Repackaged House bill extends same controversial VA firing procedures to all SES

CORRECTION: The new bill would let VA senior executives appeal disciplinary decisions to a new Senior Executive Disciplinary Appeals Board, not the Merit Systems Protection Board as Federal News Radio previously reported. Federal News Radio regrets the error.  

The House passed “the Government Reform and Improvement Act” early Thursday morning.

What once started as a short bill clarifying an agency leader’s role in protecting the organization’s IT systems now focuses on the controversial topic of federal employee accountability.

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House lawmakers folded several pieces of familiar legislation to change the way agencies discipline and remove federal employees and members of the Senior Executive Service.

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Most notably, the bill gives agency leaders the authority to more quickly fire or demote SES members for misconduct or poor performance. The expedited timeline and procedures are strikingly similar to the timeline described in the Veterans Access, Choice and Accountability (Choice) Act of 2014 — the same provisions that the Veterans Affairs Department announced it would no longer use.

Agency leaders would have five days to give written notice of their intent to fire or demote a senior executive, the bill said. Leaders must tell Congress about the removal or transfer within 30 days.

Like VA senior executives, SES members could appeal their disciplinary decision to an administrative judge at the Merit Systems Protection Board. The MSPB judge has 21 days to issue a decision.

These provisions will likely be a hard sell in Congress. The VA decided last month it would no longer use the expedited authority it has under the Choice Act to fire its senior executives. The department based its decision on a recent Justice Department ruling that some provisions in Choice are unconstitutional.

House Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-Md.) pointed to the recent DoJ decision in a Wednesday speech on the House floor.

President Barack Obama already has indicated that he will veto the bill.

While the House debates expanding the powers given to VA to discipline SESers, Veterans Affairs Committee Chairman Jeff Miller (R-Fla.) proposed another alternative to the VA Choice Act.

The VA Accountability First and Appeals Modernization Act addresses the very provision that the department announced it would no longer use following DoJ’s recent ruling.

The new bill would let senior executives appeal removals or demotions to a new Senior Executive Disciplinary Appeals Board, which would be made up of three employees at the department that the VA Secretary would appoint. This board would have 21 days to make a decision.

Rank-and-file federal employees could appeal their disciplinary decisions to the Merit Systems Protection Board itself. The board would have 60 days to make a decision, rather than the 21 days executives have under the VA Choice Act.

For all appeals, the new disciplinary board and MSPB must support its decisions using “substantial evidence,” rather than “preponderance of evidence,” as described in the 2014 Choice Act.

“The biggest obstacle standing in the way of VA reform is the department’s pervasive lack of accountability among employees at all levels,” Miller said in a statement. “Until this problem is fixed once and for all, long term efforts to reform VA are doomed to fail.”

Miller’s legislation also would ban all VA senior executives from receiving performance bonuses between 2017 and 2021.

It also includes provisions that address whistleblower protection rights and the disability appeals process, as well as stricter guidelines on executives who have been convicted of crimes.

Despite concerns over the current provisions in the VA Choice Act, the House moved forward with the new legislation that would expand the questionable disciplinary authorities.

Additionally, the Government Reform Act would let agencies adopt a disciplinary procedure currently available to most other federal employees: agencies would be allowed to suspend SES members without pay for up to two weeks.

The bill also includes other provisions targeting the SES that would:

  • Extend the probationary period for SES members from one to two years.
  • Require SES members to use mandatory leave time if placed on administrative leave.
  • Eliminate the ability for SES members to retain their executive pay if they’re demoted to a civil service position.
  • Require that SES members get their performance requirements in writing 30 days before the beginning of an appraisal period.
  • Reassign SES members to another position within the service once every five years.
  • Require agencies to justify each SES position within their organizations to Congress once every two years.

Many of those provisions on the SES should look familiar. The new bill folds the near entirety of the Senior Executive Service Accountability Act, which Rep. Tim Walberg (R-Mich.) brought before the House Oversight and Government Reform Committee in January.

The Government Reform and Improvement Act also includes provisions that would:

  • Ban federal employees from accessing pornography from a government computer.
  • Extend the probationary period for all employees within the competitive service, in addition to the SES.
  • Require the Office of Personnel Management to submit an annual report to Congress on agencies’ use of official time.
  • Require the IRS to preserve any record it receives for at least three years.

H.R. 4361 first began as the Federal Information Systems Safeguards Act, which Rep. Gary Palmer (R-Ala.) introduced in January. The legislation, which clarifies agency leaders’ IT responsibilities, was reported favorably out of the House Oversight and Government Reform Committee.

The House considered the bill Wednesday under a structured rule.

“This is a compilation of ideas that have all been vetted individually,” Rep. Rob Woodall (R-Ga.) said Wednesday from the House floor. “We combined them together, again, independent ideas, but all focused around the idea of how do we give the taxpayer the best bang for their buck when it comes to America’s civil service system.”

Some lawmakers, unions and associations representing federal employees are speaking out against the bill.

“This legislation suggests more of an interest in the appearance of reforming and improving government than a real commitment to undertaking the hard work of understanding what the real problems are, working with stakeholders to craft a solution, and holding parties responsible to see improvements through to a conclusion,” said Jason Briefel, Senior Executives Association interim president, in a letter to House lawmakers.

The National Active and Retired Federal Employees Association (NARFE) wrote its own letter to House lawmakers, arguing that many provisions in the bill undo federal employees’ due process rights.

“Limits on due process rights for senior executives make them more susceptible to politically motivated reprisals, undermining the goal of a merit-based civil service and hearkening back to a spoils-based system operated by political appointees,” NARFE National President Richard Thissen wrote.

Del. Eleanor Holmes Norton (D-D.C.) introduced an amendment that would eliminate several provisions in the bill, including the changes to the removal process and probationary period.

Employees push back against SES changes

The American Federation of Government Employees (AFGE), which represents about 230,000 VA employees, spoke out against the latest VA legislation, arguing that the department’s employees will be held more accountable if they’re empowered to speak about the issues they see in the workplace.

“Chipping away at vital due process rights leaves these employees more exposed to retaliatory acts, cutting off a vital feedback channel for improving veterans’ care,” AFGE National President J. David Cox said. “Whistleblower protections can only do so much to right these wrongs, and the surest way to keep the VA accountable to veterans is stronger, not weaker due process rights.”

It’s unclear what the future holds for Miller’s legislation, as the Senate VA Committee is aggressively pushing its own omnibus, the Veterans First Act, which has its own provisions on senior executive accountability at the department.

Briefel said the House and Senate VA committees have yet to agree on what “flavor and type of accountability measures” new legislation should include.

And with little time left until the August recess, Congress is on a tight timeline to pass some sort of veterans legislation. A House aide told Federal News Radio that the goal is to move Miller’s bill before the August recess, but timelines were still being negotiated.