The VA firings and the MSPB

Jonn stole my thunder by putting his post up first.  It’s not a real red meat piece either way, since it is muddled with various branches, too many villains to count, and chalk full of legal BS.  But for the 2 or 3 interested, I actually read the decision yesterday and broke down what happened.

Cross-linked from paying home.

 

There is a lot of confusion over what happened with VA Employees Rubens and Graves and how they were fired or demoted, and then later not only had the demotions overruled, but got back pay and lawyers fees.  Obviously people are super upset with it, as am I.  But it is important to look at who is actually responsible on this one, and who is not.  Most people think it is the VA protecting their own, and just letting people get away with whatever they want.  That’s not really the case.  This is actually an interesting look at the Federal Government as a whole, because it addresses all three branches of Government, and none of them escape this cloaked in glory.

Let’s start with the VA’s Inspector General report, looking only at Graves, because the other one is substantially similiar, but gets more convoluted in other ways.  So let’s just look at Graves.

Ms. Kimberly Graves was reassigned from her position as the Director of VBA’s Eastern Area Office to the position of Director, St. Paul VARO, effective October 19, 2014. VA paid $129,467.56 related to Ms. Graves’ PCS move. We determined that Ms. Graves also inappropriately used her position of authority for personal and financial benefit when she participated personally and substantially in creating the St. Paul VARO vacancy and then volunteering for the vacancy.

Mr. Antione Waller, former St. Paul VARO Director, told us Ms. Graves initiated discussion with him about relocating to the Philadelphia VARO. Once he expressed a willingness to accept the reassignment, she did an apparent “bait and switch.” She told him that the Philadelphia position was no longer available and he would be considered for the Baltimore VARO Director position. When he said he was not willing to move to Baltimore, Ms. Graves told him, “you will probably get another call, this probably won’t be the last conversation about Baltimore.” In an email, Ms. Beth McCoy, who at the time was the Assistant Deputy Under Secretary for Field Operations and Ms. Rubens’ subordinate, told Ms. Graves that she spoke to Mr. Waller and told him his name was already submitted to the VA Secretary for Baltimore, so “saying no now is not a clean or easy option.” Once the St. Paul Director position was vacant, Ms. Graves said she contacted Ms. Rubens and said, “I’d like to throw my name in for consideration for St. Paul … I feel like I’ve done my time and I’d like to put my name in.”

Ms. Rubens’ and Ms. Graves’ reassignments resulted in a significant decrease in job responsibilities, yet both retained their annual salaries—$181,497 and $173,949, respectively.

Put more succinctly, Ms. Graves convinced the St Paul director to go to Baltimore, signed off on the paperwork, and then immediately arranged her own transfer from being the East Regional Director to just being the St Paul Director.  At the same time, despite having less responsiblity, she not only kept the same salary, but she also got hundreds of thousands of dollars in relocation fees.

After both Congress and Veterans Service Organizations called for their firing, the VA Employees were each demoted:

The VA said in a statement that Diana Rubens and Kimberly Graves were demoted from senior executives — the highest rank for career employees — to general workers within the Veterans Benefits Administration….

This satisfied nearly no one.

Rep. Jeff Miller, R-Fla., chairman of the House Veterans Affairs Committee, said Rubens and Graves “clearly should have been fired,” adding that, “for those wondering whether VA is committed to real accountability for corrupt employees, VA leaders answered that question (Friday) with a resounding ‘no.'”

The VA’s failure to fire Rubens and Graves “gives me no hope the department will do the right thing and take steps to recover the more than $400,000 in taxpayer dollars Rubens and Graves fraudulently obtained,” Miller said. “The millions of American veterans who depend on VA and the hundreds of thousands of VA employees who are dedicated professionals deserve better than this broken status quo.”

Dale Barnett, national commander of the American Legion, said the VA’s failure to fire Rubens and Graves was “an insult and a disgrace to all veterans. Any promises that VA officials make about accountability in the future need to be taken with a grain of salt.”

So at this point, it appeared the VA was going soft on them, and it still appears that way.  But at least they were being demoted.  And the VA IG report specifically called for the relocation funds to be repaid.

And so, while we were unhappy, at least something was happening….until the Merit Systems Protection Board got involved.  Since most don’t know what that is, I’ll give you the wiki version:

The Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management.

When an employee of most Executive Branch agencies is separated from his or her position, or suspended for more than 14 work days, the employee can request that an employee of MSPB conduct a hearing into the matter by submitting an appeal, generally within 30 days.^[1] In that hearing, the agency will have to prove that the action was warranted and the employee will have the opportunity to present evidence that it was not. A decision of MSPB is binding unless set aside on appeal to federal court.

So anyway, both Graves and Rubens appealed their demotions.  And the Administrative Law Judges (ALJs) in both cases overturned the demotions, allowed them to keep the reimbursements for moving, paid them wages that they missed, and even made the VA pay for all legal bills.

Among others, House VA Chair Jeff Miller was incensed.  (Here he is discussing a different case, but it is in line with his thinking on the MSPB):

But there are members of Congress that view MSPB’s recent rulings as no more than a stonewall preventing the VA from removing underperforming employees.

Rep. Jeff Miller, R-Fla., as chairman of the House Committee on Veterans Affairs, has been a frequent critic of the MSPB’s rulings and said, in a statement on Feb. 8, that the board’s powers prevent the VA from being able to reform and recover from the scandals that have rocked it at late.

“MSPB coddles and protects misbehaving employees rather than facilitating fair and efficient discipline,” he said. “And as long as we have a system in place that requires a similar standard to discipline federal workers as it does to send criminals to prison, accountability problems at VA and across the government will only continue.”

