VA Accountability First and Appeals Modernization Act of 2016
Floor Speech
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Mr. TAKANO. Mr. Chairman, I yield myself as much time as I may consume, and I rise in strong opposition to H.R. 5620.
Now, there is no dispute whether Congress should take action to increase accountability at the VA. On both sides of the aisle, we recognize that VA employees have a patriotic duty to provide veterans the care they have earned, and there should be consequences when they fail to meet that standard.
But we must also recognize that VA employees, nearly a third of whom are veterans themselves, have constitutional rights. In several ways, H.R. 5620 violates those rights and, therefore, will not achieve our shared goal of a more accountable VA workforce. In fact, passing this bill will move us further away from a strong accountability system that will improve the quality of service VA provides to veterans.
This flaw in the legislation is not without precedent. The accountability provisions included in the 2014 Veterans Choice Act could not be enforced after the Attorney General determined they violated due process rights. And President Obama threatened to veto a previous version of the bill, H.R. 1994, for the very same reason.
Now, unfortunately, the majority continues to treat the constitutional rights of VA employees as inconvenient obstacles to evade, instead of fundamental civil service protections to uphold.
The strict time requirements H.R. 5620 puts on administrative bodies, such as the Office of Personnel Management and the U.S. Merit Systems Protection Board, to decide appeals cases would meaningfully impact the ability of every VA employee to get a fair and proper hearing.
This bill improperly hands power to the VA Secretary with respect to setting standards for bonuses. According to the Non-Delegation Doctrine, Congress cannot shift its authority to agencies without providing an intelligent framework for carrying out that authority. As written, H.R. 5620 violates that doctrine.
Finally, I believe the majority's effort to institute new whistleblower provisions would be overturned for the same reason that the U.S. Attorney General's Office said it would not defend an unconstitutional section of the Choice Act: it violates the Appointments clause in the Constitution by allowing lower-level employees to have the final decisionmaking authority to decide whether an employee will be fired.
Now, these are more than minor legal concerns; they are reasons why VA employees who commit misconduct will not be held accountable when their terminations are challenged in court. We can pass H.R. 5620, but we will be right back here a year from now or 2 years from now when the law is deemed unconstitutional.
Our Senate colleagues have a bipartisan bill that includes accountability provisions that could serve as a foundation for legislation in the House. We had an opportunity to advance language that both parties and both Chambers can agree to, and I am disappointed that we are not pursuing that path.
I am also disappointed that this bill includes a moratorium on bonuses for VA's senior executives. Recruiting and retaining strong leadership at the VA is critical to its long-term success, and this provision will damage the Department's efforts to maintain a talented workforce that can address the underlying systematic issues that are causing poor performance.
Now I am not alone in this assessment. The American Legion, the Military Officers Association of America, and others have expressed reservations about this punitive approach to the VA's senior executives.
Finally, I am frustrated--I am particularly frustrated that the majority has attached to this bill a desperately needed bipartisan fix for the VA appeals process. The VA Appeals Modernization Act of 2016, introduced by my friend and colleague, Congresswoman Dina Titus, has unanimous support and would sail through the House and Senate on its own. It is nearly the product of 4 years of work, and both sides agree to it.
Yet, you would attach it to a bill that we cannot agree to. It makes no sense that we are holding up this magnificent legislation that both sides worked on and that was the hard work of my friend and colleague from Nevada.
This legislation would move the VA away from an inefficient and convoluted unified appeals process and replace it with differentiated lanes, which give veterans clear options after receiving an initial decision on a claim. In sum, it would allow veterans to have a clear answer and path forward on their appeal within 1 year from filing.
By attaching it to this bipartisan accountability bill, the majority is preventing VA appeals reform from moving forward, denying veterans the streamlined appeals process they deserve.
I strongly urge the majority to allow Congresswoman Titus' legislation to come to the floor as a stand-alone bill so we can accomplish a critical objective for the veterans community. Free the Titus bill. Let it come to the floor.
Now, the chairman talks about accountability and improving the culture at the VA. I would like to remind my friend from Florida that last week we heard testimony from the co-chairs of the Commission on Care. This Commission was appointed in a bipartisan way by the President, by the Speaker, by the minority leader of this House, and by the majority and minority leaders of the Senate; and the co-chairs gave us a report on their recommendations.
