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Thursday, May 24, 2018

Reprinted with permission from ProPublica.

The Trump Administration’s Campaign to Weaken Civil Service Ramps Up at the VA

Last June, President Donald Trump fulfilled a campaign promise by signing a bipartisan bill to make it easier to fire employees of the Department of Veterans Affairs. The law, a rare rollback of the federal government’s strict civil-service job protections, was intended as a much-needed fix for an organization widely perceived as broken. “VA accountability is essential to making sure that our veterans are treated with the respect they have so richly earned through their blood, sweat and tears,” Trump said that day. “Those entrusted with the sacred duty of serving our veterans will be held accountable for the care they provide.”

At the time, proponents of the bill repeatedly emphasized that it would hold everyone — especially top officials — accountable: “senior executives,” stressed Senate Veterans Committee chair Johnny Isakson; “medical directors,” specified Trump; anyone who “undermined trust” in the VA, according to Veterans Affairs Secretary David Shulkin. Shulkin advocated for the measure, called the VA Accountability and Whistleblower Protection Act, by highlighting a case in which the agency had to wait 30 days to fire a worker caught watching porn with a patient.

“I do not see this as a tool that’s going to lead to mass firings,” Shulkin said last June. “I would never support that as secretary. I see this as a tool that’s going to be used on a small number of people, who clearly have deviated from accepted practices and norms.”

The law’s effect was nearly instantaneous: Firings rose 60 percent during the second half of 2017, after the law took effect, compared to the first half of 2017. Since June, the VA has removed 1,704 of its 370,000 employees.

But if top officials were the target of the law, a ProPublica investigation suggests the legislation misfired. In practice, the new law is overwhelmingly being used against the rank and file. Since it took effect, the VA has fired four senior leaders. The other 1,700 terminated people were low-level staffers with titles such as housekeeper (133 lost their jobs), nursing assistant (101 ousted) and food service worker (59 terminated), according to dataposted by the VA.

VA spokesman Curt Cashour defended the high proportion of low-ranking employees among the terminations. “Culture spans the entire organization,” he said in a statement. “As with any government agency or business, VA has more rank-and-file workers than senior leaders, and we hold them accountable when warranted, regardless of rank or position.”

Some of the fired workers surely deserved it. But some were guilty of minor infractions — such as arriving late to work — that wouldn’t previously have received as harsh a punishment, according to union officials and a letter sent to Shulkin on Feb. 26 by six Democratic senators.

Indeed, some Congress members who supported the bill are now expressing reservations. “My intention was not to get rid of housekeepers if these are things that can be corrected with training and HR and management,” said Tim Walz, D-Minn., the ranking member on the House Veterans Committee, at a hearing in mid-February. Sen. Tammy Duckworth, D-Ill., one of the bill’s co-sponsors, wrote Shulkin on Feb. 13, expressing concern that “the initial data indicates that removal efforts are being targeted on less senior, frontline employees rather than managers who play a critical role in establishing cultures of accountability that protect whistleblowers.”

What’s more, it’s not just junior VA staffers who are losing their jobs. Whistleblowers and people who filed discrimination complaints are among those being fired, in several cases reviewed by ProPublica. That means a law intended to protect whistleblowers may be doing the opposite. Retaliating against such employees remains illegal, but the new law makes it much harder for them to defend themselves.

“The VA feels they can do whatever they want with people with impunity,” said Eric Pines, an employment lawyer who represents multiple fired VA workers. “It’s a day-and-night feel since the Trump administration came into office.” (The Office of Special Counsel, or OSC, an independent federal agency that investigates retaliation against whistleblowers, said it’s too soon to say if complaints have increased since the law took effect.)

Trump’s State of the Union address suggested that the VA is just the beginning. The president wants to make it easier to terminate workers in every federal agency. “All Americans deserve accountability and respect, and that is what we are giving them,” the president said in the speech. “So tonight, I call on the Congress to empower every Cabinet secretary with the authority to reward good workers and to remove federal employees who undermine the public trust or fail the American people.”

Advocates of shrinking the federal bureaucracy cheered. Concerned Veterans for America, an organization backed by the Koch brothers, tweeted, “The VA Accountability Act has started to work, now President Trump is ready to replicate it across other federal agencies.” Rep. Barry Loudermilk, R-Ga., who had introduced legislation that would expedite firing across the federal government, issued a statement asserting that his bill was “answering President Trump’s call for Congress to empower Cabinet secretaries with the authority to inject merit back into the federal workforce.”

Trump’s remarks worried defenders of the civil service. “Make no mistake: this is a plan to politicize federal employment and allow the administration to hire and fire on the basis of politics rather than merit,” J. David Cox Sr., national president of the American Federation of Government Employees, said in a statement. The government workforce is different from the private sector, civil service advocates say, for good reason: It’s all that stands between the smooth administration of government services and a return to 19th century habits of politicians doling out jobs to unqualified cronies.

