VA Accountability Act of 2015

Floor Speech

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Mr. TAKANO. Mr. Chairman, I am glad that my colleagues on the other side believe that we need to protect whistleblowers. It is precisely the at-will nature, making all of the 200,000 employees of the VA at-will employees, which makes them more vulnerable to the caprices of managers and makes them less likely to want to come forward as whistleblowers.

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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.

I just want to address again the fact that most of us did, in fact, vote for the Veterans Access, Choice and Accountability Act SES provision.

I want to reiterate that the courts--not Congress, not the President--determine whether a law we pass comports with the Constitution.

In hindsight, we should have given that SES provision closer scrutiny. We might have reacted a bit too hastily to the Phoenix scandal. We were all, I think, unified in our outrage.

However, that SES provision is now working its way through the court system and is very well possibly going to be overturned.

I reserve the balance of my time.

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Mr. TAKANO. Mr. Chairman, I just want to state for the record that, as of last year, under the current due process regime in effect at the VA, 872 permanent employees were removed, 487 more resigned in lieu of being fired, and 958 probationary employees were terminated.

So it is indeed very possible under the current due process regime for employees to be disciplined and dismissed. We need to work more closely with the VA to make sure that we empower managers to utilize the current processes in place.

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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.

I just want to point out we keep getting back to this point about everybody voted for the SES provision that is only now being extended to all employees now, but I want to remind my colleagues that that provision was part of a large, large conference report that included the $10 billion to address the problems we had in Phoenix. There were 1,500 graduate medical education slots. It was a huge, huge, huge bill.

There were a number of people who did have concerns about the provision that affected the SES employees, but given the enormity of the situation we were trying to address, I believe that many folks just believe that it was the best thing to do to come together on a bipartisan basis and pass a bill that addressed the situation in Phoenix.

I also want to address another issue. H.R. 1994 does not protect whistleblowers to the extent that whistleblowers are protected now under the current regime. In fact, it creates extra hurdles for whistleblowers, and I bring this point up because we would not know about the terrible egregious situation in Phoenix without whistleblowers coming forward.

What do I mean by that? This bill does nothing to protect the firing of a whistleblower who has not yet filed an official complaint before they even have the opportunity to report danger to patient safety, wrongdoing, malfeasance, or discrimination.

This bill will encourage bad employees to file for whistleblower status to prevent themselves from being fired, and these bad employees will overburden the office of special counsel with frivolous complaints.

Now, if you are an at-will employee and you are under threat of immediate dismissal, an immediate threat to your livelihood, that is even more of an intimidating situation for that employee not to want to come forward as a whistleblower.

Mr. Chairman, I believe that this bill actually worsens the situation for whistleblowers and does not protect them more; it protects them less. It gives them extra burdens.

I reserve the balance of my time.

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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.

I wish to address this issue of the appeals process that takes place post facto. The Supreme Court decisions and case law make very clear that Federal employees are entitled to due process on the front end and that this bill clearly does not meet that upfront, front-loaded due process moment.

Clearly, 45 days, the Board that makes these

decisions, if they don't make a decision, the decision for the firing stands, so they do not have to make a firm decision, and there is no appeal. There is no appeal. That decision is final.

I want to remind my colleagues that the Secretary of the VA hopefully is always appointed by the President with a sense of merit, but I remind you that these are political appointees confirmed by the Senate, as are the top appointees in any Federal department.

You do away with due process rights, you do away with the very cornerstone of a merit-based civil service system. You subject it long term to becoming a spoils system to be dismissed, rehired at the whim of any incoming administration.

I reserve the balance of my time.

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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.

I just want to remind my colleagues that the front-end provisions that were accorded to the SES employees, we stripped them completely of the front-end due process.

Only with a regulatory move by the VA itself, instituted a 5-day procedure of due process because they, too, believed that case law required at least some front end, and that was over the objections of many of my colleagues. That rule was over the objections of many of my colleagues.

H.R. 1994 strips away front-end due process for all 348,728 employees, of whom 114,740 are veterans. Before we paint them as faceless bureaucrats, one of every three VA employees is a veteran who has laid their life on the line for our country. I think we need to talk about our VA employees with respect.

Even my good friend, the chairman of the VA committee, has said the vast majority of the employees are good, hard-working, competent, good-intentioned people. They deserve to be treated fairly; they deserve to be treated with respect.

Certainly, our frontline employees, our frontline employees, we need to protect them from a capricious, politically motivated manager who will fire them at will and intimidate them into not being a whistleblower.

I reserve the balance of my time.

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Mr. TAKANO. I thank the gentleman from Michigan, my good friend, for offering his amendment. Reluctantly, I rise in opposition to the amendment offered by the gentleman and Representative Sinema.

Mr. Chairman, this amendment would require the IG to identify problem employees at the VA, and it would prohibit the VA from giving performance pay to these identified employees.