When asked about should there be an easier way to fire people, should there be a way to streamline the accountability process, to my surprise, they both answered ``no'' to a question posed by one of the Republican Members. They recommended that more investment and more time be devoted to leadership training within the VA.
They both lead private sector health organizations, and they both stated how they are obligated to the due process concerns with their employees. They were shocked at the relative under-appreciation for the personnel function at the VA.
They did not emphasize stripping away due process rights for workers. Instead, they strongly urged our committee to look at supporting the personnel function of the VA and improving leadership development and managerial skills of our managers.
So I recommend that we take this legislation back to committee, back to regular order, instead of considering it on a rushed basis and suspending the rules.
Mr. Chairman, all of us, Democrats and Republicans, believe in the need for stronger accountability for employees at the VA to ensure that our veterans get the care they deserve. Unfortunately, this legislation falls short of that goal.
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Mr. TAKANO. Mr. Chairman, I yield 5 minutes to the gentlewoman from Nevada (Ms. Titus).
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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I wish to comment on the assertion that it is the Attorney General's and the President's responsibility to enforce the law, as it does say that and as it is reflected in the Constitution. However, the Attorney General of the United States also has the duty to make sure that the taxpayers' money is well used. I often hear on the other side of the aisle a concern about unnecessary litigation or litigation that goes beyond the bounds of what is reasonable.
The Attorney General also has the obligation to take a look at the laws and to examine whether or not they would withstand constitutional muster. The American people do not demand of their Attorney General to litigate laws that are clearly unconstitutional. That would be a waste of money.
In the case of an accountability law and an accountability bill that clearly have flawed tools, tools which would be deemed unconstitutional, it would result in the following: it would result in managers taking actions against employees, money being spent on lawyers to dismiss these employees or otherwise discipline them, but employees being able to get their day in court and find that the provisions under which they are being disciplined are unconstitutional being reinstated after a lot of expense.
This is precisely why I would like to see this legislation go back to committee and for us to consult attorneys on both sides and not pass laws that are clearly going to not pass constitutional muster.
Yes, 81 amendments were filed because there are many problems with this legislation. Only 22 were ruled in order. I think we should go back to the drawing board and take the Senate legislation, which has bipartisan support, as a starting point.
As for the whistleblower protections, I have already stated my comments that these whistleblower protections in H.R. 5620 are also flawed. I believe that they would be ruled and deemed unconstitutional and, therefore, are also flawed.
Mr. Chairman, passing this legislation does not pass constitutional muster. It won't solve our problem. We need a real fix to improving VA accountability, and H.R. 5620 is not the solution.
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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I am concerned that the bill before us today will actually undermine whistleblower protections rather than strengthen them. The Office of Special Counsel echoes my concerns. Their statement regarding the bill reads: ``Section 8 of this act may undermine whistleblower protections and accountability by creating a new and unnecessary process for reporting concerns. Section 8 also creates an unreasonable expectation that supervisors will be able to evaluate an employee concern within 4 business days. This process is overly burdensome for employees and supervisors and may be entirely unworkable in many instances.''
We should go back to the drawing board. Let's go through regular order back in committee and not do this under the suspended rules and try to fix things on the floor of the House.
I continue the quote of the Special Counsel: ``This approach is not the best method for improving accountability or evaluating supervisory efforts to support and protect whistleblowers. OSC believes that reinforcing existing channels for reporting concerns would better protect the interests of VA whistleblowers.''
Whistleblowers are essential for proper oversight. Accountability measures that undermine whistleblowers or deter them from coming forward will make it harder. Again, the whistleblower protections in this bill may actually undermine our ability to protect them.
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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
I include in the Record a letter from the Office of Special Counsel to Representative Kirkpatrick praising her for her amendment. I understand the majority also supports the Kirkpatrick amendment, so it is bipartisan support. U.S. Office of Special Counsel, Washington, DC, September 13, 2016. Re Pending Legislation to Protect VA Whistleblowers. Hon. Ann Kirkpatrick, Washington, DC.
