On Thursday, Senators Marco Rubio (R-Fla.), Jon Tester (D-Mont.), and Johnny Isakson (R-Ga.) introduced a bipartisan bill to reform the Department of Veterans Affairs (VA) amid continued reports of scandals, most recently at the Washington, D.C. branch. The new legislation avoids a legal problem with the House version of the bill passed in March.
“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 declared. He said the bill would “protect whistleblowers and the many VA employees who are passionate about caring for our veterans, while also empowering the VA to hold bad employees accountable.”
The bill comes a day after a VA watchdog warned about “troubling incidents” at the Washington, D.C. VA Medical Center. VA Inspector General Michael Missal recounted an incident where a patient was prepared for vascular surgery and already put under anesthesia when it was discovered the surgeon lacked the necessary instrument for the operation.
Missal’s team also found discolored surgical instruments unsuitable for use on patients at hand for use in the operating room. These findings came one month after the inspector general warned VA leadership about inventory and sterilization problems at the D.C. hospital.
“These further incidents raise serious concerns that surgeries and other procedures requiring sterile equipment may be performed with unsuitable equipment,” Missal wrote in his letter.
“It is angering to hear that veterans’ lives are being put at risk at the DC VA as a direct result of the negligence of senior VA officials there,” Concerned Veterans for America (CVA) Executive Director Mark Lucas declared in a statement. “The VA did the right thing by relieving the DC director from his position last month, but he’s still on the VA payroll and under current law it will be very difficult to fire him.”
Lucas endorsed Rubio’s new bill, the VA Accountability and Whistleblower Protection Act of 2017. This bill added protections for whistleblowers, a provision not included in the House bill which passed in March.
But the Senate bill also snuck in an improvement which would avoid recent legal troubles. On Tuesday, the Appeals Court for the Federal Circuit ruled the firing of convicted felon Sharon Helman, who directed the Phoenix VA center during the 2014 scandal, unconstitutional. Despite Helman’s guilt, the court ruled that the procedure used to come to a final determination on her employment violated the Constitution.
Before Helman’s firing, the Veterans Access, Choice, and Accountability Act of 2014 became law. As part of the process to empower the VA secretary to fire bad actors, and to expedite their removal from the VA, the bill allowed an administrative judge to issue a final decision, should an employee appeal.
The court argued that an administrative judge could not have the “final and unreviewable discretion to affirm or overturn the decision of a cabinet-level official,” namely the VA secretary. This ultimate decision is a “significant duty” and not a “ministerial task,” so administrative judges, “hired as employees,” cannot perform it.
This is an example of arcane rules developed by government employee unions making it almost impossible to fire bad actors. As it turns out, any federal public servant can appeal his or her firing to the Merit Systems Protection Board (MSPB) for review. Neither the 2014 law nor the 2017 House bill got rid of this system, they just expedited it.
The 2014 law called for an administrative judge to “issue a decision not later than 21 days after the date of the appeal,” while the 2017 bill stipulated that an “administrative judge shall expedite any such appeal … and … shall issue a final and complete decision not later than 45 business days after the date of the appeal.”
In short, under the court’s ruling, the expedited process for firing — a key part of VA reform legislation — is unconstitutional.
But the VA Accountability and Whistleblower Protection Act of 2017 neatly circumvents this problem by directing the VA secretary to set up a separate internal grievance process that “takes fewer than 21 days.”
This bill “will give Secretary [David] Shulkin the authority he needs to hold department employees responsible for their actions — something he has repeatedly said is necessary in order for him to fix the toxic culture there,” CVA Policy Director Dan Caldwell declared.
Caldwell insisted that “this is not a partisan issue, this is not a partisan bill, and there is absolutely no excuse for Congress not to expedite moving this bill forward.”
Indeed, the list of cosponsors for the VA Accountability and Whistleblower Protection Act of 2017 includes members of both parties: Senators Bill Nelson (D-Fla.), John McCain (R-Ariz.), Jeanne Shaheen (D-N.H.), Jerry Moran (R-Kan.), and Tammy Baldwin (D-Wis.). Coincidentally, CVA targeted Baldwin, Nelson, and Tester in April ads supporting the House bill.
In a joint release with Rubio, Democrat Senator Jon Tester declared that “this bipartisan bill is a product of what happens when you put aside politics and work together.” He argued that the act “will hold bad employees accountable while protecting the hardworking folks who care for our veterans.”
In light of recent scandals, this bill cannot be passed quickly enough. In April, Secretary Shulkin noted that he could not immediately fire an employee who was caught watching porn on the job. Last June, the Houston VA was caught falsifying appointments, and this past December, an Oklahoma veteran died with maggots in his wound at the VA. Oh, and early this year, a GAO report revealed that VA employees worked over 1 million hours for unions on the taxpayers’ dime.
In light of these and other scandals, civil service reform — not just at the VA, but perhaps just as importantly at the Environmental Protection Agency (EPA) and in other branches — should receive bipartisan support. It is time for public sector unions (something even notorious liberal Franklin Delano Roosevelt warned about) to be reined in.
It starts with this new VA accountability act, but it cannot end there. Taxpayers — and veterans — deserve better.
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