A bipartisan law was supposed to make it easier to fire bad
actors at the Department of Veterans Affairs. But it’s targeting the wrong
people.
By ISAAC ARNSDORF
March 12, 2018
This article is being
co-published by ProPublica.
Last June, President
Donald Trump fulfilled a campaign promise by signing a bipartisan bill to make
it easier to fire employees of the Department of Veterans Affairs. The law, a
rare rollback of the federal government’s strict civil-service job protections,
was intended as a much-needed fix for an organization widely perceived as
broken. “VA accountability is essential to making sure that our veterans are
treated with the respect they have so richly earned through their blood, sweat
and tears,” Trump said that day.
“Those entrusted with
the sacred duty of serving our veterans will be held accountable for the care
they provide.”
At the time,
proponents of the bill repeatedly emphasized that it would hold
everyone—especially top officials—accountable: “Senior executives,” stressed
Senate Veterans Committee chair Johnny Isakson; “medical directors,” specified
Trump; anyone who “undermined trust” in the VA, according to Veterans Affairs
Secretary David Shulkin. Shulkin advocated for the measure, called the VA
Accountability and Whistleblower Protection Act, by highlighting a case in which
the agency had to wait 30 days to fire a worker caught watching porn with a
patient.
“I do not see this as
a tool that’s going to lead to mass firings,” Shulkin said last June. “I would never support that as
secretary. I see this as a tool that’s going to be used on a small number of
people, who clearly have deviated from accepted practices and norms.”
The law’s effect was
nearly instantaneous: Firings rose 60 percent during the second half of 2017,
after the law took effect, compared to the first half of 2017. Since June, the
VA has removed 1,704 of its 370,000 employees.
But if top officials
were the target of the law, a ProPublica investigation suggests the legislation
misfired. In practice, the new law is overwhelmingly being used against the
rank and file. Since it took effect, the VA has fired four senior leaders. The
other 1,700 terminated people were low-level staffers with titles such as
housekeeper (133 lost their jobs), nursing assistant (101 ousted) and food
service worker (59 terminated), according to data posted by
the VA.
VA spokesman Curt
Cashour defended the high proportion of low-ranking employees among the
terminations. “Culture spans the entire organization,” he said in a statement.
“As with any government agency or business, VA has more rank-and-file workers
than senior leaders, and we hold them accountable when warranted, regardless of
rank or position.”
Some of the fired
workers surely deserved it. But some were guilty of minor infractions—such as
arriving late to work—that wouldn’t previously have received as harsh a
punishment, according to union officials and a letter sent to Shulkin on February 26 by six Democratic
senators.
Indeed, some Congress
members who supported the bill are now expressing reservations. “My intention
was not to get rid of housekeepers if these are things that can be corrected
with training and HR and management,” said Tim Walz, a Democrat from Minnesota
and the ranking member on the House veterans committee, at a hearing in
mid-February. Democratic Senator Tammy Duckworth of Illinois, one of the bill’s
co-sponsors, wrote to Shulkin on February 13, expressing concern that “the
initial data indicates that removal efforts are being targeted on less senior,
frontline employees rather than managers who play a critical role in
establishing cultures of accountability that protect whistleblowers.”
What’s more, it’s not
just junior VA staffers who are losing their jobs. Whistleblowers and people
who filed discrimination complaints are among those being fired, in several
cases reviewed by ProPublica. That means a law intended to protect whistleblowers
may be doing the opposite. Retaliating against such employees remains illegal,
but the new law makes it much harder for them to defend themselves.
“The VA feels they
can do whatever they want with people with impunity,” said Eric Pines, an
employment lawyer who represents multiple fired VA workers. “It’s a
day-and-night feel since the Trump administration came into office.” (The
Office of Special Counsel, or OSC, an independent federal agency that
investigates retaliation against whistleblowers, said it’s too soon to say if
complaints have increased since the law took effect.)
Trump’s State of the
Union address in January suggested that the VA is just the beginning. The
president wants to make it easier to terminate workers in every federal agency.
“All Americans deserve accountability and respect, and that is what we are
giving them,” the president said in the speech. “So tonight, I call on the
Congress to empower every Cabinet secretary with the authority to reward good
workers and to remove federal employees who undermine the public trust or fail
the American people.”
