Statement from Department of Veterans Affairs

Published On: May 05 2014 01:36:27 PM EDT

Employees at the Department of Veterans Affairs (VA) care deeply for every Veteran they are privileged to serve. VA has more than 330,000 employees, many of them Veterans themselves, who are expected and trained to live by our core values and ensure that Veterans receive the services and benefits they've earned and deserve.

While there is always more work to do, hardworking employees have driven VA's progress and improvement in recent years, including enrolling two million more Veterans in high-quality VA healthcare, reducing Veterans' homelessness by 24 percent, providing Post-9/11 GI Bill educational benefits to more than one million students, and decreasing the disability claims backlog by 34 more than 40 percent. Every day, our health care professionals provide an average of 236,000 appointments to Veterans and eligible family members.

These dedicated VA employees, including VA's senior executives, are critical to the Department's mission to serve Veterans, as is the need for strong and effective accountability and performance management for these individuals.

VA is committed to continuing its dialog with Congress about effective accountability and performance management throughout VA, including the SES within VA, but we believe the Department of Veterans Affairs Management Accountability Act of 2014 (H.R. 4031) would generate serious unintended consequences that would prove counterproductive. For example, any change that would single out VA employees for punishment or discharge could have a chilling effect on VA's ability to recruit and retain high-quality employees. That, in turn, could harm VA's ability to best serve Veterans as well as be an effective steward for the U.S. taxpayer. In addition, we believe employees who are removed would (and should) still retain due process protections, so any actions taken by the Secretary under this legislation could lead to lengthy litigation.

Further, the Secretary already has tools under current law and regulations to address the performance of SES managers who have not met acceptable standards. As Secretary Shinseki stated in a letter to Chairman of the House Committee on Veterans Affairs Jeff Miller on January 31, 2014, 'I believe VA has sufficient authority to take swift action to hold employees and executives accountable for performance.'"

BACKGROUND:

H.R. 4031 - Department of Veterans Affairs Management Accountability Act of 2014

H.R. 4031, the "Department of Veterans Affairs Management Accountability Act of 2014," would amend chapter 7 of title 38, United States Code, by adding a new section 713 that would, notwithstanding any other provision of law, enable the Secretary of Veterans Affairs to remove any individual from the Senior Executive Service (SES) if the Secretary determines the performance of the individual warrants such removal. The Secretary could remove the individual from Federal service or transfer the individual to a General Schedule position at any grade he determines appropriate.

The bill would require notice to the House and Senate Veterans' Affairs Committees within 30 days after removing an individual from the SES, and the reason for the removal. It provides that "[a] removal under this section shall be done in the same manner as the removal of a professional staff member employed by a Member of Congress."

Unintended Consequences of H.R. 4031

First, enactment of H.R. 4031 would have a chilling effect on VA's ability to recruit and retain high-quality leaders and managers, especially when VA is in competition with other Federal agencies for those leaders. Enactment of the bill would significantly diminish workplace protections for VA SES. This would jeopardize VA's ability to recruit senior managers from outside the Department as well as promising General Schedule employees that VA hopes to advance to SES leadership (a critical part of succession planning). We believe this change, if enacted, would diminish VA's ability to best serve Veterans, as well as be an effective steward for the U.S. taxpayer.

Second, we believe employees who are removed would (and should) still retain due process protections. Thus, actions taken by the Secretary under the authority provided by H.R. 4031 could still lead to lengthy litigation, even if the intent of the legislation was to make removal from the SES a non-appealable action.

Further, the Secretary already has tools under current law and established regulations to address executive performance. SES statutes give agencies the authority to manage executives and remove individuals from the SES who perform unacceptably. A career executive can be removed if rated unsatisfactory after an appraisal period. The law requires certain procedural steps within the agency that promote deliberation and fairness but cannot restrict the agency head's final action. An executive removed for performance has no appeal right. To encourage high performers to join the SES, the statute provides fallback to a position of a level at which they formerly excelled, which preserves the agency's long-term investment in the employee. The Secretary also has the ability to effect a reduction in pay as a response to poor performance, as well as reflect that judgment in performance evaluations and performance awards. Secretary Shinseki has utilized all of these tools to address performance and accountability.

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