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Federal Court Rules Firing of Felon Phoenix VA Director Unconstitutional

On Tuesday, the Appeals Court for the Federal Circuit ruled that the firing of former Phoenix Veterans Affairs (VA) Director Sharon Helman, a convicted felon, was unconstitutional. While this does not mean Helman will return to work, the ruling may strike a powerful blow against VA accountability reform.

"Today's ruling underscores yet again the need for swift congressional action to afford the Secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans' trust in VA care or services," VA Secretary David Shulkin declared in a statement. He praised H.R. 1259, the VA Accountability First Act of 2017 — which has passed the U.S. House of Representatives but not the U.S. Senate — as "a vital step toward providing the tools necessary to address misconduct while ensuring due process."

The problem is, the Federal Appeals Court ruling struck down portions of a 2014 law meant to expedite the firing process at the VA as unconstitutional, and the act before Congress seems vulnerable to the very same legal attacks.

Sharon Helman was at the center of the original VA scandal in 2014, and was fired by VA Secretary Robert McDonald in November of that year, after the Veterans Access, Choice, and Accountability Act of 2014 became law in August. Under Helman's tenure, the Phoenix branch became the national epicenter of the scandal, with veterans dying because of long waits for care.

McDonald fired Helman for three reasons: charges related to falsified appointment data, retaliation against whistleblowers, and the failure to disclose gifts on her conflict-of-interest statements. Here's where it gets interesting: a merit system judge threw out the first two charges, but upheld her termination based on the unreported gifts.

In other words, Helman got off scot free from the scandal, but was fired because she accepted $50,000 in gifts without reporting them. The gifts came from Dennis "Max" Lewis, a former VA executive who had mentored Helman before going into private business as a lobbyist with a company that secured millions of dollars in VA contracts. The gifts included a $11,000 family vacation to Disneyland, spa and resort visits, air fare, and concert tickets. Helman was sentenced to two years probation in 2016.

But Helman challenged her termination, and in June of last year, U.S. Attorney General Loretta Lynch informed Congress that her Justice Department would not contest Helman's claim that the federal firing procedures used against her were unconstitutional. Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans' Affairs, declared, "Today, the Obama Administration sent a message loud and clear to felons. You will be coddled and protected at the Department of Veterans Affairs, which even before this decision was routinely tolerating egregious behavior among employees."