Advocates of
shrinking the federal bureaucracy cheered. Concerned Veterans for America
(CVA), an organization backed by the Koch brothers, tweeted, “The VA
Accountability Act has started to work, now President Trump is ready to
replicate it across other federal agencies.” Representative Barry Loudermilk, a
Republican from Georgia, who had introduced legislation that would expedite
firing across the federal government, issued a statement asserting that his
bill was “answering President Trump’s call for Congress to empower cabinet
secretaries with the authority to inject merit back into the federal
workforce.”
Trump’s remarks
worried defenders of the civil service. “Make no mistake: this is a plan to
politicize federal employment and allow the administration to hire and fire on
the basis of politics rather than merit,” J. David Cox Sr., national president
of the American Federation of Government Employees, said in a statement. The
government workforce is different from the private sector, civil service
advocates say, for good reason: It’s all that stands between the smooth
administration of government services and a return to 19th-century habits of
politicians doling out jobs to unqualified cronies.
And some fear the
experience at the VA shows that removing protections against firing will only
encourage more firings. The agency had more than 40,000 job vacancies even
before the wave of firings. If reducing the workforce makes the VA less
effective, it will only reinforce the argument that the agency is broken and
needs to be cleaned out. “We really do need to modernize the civil service,”
said Max Stier, president of the Partnership for Public Service, a nonprofit
providing leadership training to federal employees. “However, firing feds
faster is not going to result in the better government we all want.”
***
In
the Oval Office, Trump displays a portrait of Andrew Jackson, an
iconoclastic populist he admires. Jackson was determined to shake up Washington
when he took office in 1829. He was convinced that the then-tiny federal
bureaucracy was corrupt, complacent and working to undermine him. Jackson made
disloyalty to him a disqualification for government service and replaced
officeholders with political allies and old pals. A senator famously defended
Jackson’s appointments by saying “to the victor belong the spoils.”
The “spoils system”
lasted until 1881, when a thwarted job-seeker named Charles Guiteau, believing
his campaign support for James Garfield entitled him to a diplomatic post, shot
the new president. Congress responded with the Pendleton Act, establishing that
government hiring should be based on merit, not politics. The civil service
expanded in step with federal power in the 20th century. As part of a wave of
post-Watergate reforms, the Civil Service Reform Act of 1978 required cause to
fire federal workers. The law established the Merit Systems Protection Board
(MSPB) to decide disputes.
Employment lawyers
say that advocates of reduced civil-service protections exaggerate the
obstacles to firing federal workers. The process deters some managers from
taking action, according to a Government Accountability Office review, while multiple
surveys of federal supervisors concluded that poor performers amount to only 1 to 3 percent of
the federal workforce. A more recent MSPB survey found supervisors
split on whether federal employees have too many rights.
When federal agencies
do try to remove an employee, they almost always succeed. In the past five
years, the MSPB has reversed just 4 percent of the cases it reviewed, according
to the board’s reports. The VA has a worse record: It loses at the MSPB 16
percent of the time. “The VA screws it up more than most,” said Debra
D’Agostino, a lawyer who represents federal workers. “But that’s the fault of
HR, not a problem with the law.”
The notion of making
it easier to fire VA employees gained traction in 2014 after news broke that
officials at the Phoenix VA hospital were manipulating records to hide long
wait times. CVA, which was founded in 2012 and pushed for fast-track
firings as early as 2013, seized on the scandal to organize
a protest and lobby Congress to pass a new law curbing
protections for VA officials. The resulting measure targeted only the most
senior career employees. Among the first fired was the director of the
offending Phoenix facility.
The Phoenix scandal
hardened an already bad reputation for the VA, even though the agency’s health
care remains popular with veterans. An independent assessment ordered up by the
2014 law concluded that long waits
weren’t widespread and the quality of VA health care was generally as good or
better than in other health systems. But politically, the damage was done.
CVA insisted that the
2014 reforms didn’t go far enough, and pushed for reducing protections for all
VA employees, not just senior leaders. In 2015, a CVA policy task force
proposed turning the VA into a government-chartered nonprofit corporation (like
Amtrak), complete with the “authority to hire and fire employees in a manner
consistent with that in the private sector.” (CVA didn’t answer a request for
comment.)
