Lawmakers reach deal on legislation to make it easier to fire VA employees

WASHINGTON – Top lawmakers on Capitol Hill have reached a bipartisan deal on legislation to allow the Department of Veterans Affairs to take swift action to fire employees, an overhaul of long-guaranteed civil service protections that President Donald Trump promised he would enact to bring accountability to the troubled agency.

The agreement announced Thursday by key senators led by Marco Rubio, R-Fla., clears a path for passage of a dramatic change that has stalled in Congress for three years following a scandal over waiting times for medical appointments at VA hospitals.

Few managers or their staffs were let go for falsifying appointment records to look like they were meeting goals set by the agency, and the real delays resulted in the deaths of dozens of sick veterans as they waited to see a doctor. The episode embarrassed the Obama administration and cost the former president’s VA secretary his job.

While House Republicans, after the scandal, sought to let VA officials quickly terminate poor performers or employees involved in misconduct, federal employee unions and their Democratic allies in Congress resisted what they view as a move to undercut due-process rights the civil service was built on. Action in Congress was stalled.

But now the issue has gained new momentum with GOP control of the White House and Congress. The politics also have changed in the closely divided Senate, where a group backed by conservative billionaires Charles and David Koch is targeting vulnerable Democrats in states that Trump won.

The bill could be an early test of how far Congress is willing to go to erode job protections for 2 million civil servants across the government. With a president who promised to shake up a system that is awash in “waste, fraud and abuse,” conservatives see an opening to take on a bureaucracy they view as too slow to jettison poor performers and too coddled by unions.

“To fully reform the VA and provide our nation’s veterans with the quality care they were promised and deserve, we must ensure the department can efficiently dismiss employees who are not able or willing to do their jobs,” Rubio said in a statement. The bill is expected to clear a key committee within two weeks.

The new Accountability and Whistleblower Protection Act would shorten appeal times that can drag out now for years for employees facing discipline for performance or misconduct. It tones down language in a bill that cleared the House in March on largely party lines. But while co-sponsors Sens. Jon Tester, D-Mont., and Johnny Isakson, R-Ga., the top Democrat and the Republican on the Senate Veterans’ Affairs Committee, agreed to changes that would give employees 180 days to appeal disciplinary actions from the 30 in the House version, the change still would be a watershed for civil service protections.

Employees would not be paid while they appeal, as they are now. And senior executives, the leaders who make up the top 500 or so VA employees, would be held to a tougher standard than the rank-and-file, getting just 21 days to appeal to an internal board.

“We negotiated a bill that will meet the needs of our veterans,” Tester said in an interview. “In the end, I think this bill fully respects workers’ protections.”

He pushed back at the suggestion that new accountability rules for VA employees will be a model across the government. “VA has a unique responsibility for administering health care, and these employees can do things that result in life-or-death situations,” he said. “It’s unique.”

The deal came after warnings from the agency’s inspector general of severe problems with patient safety at VA Medical Center in Washington, where investigators found patients were at risk from poor medical oversight.

House Veterans’ Affairs Committee Chairman Phil Roe, R-Tenn., sponsor of the House measure, supports the changes, congressional aides said.

VA Secretary David Shulkin, the sole Obama holdover in Trump’s Cabinet, has made regular appearances on conservative media outlets to emphasize that holding employees accountable is his top priority. He said in an interview this week that his team has worked with lawmakers to balance employees’ rights with the need to take fast action against them where it is warranted.

“The big issue is, is there a way to ensure that the right people can be removed but you can still maintain due process for all employees?” Shulkin said.

He cited as Exhibit A the recent case of an employee at the VA Medical Center in Houston who was caught watching pornography with a patient in the patient’s room. The employee was given notice of his termination – but has 30 days on paid leave to appeal it, Shulkin said, a loophole that seems ridiculous given how serious the infraction.

Problem employees represent a “small minotiry of employees,” Shulkin said. But bad apples who linger on the payroll, either at work or getting paid at home, are hurting morale and recruitment at the government’s second-largest agency, which is short of thousands of doctors, nurses and other medical staff.

Shulkin acknowledged that managers do not always lay out a case for firing an employee, applying “inconsistent standards” on performance evaluations. He said leaders who should hold management jobs at VA hospitals are often moved around “because it’s too difficult to remove them.”

The union that represents more than 230,000 VA employees pledged a battle to stop the momentum in Congress.

“This legislation is the antithesis of accountability because it would allow corrupt or incompetent managers to get away with firing anyone who challenges them,” J. David Cox, Sr., president of the American Federation of Government Employees, said in a statement.

Cox said the bill abrogates workplace protections designed to protect government workers from disciplinary action that’s politically motivated, and called it a “dangerous precedent” just as the former FBI director, James Comey, this week became the latest casualty of an administration that’s “summarily firing” public officials.

“Many of the employees who blew the whistle on waitlists and other abuses at the VA faced retaliation for coming forward,” Cox said, “but they were protected by civil service rights and their union contract. This legislation would eliminate the only true protections they have.”

The bill has broad support, though, from the large veterans service organizations, including the American Legion and Veterans of Foreign Wars, who hear their constituents complain of substandard medical care in many states.

But it was the political advocacy group Concerned Veterans for America, part of a network of politically active nonprofit groups backed by the industrialist Koch brothers and other wealthy conservative donors, that is pushing hardest for change. In recent months CVA spent more than $100,000 targeting red-state Democrats and moderate Republicans in digital ads in 18 states, officials said.

“The constant drumbeat of concerns from veterans gives those members a choice,” said Dan Caldwell, the group’s policy director. “They can listen to D.C. special interests and entrenched bureaucrats or they can listen to VA groups.”

The scandal over manipulated wait times led to vows from the Obama administration that the employees at fault would be held accountable. Congress passed a law in 2014 giving VA greater power to discipline senior executives. But the agency stopped using its new authority after the Justice Department said it was likely unconstitutional, and this week a federal appeals court overturned the termination of the key figure in the wait-times case. Sponsors of the new Senate bill say they have crafted it in a way that would avoid the legal issues in the other case.

Then-secretary Robert McDonald also was criticized for giving wildly inflated estimates of how many employees had been removed from their jobs; it turned out to be just a handful.