Dear Representative Kirkpatrick: The Office of Special Counsel (OSC) has received thousands of whistleblower retaliation complaints and disclosures from Department of Veterans Affairs (VA) employees. Based on this experience, we write to express our strong support for your amendment to H.R. 5620, the VA Accountability First and Appeals Modernization Act. Based on our review of the amendment, we believe it will advance the interests of VA whistleblowers.
Importantly, the amendment establishes the Office of Accountability and Whistleblower Protection (OAWP). OSC's ongoing work with VA whistleblowers will benefit from having a high- level point of contact with the statutory authority to identify, correct, and prevent threats to patient care and to discipline those responsible for creating them. The establishment of similar offices at other agencies, including the Federal Aviation Administration, has significantly improved the whistleblower experience at those agencies. And OAWP, with a Senate-confirmed leader, will have the authority and a mandate to make a significant difference.
For these and other reasons, we believe your amendment will best advance the interests of VA whistleblowers and the Veterans served by the Department. If you are in need of additional information, please contact Adam Miles, Deputy Special Counsel for Policy and Congressional Affairs, at 202- 254-3607. We appreciate the bipartisan support for stronger whistleblower protections for VA employees, as reflected in H.R. 5620, and believe this amendment will greatly enhance this effort. Sincerely, Carolyn N. Lerner.
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Mr. TAKANO. Mr. Chairman, I yield to the gentleman from Florida (Mr. Miller) to ask him a question.
Was the quotation the gentleman read from this letter of the special counsel to Mrs. Kirkpatrick?
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Mr. TAKANO. I yield to the gentleman.
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Mr. TAKANO. Yes, September 13. And it is regarding pending legislation to protect VA whistleblowers?
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Mr. TAKANO. The quotation was from that letter.
I want to clarify that letter from the Office of Special Counsel was in support of Mrs. Kirkpatrick's amendment, not in support of the entire bill H.R. 5620, and I am pleased that the majority joins us in support of that amendment.
My colleague, Chairman Miller, mentioned that we have already covered our concerns in the Choice Act, and President Obama lauded the Choice Act when signing it into law. I will remind the chairman that the court--not Congress and not the President or the VA--determine whether a law meets constitutional muster.
I am concerned that the strict and arbitrary time limits in section 3 of H.R. 5620 violate constitutional due process and notions of basic fairness.
The lack of any clear standard of misbehavior by a VA employee that would trigger the Secretary's new firing authority also concerns me. Courts have allowed less notice if the behavior of a civil servant threatens the safety of others, but due process may not be limited simply to make it more convenient for Federal managers to get rid of employees they don't like.
That is why my amendment would pass constitutional muster and achieve the chairman's stated policy outcome more effectively than section 3 of H.R. 5620. It would give the Secretary a brand new authority to immediately remove, without pay, any VA employee whose behavior threatens veterans.
My amendment would address many of the egregious examples of terrible VA employees whose behavior has literally threatened veterans' lives, like the employee who took a veteran to a crack house. Under my alternative, that VA employee would be immediately suspended without pay and fired after a fair investigation.
The problem with passing a bill that limits due process is that if it were to become law, a VA employee fired under this new authority would inevitably sue. By the time the case wound its way through the court system and potentially found to be an unconstitutional violation of due process, the VA would have to reinstate with back pay any employee fired under the authority.
Instead, I would urge us to replace section 3 with my amendment language, or the Senate's language in the Veterans First Act, which contains more fairness and due process while still bringing accountability to the VA.
In our criminal justice system, we are innocent until proven guilty. The same concept applies to due process for VA employees. They should get to tell their side of the story before losing their jobs for what could be a miscommunication, or worse, discrimination or retaliation on the part of their supervisor.
H.R. 5620 is bad policy that sets the VA apart from all other Federal agencies and will make it harder for the VA to recruit exceptional medical providers and managers.
H.R. 5620 would return us to the political spoils system that was so problematic before the advent of civil service protections.
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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
I think it is important that we consider the impact our actions will have on the hardworking frontline VA employees, many of whom are veterans themselves and even whom my friend from Florida, Chairman Miller, says the vast majority of whom are very good employees.
I include in the Record a letter from the American Federation of Government Employees. American Federation of Government Employees, AFL-CIO, Washington, DC, September 9, 2016. Re AFGE Opposition to H.R. 5620.