And some fear the experience at the VA shows that removing protections against firing will only encourage more firings. The agency had more than 40,000 job vacancies even before the wave of firings. If reducing the workforce makes the VA less effective, it will only reinforce the argument that the agency is broken and needs to be cleaned out. “We really do need to modernize the civil service,” said Max Stier, president of the Partnership for Public Service, a nonprofit providing leadership training to federal employees. “However, firing feds faster is not going to result in the better government we all want.”

In the Oval Office, Trump displays a portrait of Andrew Jackson, an iconoclastic populist whom he admires. Jackson was determined to shake up Washington when he took office in 1829. He was convinced that the then-tiny federal bureaucracy was corrupt, complacent and working to undermine him. Jackson made disloyalty to him a disqualification for government service and replaced officeholders with political allies and old pals. A senator famously defended Jackson’s appointments by saying “to the victor belong the spoils.”

The “spoils system” lasted until 1881, when a thwarted job-seeker named Charles Guiteau, believing his campaign support for James Garfield entitled him to a diplomatic post, shot the new president. Congress responded with the Pendleton Act, establishing that government hiring should be based on merit, not politics. The civil service expanded in step with federal power in the 20th century. As part of a wave of post-Watergate reforms, the Civil Service Reform Act of 1978 required cause to fire federal workers. The law established the Merit Systems Protection Board to decide disputes.

Employment lawyers say that advocates of reduced civil-service protections exaggerate the obstacles to firing federal workers. The process deters some managers from taking action, according to a Government Accountability Office review, while multiple surveys of federal supervisors concluded that poor performers amount to only 1 to 3 percent of the federal workforce. A more recent MSPB survey found supervisors split on whether federal employees have too many rights.

When federal agencies do try to remove an employee, they almost always succeed. In the past five years, the MSPB has reversed just 4 percent of the cases it reviewed, according to the board’s reports. The VA has a worse record: It loses at the MSPB 16 percent of the time. “The VA screws it up more than most,” said Debra D’Agostino, a lawyer who represents federal workers. “But that’s the fault of HR, not a problem with the law.”

The notion of making it easier to fire VA employees gained traction in 2014 after news broke that officials at the Phoenix VA hospital were manipulating records to hide long wait times. CVA, which was founded in 2012 and pushed for fast-track firings as early as 2013, seized on the scandal to organize a protest and lobby Congress to pass a new law curbing protections for VA officials. The resulting measure targeted only the most senior career employees. Among the first fired was the director of the offending Phoenix facility.

The Phoenix scandal hardened an already bad reputation for the VA, even though the agency’s health care remains popular with veterans. An independent assessment ordered up by the 2014 law concluded that long waits weren’t widespread and the quality of VA health care was generally as good or better than in other health systems. But politically, the damage was done.

CVA insisted that the 2014 reforms didn’t go far enough, and pushed for reducing protections for all VA employees, not just senior leaders. In 2015, a CVA policy task force proposed turning the VA into a government-chartered nonprofit corporation (like Amtrak), complete with the “authority to hire and fire employees in a manner consistent with that in the private sector.” (CVA didn’t answer a request for comment.)

Candidate Trump embraced CVA’s position. Three of the 10 proposals in his campaign’s plan to reform the VA involved firing or punishing bad employees. As president, Trump gave the former head of CVA’s policy task force, Darin Selnick, significant influence over veterans policy at the White House Domestic Policy Council. Selnick and like-minded allies in the administration have clashed with Shulkin over the direction of the VA, particularly over how much it should rely on private health care.

Meanwhile, the Accountability Act seemed to be something everyone could get behind. It passed the House 368 to 55 and the Senate by a voice vote. Shulkin, Trump and CVA have all touted it as a major accomplishment, as have lawmakers and veterans groups. The White House referred questions to the VA, where spokesman Cashour said the law “is one of the most significant federal civil service reforms in decades and is helping instill across the department the type of workforce accountability veterans and taxpayers deserve.”

The new law passed just after a federal appeals court overturned the dismissal of Sharon Helman as director of the Phoenix VA. Under the 2014 law, Helman could get an initial decision from an administrative judge at the MSPB but wasn’t permitted to appeal to the board’s three presidentially appointed members. The appeals court found that procedure unconstitutional on the grounds that it gave too much power to the administrative judge.

The new VA accountability law took a different approach, one that’s even tougher on fired employees. Now, senior executives can’t appeal to the MSPB at all. They have the right to sue in federal court, but that’s a lengthy and costly process. Lower-level employees can still bring their cases to the MSPB, but functionally can’t appeal to the three-member panel — because Trump hasn’t appointed anyone to it. “They’ve hamstrung the ability of the board to do its job,” said John Palguta, a retired MSPB official and expert on the federal workforce.