Candidate Trump
embraced CVA’s position. Three of the 10 proposals in his campaign’s plan to reform the VA involved firing or punishing bad
employees. As president, Trump gave the former head of CVA’s policy task force,
Darin Selnick, significant influence over veterans policy at the White House
Domestic Policy Council. Selnick and like-minded allies in the administration
have clashed with Shulkin over the direction of the VA,
particularly over how much it should rely on private health care.
Meanwhile, the
Accountability Act seemed to be something everyone could get behind. It passed
the House 368 to 55 and the Senate by a voice vote. Shulkin, Trump and CVA have
all touted it as a major accomplishment, as have lawmakers and veterans groups. The White House referred questions to
the VA, where spokesman Cashour said the law “is one of the most significant
federal civil service reforms in decades and is helping instill across the
department the type of workforce accountability veterans and taxpayers
deserve.”
***
The
new law passed just after a federal appeals court overturned the
dismissal of Sharon Helman as director of the Phoenix VA. Under the 2014 law,
Helman could get an initial decision from an administrative judge at the MSPB but
wasn’t permitted to appeal to the board’s three presidentially appointed
members. The appeals court found that procedure unconstitutional on the grounds
that it gave too much power to the administrative judge.
The new VA
accountability law took a different approach, one that’s even tougher on fired
employees. Now, senior executives can’t appeal to the MSPB at all. They have
the right to sue in federal court, but that’s a lengthy and costly process.
Lower-level employees can still bring their cases to the MSPB, but functionally
can’t appeal to the three-member panel—because Trump hasn’t appointed anyone to
it.
“They’ve hamstrung
the ability of the board to do its job,” said John Palguta, a retired MSPB
official and expert on the federal workforce.
The new law makes it
much quicker and easier for the VA to fire people. Instead of having to show
that the majority of the evidence supports a firing, the agency needs only
“substantial” evidence, a much lower threshold. “Almost the allegation itself
is enough,” said Don Edge, a union officer in San Antonio.
Critics are calling
that an unfair double standard in the wake of a blistering report, by the VA’s
inspector general, that faulted Shulkin for misusing taxpayer resources on a
trip to Europe. Shulkin has disputed the investigation’s findings, saying the
IG’s office selectively omitted countervailing evidence and didn’t give him
enough time to respond to the allegations.
That, critics say, is
precisely how the new law treats VA employees. “Why is no one putting together
how ironic this is that he can dispute this report and still have his job?”
said Ibidun Roberts, an attorney with the American Federation of Government
Employees (AFGE). “Our employees are fired for much less.”
The VA now must
provide written notice to fire an employee, but not 30 days’ notice as before.
The employee has only seven days to respond, instead of as many as 30 in the
past. Once the VA finalizes its decision, the employee has seven days to
appeal, down from 30. The law also stripped the MSPB’s power to lighten
penalties—the judge can uphold or reverse a firing, but can’t reduce it to a
suspension.
Plaintiffs’ lawyers
contend that discriminatory firings have increased. JP Chandler, a longtime
member of the VA’s police force in Los Angeles, was fired in November after he
failed a firearms test because of a problem with his eyeglasses. Failing the
test wasn’t a fireable offense at the time (he could have been reassigned to
another role), but managers changed the policy and then used it to fire
Chandler. Chandler alleges the removal was retaliation for an age
discrimination complaint he filed after being passed over for a promotion. That
complaint is still pending with the Equal Employment Opportunity Commission.
(Chandler said he also mistakenly left a shift a few hours early once.) “I have
worked hard 60+ hours a week for the last 3 years for my department because I
CARE for the Veterans and their families,” Chandler said in a written complaint
he provided to ProPublica. “Suddenly, I became the ‘bad guy’ after filing an
EEO complaint, and [was] targeted.”
A file clerk in West
Virginia was fired after making an EEOC complaint that she needed
accommodations for PTSD, according to her lawyer, Kevin Owen. Another of his
clients, a veteran who worked as a cook, got fired for an argument that someone
else started and became homeless. “Since he’s homeless he can’t pay his
cellphone bill, and I don’t know how to find him,” Owen said.
