Opinion by Peter O'Rourke and Merrie Spaeth originally appeared in The Hill.
The Department of Veterans Affairs is abandoning a six-year-old law meant to make it easier to discipline or fire employees for misconduct or nonperformance. What’s going on? The headline in Government Executive, a daily publication for government employees, explains simply: “VA will no longer use its marquee civil service reform law to punish employees,” and the article notes, “The Biden administration unwinds a key Trump legislative victory, citing a series of setbacks the law has endured.”
The article caught our attention because the VA Accountability and Whistleblower Protection Act of 2017 was a bipartisan legislative victory to address a longstanding problem at the VA. But the law immediately came under attack by some inside and outside of the government who wanted to maintain the status quo. The law recognized that America’s veterans deserve a Department of Veterans Affairs workforce of the highest caliber and that employees who do not perform or who deserve to be fired for some reason should be removed.
Before Congress passed this law, VA employees who couldn’t or wouldn’t provide high-quality services to veterans were difficult to fire. This reality led to a “go along, get along” attitude that fostered a poor and retaliatory work environment for good employees — and often, tragic outcomes for veterans seeking VA care. Although these employment issues have been recognized as a government-wide issue for decades, it came to a head at the VA with a scandal in Phoenix in 2014, involving massive wait times in the VA health care system. For those who have forgotten, some veterans were on wait lists for health care appointments that, for some, never came through.
Accountability in the VA became a campaign issue in the 2016 presidential election. “Reform the VA” was a campaign promise of then-candidate Donald Trump’s, who recognized that the “go along, get along” attitude leading to lackadaisical government performance wasn’t acceptable and that allowing even a small percentage of employees to ignore the requirement for good service can affect an entire department’s performance.
Once in the White House, on April 27, 2017, Trump signed executive order 13793, “Improving the Accountability and Whistleblower Protection at the Department of Veterans Affairs,” and on June 23, 2017, he signed into law the VA Accountability and Whistleblower Protection Act. This was an important victory for those who know it can be difficult to fire federal employees, no matter how serious their misconduct or poor performance. At the time, Congress displayed a bipartisan consensus recognizing that problems at the VA were especially egregious because they affected the lives of veterans who had served their country. In short, problems with the VA health system have a direct impact on the health and wellbeing of veterans who deserve our thanks and respect.
The VA Accountability Act demonstrated a bold step forward — a commitment to take action against the difficult challenge of disciplining, demoting or removing federal employees for misconduct or poor performance. No law is perfect, of course, but even with federal court decisions that have narrowed its effect, this law’s passage represented a commitment to making necessary changes at the VA. To this day, despite Merit System Protection Board interference and some negative news coverage, we believe the need for the VA Accountability Act remains.
Certainly, we cannot allow the Biden administration, or any future administration, to simply ignore the law and give up on veterans who may still have difficulty obtaining needed services from the agency.
Instead of retreating, here’s what we need to do to improve and strengthen accountability at the VA. First, ensure that the VA Accountability Act applies to all VA employees, regardless of whether they’re covered under Title 5 or Title 38. Second, make clear that the Merit System Protection Board has no further role in disciplinary and performance cases and eliminate the “Douglas factors” — that is, circumstances that supervisors must consider when taking action against an employee for alleged misconduct. Third, make clear that the standard of proof for employees at the VA is “substantial.” These changes would alert lawmakers and VA leaders that accountability is absolutely necessary for those who are trusted with caring for our nation’s veterans.
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Members of Congress from both parties should not stand for any VA decision, willful or not, to ignore the law or portions of it. VA employees must be held to a high standard and employment at the agency should be an honor, not a right. Our veterans deserve a Department of Veterans Affairs that holds itself increasingly accountable and does not revert to failed ways of its past.
Peter O’Rourke is president of Veterans 4 America First Institute. He was acting secretary of the Department of Veterans Affairs in 2018 under President Trump, and was the executive director who set up the VA Office of Accountability and Whistleblower Protection.
Merrie Spaeth was director of media relations for the Reagan White House and served as a consultant to O’Rourke at the VA Office of Accountability and Whistleblower Protection.