Opinion: Fast-tracking VA firings makes for bad policy

The scandals that rocked the federal Department of Veterans Affairs last year rightly had some high-reaching consequences, including toppling secretary Eric K. Shinseki. Whether Shinseki’s successor, Robert McDonald, has been able to effect much of a cultural change within the department that provides, among other things, healthcare for some 6 million veterans is uncertain. But it is troubling that after revelations that veterans may have died while awaiting treatment within the VA system, and VA officials covered up the crisis with falsified “waitlists,” only a relative handful of VA employees have been held accountable.

Why? Congressional critics say the process for dismissing workers from the agency is too cumbersome and that the secretary needs more flexibility. So they crafted the VA Accountability Act of 2015, which the House approved this week, that would revamp the department’s disciplinary system by shortening the calendar from the time a worker is notified that he or she is getting fired and limiting the appeal process.

The problem is, the disciplinary system within the Department of Veterans Affairs is the same one used pretty much across-the-board within federal departments and is rooted in the long-lived concept of a civil service protected from the vagaries of politics (it replaced an atrocious patronage system). An argument might be made that the civil service system needs updating, but that’s not what the current VA critics are pushing.

Their approach targets one department alone, which risks creating a complex and confusing array of department-by-department treatment of federal civil service employees rather than a government-wide system that guarantees workers due process and a fair hearing before they can be dismissed. Those rights are backed up by a long history of legislation and court decisions.

In fact, the current move to make it easier to fire VA workers than those in other departments is a step backward to the era when civil servants were hired and fired as the spoils of winning an election, and as payoffs for campaign favors -- the very problem the civil service system was supposed to fix.

Few would argue that the VA does not need significant revisions in how it operates, including stronger oversight and more transparency to ensure the nation’s veterans are receiving the benefits they have earned. That’s particularly important for those facing life-threatening or debilitating diseases, including post-traumatic stress and other disorders and afflictions that have helped fuel disturbingly high levels of domestic violence and homelessness.

But this isn’t the way to do it. In fact, the VA Accountability Act also has some constitutional issues, which are being hashed out in federal court now in response to last year’s dismissal of Sharon Helman as director of the Phoenix VA hospital, where the scandal first erupted.

Helman was fired under the Veterans Access, Choice, and Accountability Act of 2014, which, among other things, applied the sped-up and more limited appeals process to senior executives, and laid the groundwork for the current bill. Helman argues in court filings that the new system, in which the ruling of an administrative law judge is final and not subject to review by the three-member Merit Services Protection Board, violates her right to due process as well as the “Appointments Clause” in Article II of the Constitution, which she says requires, among other things, presidential oversight of administrative law judges.

Whether Helman prevails is an open guess. If she does, the VA could always go back and fire her under the old regimen, which better protects her rights. But extending that same rushed system across the VA raises serious issues of fairness, and threatens a return to an era in which workers could be fired for the flimsiest of reasons, and without significant recourse.

These Congressional efforts are political moves, not true reform efforts, and are the wrong way to go. President Obama signed the measure that made it easier to fire executives, though he has threatened to veto this new bill if it clears the Senate. It’s unclear what he liked about last year’s bill beyond the fact that it gave his VA secretary more power. Obama’s Office of Management and Budget opposes the new bill, citing the Appointments Clause and due-process arguments, as well as the more pragmatic issue that applying these rules to just the VA will make it harder to recruit good people to work in the troubled department.

The best solution here would be for Congress to stop grandstanding, and for the Senate to let this bill die. If members of the House and the Senate feel civil service reforms are necessary, then they should draft the requisite legislation that would protect the rights of workers while meeting the public’s need for more efficient and accountable government services – no matter the agency.

Follow Scott Martelle on Twitter @smartelle.