Dear Representative: I am writing on behalf of nearly 700,000 federal employees represented by the American Federation of Government Employees, AFL-CIO (AFGE), including 230,000 employees of the Department of Veterans Affairs (VA) to urge you to oppose H.R. 5620, a bill introduced by Representative Jeff Miller (R-FL) to provide for removal or demotion of VA employees, and for other purposes. The drastic reductions in due process rights for every frontline VA employee proposed by this bill represents another familiar attempt to weaken the VA by weakening its dedicated workforce.
Changes proposed by H.R. 5620, including reduced time to respond to notices of proposed removals, reduced time to appeal to the Merit System Protection Board (MSPB), the loss of MSPB rights if that agency is backlogged, and unfair processes for recouping bonuses and work expenses, will decrease accountability by subjecting vocal employees who speak up against mismanagement and patient harm to more retaliation and harassment. The bill also would directly undermine the Department's progress in filling vacancies and recruiting and retaining a strong VA workforce.
Shorter Notice of Proposed Removal: Under current law, VA employees, like most government employees, are entitled to at least thirty days' advance written notice before they are terminated or demoted (See 5 U.S.C. 7513(b)(1)). H.R. 5620 would reduce that notice period by two-thirds to only ten days. A ten-day period is completely inadequate for allowing an employee to respond to a notice of proposed removal or demotion, receive his or her evidence file, present an effective answer with supporting evidence and secure representation.
Loss of Additional Rights for Petformance-Based Removals: VA employees facing removal on poor performance would lose additional due process rights under this bill, making it nearly impossible to prepare an effective response. Currently, management must inform employees of specific instances of unacceptable performance and the critical elements for the position involved. (See 5 CFR 1201.22(b)(1).) The bill eliminates both these rights to essential information to prepare one's answer.
Reduced Time to File MSPB Appeal: Currently, employees seeking MSPB review of the agency's decision have 30 calendar days from effective date of the action or within 30 days of receipt of agency decision, whichever is later to file an MSPB appeal. H.R. 5620 would reduce that filing deadline by more than 75 percent to only 7 days after the date of the removal or demotion. This extremely tight filing deadline is likely to have a disproportionate effect on lower wage employees who cannot afford representation.
Loss of All MSPB Appeal Rights if MSPB Fails to Meet Shorter Timeframe: MSPB suffers from a chronic shortage of staff and other resources. Like H.R. 1994, Representative Miller's 2015 ``firing bill'' to eliminate the due process rights of every front-line VA employee, this bill would take away all MSPB appeal rights if a decision is not issued within 60 days, and instead, the VA's final decision would stand. AFGE is very concerned that this may violate constitutional due process. In addition, this is an extremely unrealistic time frame and employees will be the ones to suffer as a result. Recent MSPB data indicates an average processing time for initial Administrative Judge appeals of 93 days and average of 281 days for Board review.
``Safe Harbor'' for Whistleblower Claims Will Overburden the Office of Special Counsel and Harm Whistleblowers: Like H.R. 1994, this bill requires the Office of Special Counsel (OSC) to review all agency decisions of employees who file OSC whistleblower complaints. OSC is already facing a significant increase in claims and does not currently review agency decisions to remove or demote employees. This added responsibility will increase the OSC's backlog and encourage the filing of less meritorious whistleblower complaints. Complainants with more meritorious matters will be adversely affected by additional delays.
Reductions in Senior Executive Retirement Annuities: AFGE also urges you oppose this provision that would remove covered service in calculating the annuities of VA senior executives who have been convicted of certain crimes. Pension recoupment is unnecessary and punitive, and would set an extremely dangerous precedent throughout the federal government for requiring forfeiture of earned compensation.
Unfair Bonus Recoupment Process: H.R. 5620 provides the VA Secretary with unfettered discretion to set the criteria for recoupment of bonuses already paid to employees. In addition, the bill is ambiguous about the appeals process that employees could utilize to challenge an unfair bonus recoupment decision.
