.
What This Bill Would Do
This bill would provide the Secretary of the VA with the authority to expeditiously remove, demote, or suspend any VA employee, including Senior Executive Service (SES) employees, based on performance or misconduct.
It would also:
- Provide improved protections for whistleblowers;
- Allow the Secretary to reduce an employee’s federal pension if he or she is convicted of a felony that influenced his or her job at VA;
- Recoup a bonus provided to an employee who engaged in misconduct or poor performance prior to receiving the bonus; and
- Allow the Secretary to recoup any relocation expenses that were authorized for a VA employee only through the employee’s ill-gotten means, such as fraud, waste, or malfeasance.
Rationale for The Legislation
The VA has come into the public spotlight in the past several years as a result of allegations of poor patient care and falsifying records to create the impression that care being delivered was better than the actual practice.
Based on information received by the Committee on Veterans Affairs, forty patients at the Phoenix VA Health Care System may have died while awaiting medical care.
The Committee also received evidence from whistleblowers that the Phoenix VA Health Care System kept multiple sets of records to conceal prolonged wait times for appointments.
On August 7, 2014, the Veterans Access, Choice and Accountability Act (“Choice Act”) was signed into law. This law gave the Secretary the expedited authority to remove Senior Executive Service (SES) employees based on performance or misconduct.
The Committee on Veterans Affairs concluded, based on several instances of further problems in the VA, that “it has become clear that VA often does not hold individuals appropriately accountable for their actions.”
The Committee cited an example of a problem. The report states a VA peer-support specialist took a veteran, who was an inpatient at the substance abuse clinic of the Central Alabama Veterans Health Care System, to a crack house. There, he helped the veteran purchase illegal drugs. He also paid for the veteran to engage in other illicit behavior. It took the agency a year to begin the removal process against the employee.
Speeding Up Process for Removal or Discipline
This bill would provide the VA Secretary with the authority to remove, demote, or suspend any title 5, hybrid title 38, or SES VA employee for performance or misconduct.
Under this Section, the employee would be entitled to advance notice and the opportunity to respond to the charges. This process would have to be done within ten business days altogether.
The Secretary would have five business days to make a final determination on the disciplinary action after reviewing the employee’s response. Once this decision has been made, the employee would be entitled to appeal the action to the Merit Systems Protection Board (MSPB). The appeal would have to be made within 7 business days of receiving the final disciplinary action from the Secretary.
An MSPB administrative judge would then have 45 days to complete an expedited appeal and render a decision. Beyond this level of appeal, the employee or the VA would be allowed to petition for further review by the full MSPB, and both parties would be authorized to seek judicial review of the full MSPB’s decision to the U.S. Court of Appeals for the Federal Circuit.
Process Would Supersede Other Administrative Avenues
This new procedure for disputing a removal, demotion, or suspension for performance or misconduct, would supersede any title 5, U.S.C., requirements. It would also take take precedence over any current collective bargaining agreements in the VA at both the national and local levels.
The bill would protect whistleblowers by not allowing the Secretary to remove, demote,
or suspend an employee if he or she has filed a complaint with the Office of Special Counsel (OSC). It would also apply to whistleblower protections enacted into law as part of the “Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act of 2017, and Zika Response and Preparedness Act,” (P.L. 114-223) until the complaints were resolved or finalized.
Federal Pensions and Addressing the Wait List Scandal
The Committee concluded that employees proposed for removal due to their misconduct or poor performance should not be able to retire or resign without any consequence and with their full federal pensions. The Committee concluded that a federal employee should not be allowed the benefit of a federal pension if that employee has engaged in “felonious activity.”
The bill would allow the Secretary to reduce the retirement pay for any VA employee upon conviction of a felony that influenced that employee’s work performance. The Secretary would have the authority to reduce the accrued years of service counted towards an employee’s pension. The pension would be reduced by the number of years in which the employee was found to have committed acts involved in the felony conviction.
Recovering Bonus Payments
The Committee believes that if a VA employee acts unbecoming of VA and its mission to veterans, as determined by the Secretary, then the Secretary should have the authority to rescind any bonus or performance award issued to that employee.
This bill would authorize recouping any bonus if the Secretary determines that the employee engaged in misconduct or poor performance and that the bonus would not have been paid to the employee had the Secretary been made aware of the misconduct or poor performance prior to the payment of the award.
Status of the Bill
This bill has been put on the “union calendar” in the House. There are indications it may be quickly considered by the House. The Committee Report cited in this article shows the strong negative reaction by some Committee members to how the VA has handled issues surrounding the care of veterans.
Because the new structures the bill would impose on the VA are dramatically different from how the federal civil service system is now structured, the bill will likely encounter strong opposition from Democrats. AFGE, which represents many VA employees, is already expressing its displeasure.
An AFGE press release describes it as a “union-busting bill” that will will “only advance the agenda of the Koch brothers, anti-union lawmakers, and private, for-profit corporations that would reap the benefits of a dismantled VA medical system.”