The Department of Veterans Affairs (VA) Accountability and Whistleblower Protection Act is a bipartisan bill. Its intent is to reform the Department of Veterans Affairs (VA) by allowing the secretary to dismiss employees who are not performing. It is also intended to ensure appropriate due process protections for whistleblowers.
The bill is 52 pages long and covers a number of topics that would impact employees in the Department of Veterans Affairs if it becomes a law. The bill is a Congressional response to problems encountered by the VA in the last several years. The VA has also been roundly castigated in the press and Congress for not taking more decisive action against employees involved in acts that resulted in veterans receiving insufficient care.
Purpose of the Bill
According to Senator Marco Rubio (R-FL):
To fully reform the VA and provide our nation’s veterans with the quality care they were promised and deserve, we must ensure the department can efficiently dismiss employees who are not able or willing to do their jobs. This legislation would improve on the law we enacted in 2014, and I’m grateful to Chairman Isakson and Ranking Member Tester for working with us to craft a bill that will protect whistleblowers and the many VA employees who are passionate about caring for our veterans, while also empowering the VA to hold bad employees accountable. We must make real changes that put the well-being of our servicemembers before the best interests of bureaucrats.
An editorial in Military Times regarding the bill was written by Senator Rubio along with Senator Johnny Isakson (R-GA) and Congressman Phil Roe (R-TN).
The gist of the editorial is reflected in this paragraph:
Current law, civil service rules, and unions are standing in the way. Over and over, we’ve seen the VA attempt to take disciplinary action against an employee, only to see the appeals process prove so complex, lengthy and lenient that accountability was virtually impossible to achieve.
The editorial also notes that the VA Accountability and Whistleblower Protection Act “improves on the law enacted in 2014 by expanding the VA secretary’s authority to dismiss not just senior managers, but also lower level staff who do not do their jobs.” (See Appeals Court Rules on Former VA Director’s Termination for more information.)
Support for the Bill by VA Secretary
The bill also has the support of the VA Secretary, David Shulkin. Secretary Shulkin recently stated in a Senate Appropriation Subcommittee Hearing:
I wish today I could tell you I have the tools to do the right thing, to be able to remove (bad) employees. I do not. So unfortunately, I need a new set of tools if I’m going to be held accountable for turning this system around and doing what we all want to do to serve veterans. So I thank you for introducing this bill, I think it’s necessary.
Expedited Procedures for Removal, Suspension or Demotion
The bill would impact executives and employees of the VA. It would enact a fast procedure for removal or demotion of an employee by the agency. As stated in the bill, “The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days.” Moreover, the new procedures would “supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.”
A removal, demotion or suspension of more than 14 days could be appealed to the Merit Systems Protection Board (MSPB). The appeal would have to be made within 10 days and an Administrative Judge of the MSPB would have to issue a decision within 180 days after the date of the appeal. The Judge would be required to uphold the decision by the VA Secretary if supported by substantial evidence. If supported, the penalty could not be mitigated.
An employee who prevails on appeal would receive backpay. If an employee grieves under the provisions of a union contract, the time limits in the bill would still be applicable.
There are also restrictions on paying an employee who has been demoted under the provisions of the bill. A person who is the subject of the action by the VA Secretary could not be placed on administrative leave during an appeal of the action.
For a VA employee seeking corrective action from the Office of Special Counsel based on an alleged prohibited personnel practice, the VA Secretary would not be allowed to remove, demote, or suspend the employee without the approval of the Special Counsel. Action could be taken once steps have been taken in the investigative process.
Impact on Annuity for Employees Convicted of Certain Crimes
The bill contemplates reducing the annuity of an employee convicted of a felony that influenced the performance of an employee while working for the VA.
For instances in which the annuity of an employee is reduced, there will be a procedure for appealing the annuity reduction to the Director of the Office of Personnel Management (OPM). This reduction could also be applied to employee who have already retired.
Recouping Bonus Payments
The bill also allows the agency to recoup bonus payments made to an employee if the Secretary determines that the individual engaged in misconduct or poor performance prior to payment of the award or bonus, and that the award or bonus would not have been paid if the misconduct or poor performance been known prior to the agency making the payment.
Authority to Recoup Relocation Expenses
A similar provision applies to relocation expenses paid by an agency to an employee.
The VA Secretary would be entitled under this bill to issue an order directing an employee of the Department to repay the amount, or a portion of the amount, paid to or on behalf of the employee for relocation expenses if the expenses were paid following an act of fraud or malfeasance that influenced the authorization of the expenses.