Unfair Process for Recoupment of Payments for Relocation and Other Work Expenses: H.R. 5620 would give management overly broad authority to recoup allegedly improper reimbursements of work-related expenses. This overly broad and possibly unconstitutional provision could lead to more mismanagement and targeting of employees. VA already has ample authority to recoup improper payments, and payments made through misfeasance and malfeasance. In addition, the Department already addressed abuse of relocation bonuses by eliminating its Appraised Value Offer program. The lack of appeal rights in the bill is likely to give rise to an unconstitutional taking. This provision would further erode the morale of the VA workforce and discourage employees from relocating to hard-to-recruit locations to fill vacancies.
Thank you for considering the views of AFGE. If you need more information, please contact Marilyn Park of my staff. Sincerely yours, J. David Cox, Sr., National President.
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Mr. TAKANO. The letter reads: ``The drastic reductions in due process rights for every frontline VA employee proposed by this bill represents another familiar attempt to weaken the VA by weakening its dedicated workforce.
``Changes proposed by H.R. 5620, including reduced time to respond to notices of proposed removals, reduced time to appeal to the Merit System Protection Board (MSPB), the loss of MSPB rights if that agency is backlogged, and unfair processes for recouping bonuses and work expenses, will decrease accountability by subjecting vocal employees who speak up against mismanagement and patient harm to more retaliation and harassment. The bill also would directly undermine the Department's progress in filling vacancies and recruiting and retaining a strong VA workforce.''
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Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, for all of the foregoing arguments that were made today, I urge all of my colleagues to vote ``no'' on H.R. 5620.
I yield back the balance of my time.
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Mr. TAKANO. Mr. Chair, I rise in opposition to the amendment.
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Mr. TAKANO. Mr. Chair, this amendment really changes nothing favorably, from our point of view, in H.R. 5620. It does not cure the fundamental flaws in the bill which relate to its possible unconstitutionality, and, therefore, I will oppose the amendment.
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Mr. TAKANO. Mr. Chair, I have no further comments, and I yield back the balance of my time.
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Mr. TAKANO. Mr. Chair, I demand a recorded vote.
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Mr. TAKANO. Mr. Chair, I rise in support of my amendment, which would ensure that any VA employee whose performance or misconduct threatens public health or safety, including the health and safety of veterans, be immediately suspended without pay.
Specifically, it replaces section 3 of H.R. 5620 with a new provision allowing the Secretary to take lawful and abrupt action in extreme cases in which immediate action is warranted.
My amendment would also give the Secretary the authority to remove a suspended employee, after a thorough investigation and review, if the Secretary determines removal is in the interest of public health and safety.
Both parties share the desire to protect veterans from mistreatment or harm, especially when they are seeking medical care at a VA hospital, but the current language in this bill will not accomplish that goal.
The process for removing dangerous employees in H.R. 5620 is unconstitutional, and any action it authorized against underperforming VA employees would not hold up in court. Instead of achieving the majority's stated outcome of removing VA employees whose misconduct harms veterans, this bill would produce expensive legal costs, and it would fail to hold bad employees accountable.
My amendment is specifically designed to make sure the Secretary has the authority to immediately suspend any VA employee whose behavior threatens the health and safety of veterans and that the suspended employee receives no pay while the investigation is carried out.
I urge my colleagues to support the amendment.
Mr. Chair,
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Mr. TAKANO. Mr. Chair, I would like to say that we on this side of the aisle do stand with veterans, and we do stand for accountability, and we do stand with the taxpayers. And that is precisely why we must oppose the unconstitutional provisions in H.R. 5620 for removing dangerous employees.
The current provisions we do believe are unconstitutional; and that is why, in the end, it will not protect veterans. Actually, it harms them more because these employees will be reinstated after the courts find the provisions that they were dismissed under--this bill, under this law, would be found unconstitutional, and they would be reinstated and a lot of taxpayer money would be wasted.
Yes, we stand with the veteran. Yes, we stand for the taxpayer. Yes, we stand for accountability.
I urge my colleagues to support my amendment, therefore, because we replace it with a constitutional alternative.
Mr. Chair, I yield back the balance of my time.
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Mr. TAKANO. Mr. Chair, I demand a recorded vote.
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Mr. TAKANO. Mr. Chair, as the designee of the gentlewoman from Arizona (Mrs. Kirkpatrick), I offer amendment No. 6.
