The VA Accountability and Whistleblower Protection Act of 2017 (S. 1094) has now been signed into law.
In addition to having been supported by the President, VA Secretary David Shulkin had endorsed it as well. He told a Senate subcommittee recently, “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.”
Expedited Procedures for Removal, Suspension or Demotion
The bill would impact executives and employees of the VA. It will enact a quicker procedure for removing or demoting an employee.
The Senate version of the bill provides a longer appeal process than the bill passed by the House. The bill that has passed in Congress provides for 180 days in the appeal process instead of the 45 days in the original House bill. VA executives would be subject to a different and more strict standard than lower ranking employees as outlined below.
A removal, demotion or suspension of more than 14 days could still be appealed to the Merit Systems Protection Board (MSPB). An 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.
If an employee prevails in an appeal, the employee would receive backpay.
Even if an employee files a grievance under the provisions of a union contract, instead of filing an appeal with the MSPB, the time limits in the bill would still apply.
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. An employee would only receive pay if the employee reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.
Moreover, the new procedures would “supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.”
Removing, Suspending or Demoting A Senior Executive
The bill would also have an impact on procedures for taking action against executives of the VA.
The bill enacts a quick procedure for removing or demoting an executive. As stated in the bill, “The aggregate period for notice, response…may not exceed 15 business days.” Also, the VA Secretary is to ensure that the grievance process takes fewer than 21 days.
A person covered by this procedure bill be entitled obtain judicial review of such decision.
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. Also, the Secretary would have to determine 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 the VA to an employee.
The VA Secretary will 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.