***
Protecting
whistleblowers was the second objective of the VA law. It created a new
unit, the Office of Accountability and Whistleblower Protection, to field their
complaints. But critics say the law is having the opposite effect, because
whistleblowers are now less able to defend themselves against emboldened managers.
“It makes people more afraid to come forward for fear of being fired and having
less protection to challenge it,” said Cathie McQuiston, the AFGE’s deputy
general counsel. Cashour, the VA spokesman, said employees who believe they
face retaliation should contact the accountability office.
But some suspect the
accountability office is acting on management’s behalf instead of defending
people who reveal problems or wrongdoing. Doug Massey, a union official who
works at the Board of Veterans Appeals, complained about a
supervisor to Peter O’Rourke, the head of the accountability office. An
investigation was launched, Massey said—but it focused on Massey, not the
supervisor, and was conducted by an aide to the supervisor Massey had
complained about. (The investigation centers on claims that Massey had created
a hostile work environment, allegations he said were fabricated in retribution
for his complaint.) O’Rourke, who became the VA’s chief of staff on February
16, referred questions to Cashour, who disputed Massey’s account. “Those claims
are false,” Cashour said, adding that the investigation of Massey was
warranted. “VA does not tolerate retaliation.”
Another employee,
Melissa Mason, was fired after bringing concerns to management. ProPublica
reviewed hundreds of pages of emails, complaints and responses in her
case—including internal documents written by the VA.
Ironically, the
problem stemmed from the fact that Mason, then the chief of medical
administration service for the VA system that covers the regions of Laredo,
Corpus Christi and more in Texas, wanted to avoid the very problems that led to
scandal in Phoenix. A 30-year veteran of the agency with a spotless record,
Mason, 54, complained of a long backlog in medical appointments. When a supervisor
wondered why her metrics looked bad, she answered that the problem was a lack
of physicians. She didn’t want to reset the clock on appointments, which she
said “would look like we are gaming the system … to make the number look good.”
Eventually, after
Mason escalated the issue to a more senior supervisor, she was reprimanded for
“not following instructions” on a training document, according to a memo
obtained by ProPublica. Mason countered that she lacked staff and had received
conflicting directions. The reprimand was eventually withdrawn.
Still, sensing
hostility, Mason asked to be transferred to a different facility. She filed a
whistleblower complaint with OSC, claiming mismanagement and retaliation.
In March 2017, Mason
was given a performance-based bonus but two months later received her
first-ever unsatisfactory review. She agreed to take a demotion and pay cut. At
that point she was just hoping to stick it out until she became eligible to
retire.
But Mason’s situation
kept getting worse. She started facing investigations, which never went
anywhere, for belittling a subordinate (who denied it ever happened) and for
falsifying time cards (because she helped log out an employee who had to leave
for a family emergency). She later discovered, through documents she obtained
using the Freedom of Information Act, that officials said to be careful what
documents they showed her because she’s a “documented whistleblower.”
With her termination
looking increasingly likely, in August last year she expressed her frustrations
in an email to VA chief Shulkin. “I don’t want to be a whistleblower,” she
wrote. “I don’t want to be in the papers, on TV, interviewed or in front of
Congress. … I told the truth. I don’t want to be punished for telling the
truth. I just want to be left alone to do a job.”
On August 22, Mason
received notice that she was being fired under the new law for conduct
unbecoming a federal employee, failure to follow policies and procedures, and
lack of candor.
She left work only to
be given a temporary reprieve: As long as OSC was investigating her
whistleblower complaint, the VA couldn’t end her employment. OSC told the VA to
let her return to work pending its review.
“Ms. Mason has cases
that are currently active before the Office of Special Counsel and the Equal
Employment Opportunity Commission,” said VA spokesman Cashour. “The Department
of Veterans Affairs is cooperating fully in these matters to ensure her rights
as a federal employee are protected. We cannot comment further on these pending
matters.”
Today, Mason remains
on the job—but she doesn’t feel shielded by the Whistleblower Protection Act.
“I’m so tired of the BS,” she confided to a coworker in an instant message.
“They can still mess with me. Just in a different way.”
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