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Mr. TAKANO. Mr. Chairman, I express my full support of Representative Kirkpatrick's amendment to H.R. 5620. I would like to thank Chairman Miller for working with Representative Kirkpatrick to develop a bipartisan amendment we all can support.
Whistleblowers are critical to uncovering and eliminating misconduct and wrongdoing at the Department of Veterans Affairs. Without them, serious issues like those discovered at the Phoenix VA facility may never have been brought to our attention. The courageous VA employees who chose to speak out deserve our respect and protection. We must create an environment in which whistleblowers expect appreciation, not retribution. Representative Kirkpatrick's amendment, which would create the VA Office of Accountability and Whistleblower Protection, will help us achieve that goal.
Representative Kirkpatrick's amendment has been developed in consultation with the Office of Special Counsel and includes language from the Senate's bipartisan Veterans First Act. The amendment would create an independent VA Office of Accountability and Whistleblower Protection, which would report directly to the VA Secretary. The office would staff an anonymous hotline and refer whistleblower complaints to the appropriate office or entity for investigation and investigate allegations of misconduct, retaliation, or poor performance of senior executives and supervisors.
Mr. Chairman, this amendment will create an environment in which whistleblowers are protected and misconduct is more quickly discovered and eliminated. I urge my colleagues to support Representative Kirkpatrick's amendment to H.R. 5620.
I yield back the balance of my time.
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Mr. TAKANO. Mr. Chair, as the designee of the gentlewoman from Florida (Ms.
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Mr. TAKANO. Mr. Chairman, I rise to offer the amendment on behalf of the gentlewoman from Florida (Ms. Frankel).
Congresswoman Frankel's amendment would honor American veterans disabled for life and support annual recognition of our Nation's servicemen and -women left permanently wounded, ill, or injured as a result of their service. If passed, it would recognize October 5 as an appropriate day to honor disabled veterans each year. This date coincides with the anniversary of the dedication of the American Veterans Disabled for Life Memorial in Washington, D.C.
The amendment is supported by the Disabled American Veterans and the Paralyzed Veterans of America. It was included in a House concurrent resolution that I was proud to cosponsor alongside Chairman Jeff Miller. It also passed the House as part of this Chamber's National Defense Authorization Act.
America's 3.6 million disabled veterans have honored us with their service and selfless duty. It is now our turn to honor them, and passing this amendment is one way to do so. I urge my colleagues to support this amendment.
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Mr. TAKANO. Mr. Chairman, I have no further speakers, and again, I urge my colleagues to support Representative Frankel's amendment.
I yield back the balance of my time.
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Mr. TAKANO. Mr. Chairman, as the designee of the gentleman from Arizona (Mr. Gallego), I offer amendment No. 11.
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Mr. TAKANO. Mr. Chairman, I rise to offer the amendment on behalf of my colleague from Arizona (Mr. Gallego).
Representative Gallego's amendment establishes the position of Director of Veterans Integrated Service Networks within the Office of the Under Secretary for Health in the VA.
Leadership vacancies are prevalent across the VA, particularly in terms of network and facility directors, and this amendment will provide the VA with additional flexibility to recruit medical center directors and VISN directors.
Within the 21 VISNs, there are 151 medical centers, 985 outpatient clinics, 135 community living centers, 103 domiciliary rehabilitation treatment programs, 300 readjustment counseling centers, and 70 mobile vet centers. Network directors have oversight of healthcare delivery for as many as 10 VA medical centers and numerous community-based outpatient clinics, nursing homes, and domiciliary centers.
Ensuring that the VA has all the tools necessary to fill and retain these leadership positions is critical to fulfilling the VHA's mission and providing quality, timely care to our veterans.
This amendment is included in H.R. 4011, the Delivering Opportunities for Care and Services for Veterans Act, otherwise known as DOCS for Vets Act, which the VA Secretary recently included amongst his top legislative priorities for the remainder of this Congress. The language also passed unanimously in the Senate Veterans Affairs' Committee as part of the bipartisan Vets First Act.
I urge my colleagues to support this amendment.
Mr. Chair,
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Mr. TAKANO. Mr. Chairman, I urge my colleagues to support Representative Gallego's amendment.
Mr. Chairman, I yield back the balance of my time.
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