Nobody at the Department of Veterans Affairs linked to phony appointment logs or patient deaths has been fired, despite a hastily passed new law designed to make it easier to oust corrupt and inept federal managers.
The legislation President Obama signed in August is aimed at speeding the process of firing dishonest and incompetent managers in the scandal-plagued department.
Congress hurried the legislation after revelations earlier this year by the Washington Examiner and others about dozens of patients dying following unreasonable delays in seeing doctors and getting treatment at VA facilities.
But VA Secretary Robert McDonald hasn’t used the new powers to fire anybody implicated in the widespread scheduling fraud that allowed senior managers to appear to meet agency goals and qualify for hefty bonuses.
The personnel provision of the new law “seems widely misunderstood or misinterpreted,” McDonald said.
“It doesn’t allow VA to fire senior leaders without evidence or cause, nor does it guarantee that senior executives will be fired if VA is seeking to remove them,” McDonald said. “It doesn’t do away with the appeal process or guarantee VA’s decision will be upheld on appeal.”
VA secretaries could fire those who committed misconduct before Obama signed the VA reform bill, said Cheri Cannon, a labor lawyer who used to represent federal agencies in personnel matters.
That they haven’t done so almost six months after the scandal drew national attention in April is a problem with leadership, not the law, she said.
“The cultural refusal to fire people isn’t fixed by changing the statute and making it faster if they won’t do it to start with,” said Cannon, who now represents employees challenging agency decisions.
Click here to see an infographic on what’s changed — and what hasn’t — in the new law designed to make it easier to fire corrupt and inept federal executives.
What the new law did was shorten the official timeframe for appeals when a member of the Senior Executive Service, the top federal management echelon, is fired or disciplined.
But it didn’t lessen the labyrinth of federal laws, bureaucratic rules and constitutional hurdles that must be navigated to fire a dishonest or inept government executive.
The expedited procedures will likely be voided as unconstitutional, Cannon said. Even if they are not, the new language short-circuits the appeal rights of VA and targeted employees, raising the risk that corrupt managers stay on the payroll, she said.
“They would be insane to use this,” Cannon said. “I would never in a million years recommend to VA management that they use this process.”
The constitutional problem, Cannon said, is rooted in a 1985 U.S. Supreme Court decision that held most civil service employees have a property right to their jobs. That right can only be negated if the employee has a meaningful right to respond to the charges.
The constitutional concern is that the law strips the employee of an effective right to challenge personnel actions, Cannon said.
Under the old law, the employee could challenge termination to the federal Merit Systems Protection Board.
An administrative judge decides the case. Either side can challenge that decision to the three-member MSPB. The entire process takes more than a year, on average.
The board’s decision can be appealed in federal court by the employee.
That system remains in place for most other federal agencies, and for VA employees who are not senior executives. McDonald could still use the old system to fire top managers.
In the new law, the SES manager has seven days to appeal to the MSPB. The administrative judge then has 21 days to render a final decision. If the judge does not decide, the firing stands.
The judge’s decision cannot be appealed. If the agency loses, the employee returns to work.
“Nobody gets to appeal, so if the judge finds it unconstitutional, who’s going to review that?” Cannon said. “They’re done. They’ll never use it again.”
Agencies win about three-fourths of the cases that are challenged at MSPB, according to the board’s 2013 annual report. Employees win about 4 percent and the rest are settled.
Rep. Jeff Miller, R-Fla., chairman of the House Committee on Veterans’ Affairs, said he is not worried about the constitutionality of the law, only McDonald’s willingness to fire unethical employees.
“So far, we have seen no evidence that the corrupt bureaucrats who created the VA scandal will be purged from the department’s payroll anytime soon,” said Miller, who championed the language on senior managers. “Until that happens, VA will never be fixed.”
What disciplinary action VA has taken is unclear. Agency officials will not name names, citing federal privacy laws.
The process to terminate the former head of the Phoenix VA hospital, where the scandal over bogus waiting lists erupted, began in May. But she’s yet to be fired and remains on administrative leave.
Two SES employees have resigned or retired.
Donald Devine, former director of the Office of Personnel Management in the Reagan administration, said he sees no constitutional problems with the reforms and overall believes they are positive.
But the law does not fix the underlying problem at VA, which is that there is no culture of accountability, he said.
Every SES employee at VA got a positive performance review for each of the past four years, according to recent congressional testimony from the agency’s top personnel officer.
Since 2009, only three career senior executives at VA have been fired for misconduct or poor performance, according to OPM. Only 21 were fired from cabinet-level agencies government-wide in that period.
“A realist would have to say almost nothing is going to happen,” Devine said. “What good is a good appeals process if you never get it sent to you?”
