VA no longer using expedited SES firing authority after Justice decision

The Veterans Affairs Department decided it will no longer use the authority it has under current legislation to more quickly remove senior executives, based on a recent Justice Department decision ruling that some provisions in that bill are unconstitutional.

A VA official told the Senate Veterans Affairs Committee by email today that the department would no longer use the expedited removal authority under the Veterans Access, Choice and Accountability Act for Senior Executive Service members going forward.

This was in response to the committee’s inquiry over whether the department planned to make any policy changes after Attorney General Loretta Lynch’s May 31 announcement, committee spokeswoman Amanda Maddox told Federal News Radio.

The Justice Department’s ruling, and the VA’s decision to stop using the expedited VA Choice firing authority does not weaken the department’s commitment to accountability, Deputy VA Secretary Sloan Gibson said.

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“Under these circumstances, I believe it would be irresponsible to continue using that authority when other methods for disciplining senior executives exist,” he said in a statement to Federal News Radio.  “In fact, doing so would only hinder VA’s ability to hold senior officials accountable who have engaged in wrongdoing and make those actions stick.”

Instead, VA is opting to use the standard rules that apply for removing civil employees, the committee said. Under the Choice Act for example, VA executives can appeal to an administrative judge at the Merit Systems Protection Board and must receive a decision within 21 days. Going forward, MSPB would no longer have that expedited timeline for future VA cases, and executives would once again have the ability to appeal to the MSPB board itself, rather than an administrative judge.

This also means the VA Secretary will give 30-days notice before firing a senior executive, and SES members have seven days to respond, under standard civil service law, the committee said.

“It is outrageous and unconscionable that the VA is choosing to blatantly ignore all of the accountability reforms set in place by the Veterans Choice Act,” Senate Chairman Johnny Isakson (R-Ga.) said in a statement. “Two years ago, veterans were forced to wait too long for care because of incompetent executives. Since then, we’ve seen scandal after scandal emerge at the department. While some progress has been made to hold those responsible accountable, there is still a long way to go and choosing to ignore these key reforms is a slap in the face to our veterans.”

The Justice Department last month responded to an appeal from Sharon Helman, a VA senior executive who claimed that the final decision from an MSPB judge sustaining her removal from the department ultimately violated the Appointments Clause in the Constitution.

Lynch agreed with Helman’s argument on the notion that a federal employee — a MSPB administrative judge in this case — holds the final opinion on a senior executive’s future and could overrule a decision from a presidentially-appointed secretary, makes little sense.

Helman, the former director of the agency’s Phoenix, Arizona, medical center, was fired in 2014 soon after Congress passed the VA Choice Act. She appealed her removal to the Merit Systems Protection Board, which referred her case to an MSPB administrative judge as the Choice Act requires.

MSPB has reviewed five appeals cases from VA executives under the Choice Act, overturning three of them. Those decisions sparked many conversations from VA itself and members of Congress, prompting both entities to reexamine the 2014 Choice Act and question whether the legislation was working the way they intended it.

House VA Committee Chairman Jeff Miller (R-Fla.) said VA’s latest decision underscores the need for “civil service reform across the federal government that enables leaders to swiftly and efficiently discipline those who can’t or won’t do their jobs.”

“Everyone knows VA isn’t very good at disciplining employees, but this decision calls into question whether department leaders are even interested in doing so,” Miller said.

MSPB itself, along with the Senior Executives Association and other organizations, voiced concerns about the constitutionality of the VA Choice Act shortly after it was passed.

“Multiple parties in this battle have alleged that their will has been undermined and deference to their authority has been disregarded,” interm SEA President Jason Briefel said in an email to Federal News Radio. “But the Constitution is the law of the land and cannot be dismissed or ignored.”

The VA’s decision comes as Congress considers several alternatives to the VA Choice Act. The Senate VA Committee passed the Veterans First Act without amendment earlier in May. The bill includes new, faster procedures for firing both senior executives and other employees at the department.

The Senate VA Committee said it will continue to for its bill to get passed, since new legislation would be the only way to address this.

Miller has pushed the VA Accountability Act, which would shorten the window in which all employees at the department could appeal their firing or demotion.