So fast forward to yesterday.  My 7 month old was getting sleepy and making lots of noise, so my wife said to read to her.  I figure she doesn’t understand a word I am saying anyway, so I might as well read aloud the decision of Michele Szary Schroeder, Chief Administrative Judge that ruled on the Graves demotion.  My kid fell asleep, I got VERY angry.

The judge looked at 3 basic things.

1) Did the Agency prove its charge by preponderant evidence creating a rebuttable presumption that the transfer penalty was reasonable?  

She concluded that yes, the Agency proved that, saying:

The particular language of the statute at issue, Section 713(a)(1) of Title 38, authorizes the removal if the Secretary determines the performance or misconduct of the individual warrants it. This section gives very broad authority to the Secretary of Veterans Affairs in determining what constitutes misconduct for an employee in the Senior Executive Service at that Agency….

…by failing to fully extricate herself from the activities surrounding Mr. Waller’s reassignment before and after June 5th, coupled with taking the position he used to hold, equaled the appearance of an impropriety. Bottom line, Ms. Graves should have known taking the job would not look good to the public the VA serves.

So far so good.

2) Did Ms. Graves’ affirmative defenses of harmful procedural error and  a due process violation necessitate overruling the decision?

Again, she concluded that no, they did not.

I conclude that Ms. Graves did not establish by preponderant evidence that the VA committed a harmful procedural error and I further do not find any due process violation.

Again, so far so good.

3)  Having found the first two prongs met, can Ms. Graves establish that the penalty was unreasonable under the circumstances of this case?

Houston, we have our problem.

 Knowledge and acquiescence of Ms. Graves’ reassignment to St. Paul by Ms. Graves’ chain of command are readily apparent and if no one in her chain said, wait, this will not look right when they approved her reassignment, how can a penalty be imposed against Ms. Graves for not saying that.

I conclude Ms. Graves put forward sufficient evidence to prove the penalty of transferring her out of the Senior Executive Service was unreasonable. Therefore, she rebutted the presumption and established that the penalty was unreasonable under the circumstances of this case.

Basically the Judge found that there was so much of this type of activity going on in the upper echelons of VA that Ms Graves is being singled out for things that a whole slew of people ought be punished for, and thus her punishment is unjust.

If that doesn’t make sense to you, you aren’t alone.  It doesn’t make sense to anyone else I’ve talked to either.  Taken a step further, now how could ANYONE be punished, even if they did the exact same thing?  Any VA employee can apparently get an easier job, keep their pay, and get relocation bonuses.  The Judge in this case said that Graves had no way of knowing she would be punished since others were doing it, thereby creating itself the presumption that future individuals who do the same thing are going to again get off without any punishment.

Secretary McDonald was clearly incensed over the decision, as the previously linked Federal Times article makes clear:

A series of scandals at the VA, coupled with appeal restrictions designed solely for the agency as a result of the Veterans Access, Choice and Accountability Act of 2014, have made the MSPB the central battleground pitting accountability versus federal employee rights.

For its part, the MSPB has recently overturned or lessened several VA judgments, including the demotion of two Veterans Benefits Administration executives accused of using their positions for personal gain.

That sustained struggle bubbled over last week, when VA secretary Bob McDonald suggested in a Feb. 10 hearing of the House Committee on Veterans Affairs that the agency shift senior executives from Title 5 to Title 38 status, a move that would limit grievance and appeals avenues for executives.

So basically McDonald is looking to limit the Board by shifting where the employees are titled, taking the MSPB out of the equation.

For now, that appears to be the legislative answer.  What is odd, I mean truly odd, is that the MSPB has a disclaimer up on their main page now that (while not intended as such) seems to even indicate that Congress can and should take action of the disapprove of how this went down, to wit:

Recently, heightened attention has been paid to rulings by United States Merit Systems Protection Board (MSPB) administrative judges involving appeals filed by Senior Executive Service employees at the Department of Veterans Affairs under the Veterans Access, Choice and Accountability Act of 2014 (the 2014 Act). In response to these rulings, some have suggested that MSPB is protecting poor performing employees at the Department of Veterans Affairs. These suggestions are baseless and unfair.

As an independent, quasi-judicial agency, MSPB is required to apply laws created by Congress and legal precedent, as established by Federal courts, when adjudicating appeals. With respect to burdens of proof applied by MSPB, they are contained in title 5 of the United States Code. Moreover, it should be noted that the 2014 Act made no changes to these burdens of proof. Indeed, as MSPB noted in itsAn accessible version of this document may exist, click here to access that version August 21, 2014 Report to Congress Opens a New Window. August 21, 2014 Report to Congress Opens a New Window. , the 2014 Act made only two changes to the MSPB adjudication process: 1) it shortened the time under which appellants must file appeals and which MSPB administrative judges must issue decisions; and 2) it removed the full Board from the MSPB adjudication process. The 2014 Act did not change any statutory burden of proof to be applied in these appeals. Therefore, unless the law is changed, these statutory burdens of proof continue to apply, as they do in all other appeals filed at MSPB. 

None of this helps in the short term.  Both Rubens and Graves will get away what even the VA’s inspector general said was a brazen and perfidious attempt to get funds and the same salary for lessened responsibilities.  The Court itself found that the SES system at VA was so messed up that neither woman could anticipate being demoted, much less fired.   And VA itself is unable to do anything to correct the climate that exists without help from Congress.  And as soon as Congress starts trying to fix this, the SES lobby and unions will jump in with their opposition.

I realize this is long and outside the knowledge scope of most readers, but trust me, VA can’t fix the climate issue right now without some help.  Help they don’t seem to be getting from the Courts, the SES system or anyone else.  And when Congress tries to correct the issue, they will likely run into a brick wall.  This is all looking like it could be one heck of a fight in Congress, and virtually no media will probably report it, and even fewer people will understand the ramifications of what might transpire.

 

 

Category: Politics