I believe this amendment could compromise the integrity of the VA inspector general and the ability of the VA IG to investigate whistleblower complaints and bring to light problems at the VA.

The amendment would force the IG to concentrate its efforts on identifying bad managers by name rather than focusing on recommending solutions to problems and conducting thorough and complete investigations.

Requiring the IG to forward anything submitted to the VA would interject Congress into the very manner in which the IG drafts and finalizes reports. This change would call into question the integrity of the investigations that Congress relies on to shape policy and to find solutions.

Finally, I believe that this amendment is vaguely drafted and that it raises more questions than it seeks to answer. Therefore, I urge my colleagues to oppose the amendment.

I reserve the balance of my time.

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Mr. TAKANO. Mr. Chairman, in Congress, we can all agree that greater accountability is sorely needed within the Department of Veterans Affairs. We are all outraged that VA employees whose misconduct has harmed veterans have remained in their jobs. Last summer, we were all horrified that the VA medical centers in Phoenix and elsewhere manipulated patient wait times. This spring, in Denver, we were frustrated by the huge cost overruns with no real accountability.

I agree with my Republican colleagues that the VA must do a better job of using its existing authorities to hold bad employees, such as these, accountable. Unfortunately, this lack of accountability has overshadowed the excellent work of the vast majority of VA employees--over a third of them veterans themselves, whose genuine caring and tireless efforts honor veterans' service to our Nation. I believe it is wrong to assume VA employees are guilty until proven innocent, and I believe that H.R. 1994 is the wrong way to achieve greater accountability at the VA.

This afternoon, I am offering an amendment in the nature of a substitute to H.R. 1994. The text of my amendment is based on my bill, H.R. 2999, the Fair VA Accountability Act. I urge all of my colleagues to support it today.

My substitute would provide real accountability at the VA in a manner that preserves the important due process rights of VA employees and protects our veterans, and my substitute would improve the status quo by giving VA an additional accountability mechanism.

It would allow VA to immediately fire, without pay, any VA employee whose misconduct presents a clear and present danger to public health and safety while providing adequate due process on the back end for such employees.

This standard comes from Supreme Court precedent regarding constitutional due process for Federal employees and mirrors a similar Department of Defense provision.

My substitute would mean that, if a VA employee's behavior threatened veterans' health or safety, VA could immediately fire that employee. Current law only allows VA to ask such an employee to leave work while still receiving pay.

My substitute would also cap paid administrative leave at 14 days so VA employees would not sit at home and collect a paycheck while fighting a disciplinary action.

My substitute would shield our bold VA whistleblowers by protecting existing laws and requiring the VA to backpay any whistleblower unjustly fired for reporting wrongdoing.

In sum, my substitute would provide the VA with the tools it needs to remove dangerous employees immediately and protect the health and safety of veterans and others, and my bill does so in a way which preserves important concepts of due process for VA employees.

These employees live in our communities and States. They are our friends and neighbors and sometimes our family members. Ensuring basic American notions of fairness is what my amendment in the nature of a substitute provides and, frankly, what H.R. 1994 does not.

I reserve the balance of my time.

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Mr. TAKANO. Mr. Chairman, my good friend and colleague, Chairman Miller of the Veterans' Affairs Committee, has implied that my clear and present danger standard in the substitute that I have offered is too narrow and does not give the Secretary enough tools to dismiss bad employees. I respectfully disagree.

Particularly in the case of the Phoenix VA, the hospital's director, Sharon Helman, clearly posed a threat to the health and safety of veterans. Under my substitute, she would have been immediately removed.

Similarly, many of the speakers on the other side of the aisle cited a crackhouse case where a VA employee took a veteran to a crackhouse.

Now, my substitute and the clear and present standard, the health and safety standard that we have put forward, would clearly have addressed that employee and would have made that employee immediately dismissible.

Let me remind you again that VA does have current title 5 procedures that they have been using to remove poor-performing employees.

We should encourage the VA to use them better, to use the tools that they have. I remind my colleagues that last year 872 permanent employees were removed, 487 more resigned in lieu of being fired, and 958 probationary employees were terminated.

Now, the fact that the VA wait list scandal emerged out of Phoenix was because we do have protections for whistleblowers. They could be strengthened.

Nevertheless, the current civil service protections, the due process protections, afforded those employees the security to move forward and to come forward as whistleblowers.

Again, my amendment in the form of a substitute fixes the deficiencies of my good friend Chairman Miller's bill.

I have said before that I believe his bill puts extra barriers in front of whistleblowers in coming forward. It complicates and makes more cumbersome their ability to come forward.

If you are an employee who is under threat of dismissal and immediately losing your livelihood, that is a huge, huge barrier to your coming forward as a whistleblower.

That is exactly what his bill would do. It would make everyone in the VA an at-will employee.

I reserve the balance of my time.

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