Congress has taken up the mantle of holding Department of Veterans Affairs’ employees accountable again.
The Senate and the House of Representatives have passed the VA Accountability and Whistleblower Protection Act of 2017, which focuses on placing a higher standard of accountability upon executives, rather than rank-and-file workers. President Donald Trump has already indicated that he will sign the bill.
The VA Accountability and Whistleblower Protection Act (S. 1094) was a response to the Federal Circuit’s declaration as unconstitutional a provision in the Veterans Access, Choice and Accountability Act in an appeal of the case of former Phoenix VA Health Care System Director Sharon Helman. The Court held that the prior bill didn’t allow for review of VA disciplinary proceedings by the full Presidentially Appointed, Senate Confirmed Merit Systems Protection Board (MSPB), and that this violated the Constitution.
The VA Accountability and Whistleblower Protection Act also does not allow for full MSPB review of SES disciplinary decisions by the Secretary of the VA. If a senior executive wants to challenge a disciplinary action or removal from service, he or she can grieve the Secretary’s decision using a yet-to-be-determined internal VA procedure – to be developed by the Secretary and a new Assistant Secretary, who will be a presidential appointee.
The grievance procedure will be swift as it will be limited to a decision within 21 days from when the grievance is filed. If the executive is still not satisfied following the grievance procedure, senior executives can seek judicial review of the appeal decision. Here, the law is vague as it does not say in which Court such a review may be sought – a problem that may have to be litigated in the future.
Though it is risky on a constitutional level to eliminate the MSPB from the review process, the creation of an internal grievance procedure does grant executives the right to appeal a decision before taking the matter to a court. Without that step, the VA Accountability and Whistleblower Protection Act could easily fall into the same trap that ultimately doomed the Veterans Access, Choice and Accountability Act. Judicial review, however, may save it from the same fate.
Rank-and-file VA employees who are disciplined, demoted or removed from service can appeal their decisions to the MSPB, but must do so within 10 business days following the effective date of the action. Any review of a rank-and-file employee’s case by a MSPB administrative judge must be concluded within 180 days from the date when the appeal was filed. All other traditional rules for appealing a decision apply, including the ability to appeal to the full MSPB if it is first denied by an administrative judge, and the ability to appeal a judge’s decision to the full MSPB or Federal Circuit Court of Appeals as desired is left intact.
A Lower Standard of Proof
There is another aspect in the VA Accountability and Whistleblower Act which all employees need to consider. Instead of needing to meet “a preponderance of evidence” standard to discipline, demote or remove an employee, the Secretary of the VA now would only need “substantial evidence” to take action. This is a lower standard of proof that is now only used in performance based actions under chapter 43 of title V. This lowered standard of proof may lead to more employees facing disciplinary actions, as it makes proving the infractions far more readily attainable.
Once the VA Accountability and Whistleblower Act becomes law, VA employees, especially executives, should strongly consider retaining legal counsel the moment they receive notification of possible investigation and/or disciplinary actions. Between the proposed streamlined procedures, reduced timetables and the reduced proof needed to take action, it will become more difficult for employees to retain their jobs unless they have someone who can guide them through the process with efficiency and knowledge.
Two things are clear: Congress wants to make it easier for the Secretary of the VA to discipline or remove employees for cause, and it wants to ensure that there can be no further constitutional challenges to the process. It remains to be seen whether the bill succeeds in holding VA workers more accountable, especially senior executives.