Republican Pass Bill to Expedite the Firing of Federal Employees
only 15 days notice to fire, suspend or demote an employee
internal grievance processes would have to be completed within 21 days
Major Civil Service Reform Bill Heads to Trump’s Desk
Government Executive, By Eric Katz, June 13, 2017
The House on Tuesday passed 368-55 a bipartisan bill to expedite the firing of Veterans Affairs Department employees, sending reforms mostly Republican lawmakers have clamored for since scandal embroiled the agency three years ago to President Trump’s desk.
The Department of Veterans Affairs Accountability and Whistleblower Protection Act won overwhelming support and is expected to receive Trump’s signature quickly. The measure is friendlier to employees than previous efforts to reform the disciplinary process at VA, and proponents say it eliminates any concerns of constitutionality that arose in predecessor bills. The Senate approved the bill last week. Trump and VA Secretary David Shulkin, whose office helped craft the legislation, have already announced support for the measure.
House leadership spent much of Tuesday promoting the bill, calling it a significant step forward for civil service reform that was several years in the making. The House previously approved its own reform bill largely along partisan lines, but the Senate subsequently moved its own bill unanimously and the House opted to follow suit.
“Instead of listening, we have had a bureaucracy that is avoiding problems, creating waiting lists, avoiding accountability,” House Speaker Paul Ryan, R-Wis., said at a press briefing ahead of the vote. “The VA needs real reform, and this bill helps get that done.”
House Majority Leader Kevin McCarthy, R-Calif., said on the House floor Tuesday the VA workforce consists primarily of good employees, but allowing the worst performers to remain “undermines morale and makes the team ineffective.”
He added: “A few bad apples can spoil the whole barrel.” Ryan, McCarthy and other members of the House leadership joined several veterans service organizations at a briefing after the vote to again praise the legislation.
The bill would allow the department’s secretary to fire, suspend or demote an employee with only 15 days' notice. Employees would be able to appeal to the Merit Systems Protection Board in an expedited timeframe. MSPB would have 180 days to issue a decision, a much longer period than the 45-day timeline set up in the House bill. Employees would maintain the right to appeal an MSPB decision to federal court.
Unionized and Senior Executive Service employees would each have distinct, internal grievance processes that would have to be completed within 21 days. VA could revoke bonuses from employees found to have engaged in misconduct or poor performance prior to the award and dock retirement benefits from workers found guilty of a felony that could have affected their work.
Veterans service organizations such as Veterans of Foreign Wars, Disabled American Veterans and the American Legion announced their support for the bill, despite a few reservations. Conservative groups such as Concerned Veterans for America, which helped author the bill, also supported the measure.
The American Federation of Government Employees, which represents 230,000 VA employees, has condemned the bill, decrying in particular a change in the process for proving guilt. A provision of the measure would shift the burden of proof necessary to defend negative personnel actions, which would require a judge to uphold a department decision if it showed substantial evidence against the employee in question. Current statute requires VA to prove a majority of evidence supports its decision.
“I understand that bashing employees and taking away their rights is good politics, but it is bad government,” AFGE President J. David Cox said at a hearing last month. “I promise you that under this bill more employees will be fired for bad reasons than good reasons.”
Bill Valdez, president of the Senior Executives Association, was similarly opposed, saying in a letter last week that the bill would “only serve to exacerbate VA’s workforce management challenges.” Another provision of the bill would provide VA direct hire authority for medical center directors, which Valdez said -- coupled with the firing provisions -- could “trigger a return to the spoils system of patronage that was a hallmark of the federal civilian workforce” in the 19th century. Valdez said Congress should instead pursue a new personnel system that better rewards top performers while also holding bad apples accountable.
House Democrats conceded the bill was not the one they would have written, but insisted it would protect due process rights. Rep. Tim Walz, D-Minn., the ranking member on the House Veterans' Affairs Committee, praised his colleagues for working together following regular order.
“It’s not perfect in everyone’s mind,” Walz said. “Everyone compromised.”
Rep. Mark Takano, D-Calif., said the bill struck a balance between increased accountability and maintaining worker protections “far better than previous iterations.” The bill follows several attempts in the last Congress to streamline discipline at VA. A 2014 law reformed the process just for senior executives, but a federal court has ruled the provision unconstitutional and the department is no longer using the new authority it provided.
Rep. Phil Roe, R-Tenn., the House Veterans' Affairs Committee chairman, said after the bill passed it could serve as a blueprint for similar reforms across government, adding he expects his colleagues in the House Oversight and Government Reform Committee to look at the VA bill before possibly drafting broader legislation. He does not expect any legal challenges to the measure, but said it would hold up in court if there is opposition. Roe said he expects Trump to sign the bill as soon as his schedule allows it.