The new law makes it much quicker and easier for the VA to fire people. Instead of having to show that the majority of the evidence supports a firing, the agency needs only “substantial” evidence, a much lower threshold. “Almost the allegation itself is enough,” said Don Edge, a union officer in San Antonio.

Critics are calling that an unfair double standard in the wake of a blistering report by the VA’s inspector general that faulted Shulkin for misusing taxpayer resources on a trip to Europe. Shulkin has disputed the investigation’s findings, saying the IG’s office selectively omitted countervailing evidence and didn’t give him enough time to respond to the allegations.

That, critics say, is precisely how the new law treats VA employees. “Why is no one putting together how ironic this is that he can dispute this report and still have his job?” said Ibidun Roberts, an attorney with the American Federation of Government Employees. “Our employees are fired for much less.”

The VA now must provide written notice to fire an employee, but not 30 days’ notice as before. The employee has only seven days to respond, instead of as many as 30 in the past. Once the VA finalizes its decision, the employee has seven days to appeal, down from 30. The law also stripped the MSPB’s power to lighten penalties — the judge can uphold or reverse a firing, but can’t reduce it to a suspension.

Plaintiffs’ lawyers contend that discriminatory firings have increased. JP Chandler, a longtime member of the VA’s police force in Los Angeles, was fired in November after he failed a firearms test because of a problem with his eyeglasses. Failing the test wasn’t a fireable offense at the time (he could have been reassigned to another role), but managers changed the policy and then used it to fire Chandler. Chandler alleges the removal was retaliation for an age discrimination complaint he filed after being passed over for a promotion. That complaint is still pending with the Equal Employment Opportunity Commission. (Chandler said he also mistakenly left a shift a few hours early once.) “I have worked hard 60+ hours a week for the last 3 years for my department because I CARE for the Veterans and their families,” Chandler said in a written complaint he provided to ProPublica. “Suddenly, I became the ‘bad guy’ after filing an EEO complaint, and [was] targeted.”

A file clerk in West Virginia was fired after making an EEOC complaint that she needed accommodations for PTSD, according to her lawyer, Kevin Owen. Another of his clients, a veteran who worked as a cook, got fired for an argument that someone else started and became homeless. “Since he’s homeless he can’t pay his cellphone bill, and I don’t know how to find him,” Owen said.

Protecting whistleblowers was the second objective of the VA law. It created a new unit, the Office of Accountability and Whistleblower Protection, to field their complaints. But critics say the law is having the opposite effect, because whistleblowers are now less able to defend themselves against emboldened managers. “It makes people more afraid to come forward for fear of being fired and having less protection to challenge it,” said Cathie McQuiston, the AFGE’s deputy general counsel. Cashour, the VA spokesman, said employees who believe they face retaliation should contact the accountability office.

But some suspect the accountability office is acting on management’s behalf instead of defending people who reveal problems or wrongdoing. Doug Massey, a union official who works at the Board of Veterans Appeals, complained about a supervisor to Peter O’Rourke, the head of the accountability office. An investigation was launched, Massey said — but it focused on Massey, not the supervisor, and was conducted by an aide to the supervisor Massey had complained about. (The investigation centers on claims that Massey had created a hostile work environment, allegations he said were fabricated in retribution for his complaint.) O’Rourke, who became the VA’s chief of staff on Feb. 16, referred questions to Cashour, who disputed Massey’s account. “Those claims are false,” Cashour said, adding that the investigation of Massey was warranted. “VA does not tolerate retaliation.”

Another employee, Melissa Mason, was fired after bringing concerns to management. ProPublica reviewed hundreds of pages of emails, complaints and responses in her case — including internal documents written by the VA.

Ironically, the problem stemmed from the fact that Mason, then the chief of medical administration service for the VA system that covers the regions of Laredo, Corpus Christi and more in Texas, wanted to avoid the very problems that led to scandal in Phoenix. A 30-year veteran of the agency with a spotless record, Mason, 54, complained of a long backlog in medical appointments. When a supervisor wondered why her metrics looked bad, she answered that the problem was a lack of physicians. She didn’t want to reset the clock on appointments, which she said “would look like we are gaming the system … to make the number look good.”

Eventually, after Mason escalated the issue to a more senior supervisor, she was reprimanded for “not following instructions” on a training document, according to a memo obtained by ProPublica. Mason countered that she lacked staff and had received conflicting directions. The reprimand was eventually withdrawn.

Still, sensing hostility, Mason asked to be transferred to a different facility. She filed a whistleblower complaint with OSC, claiming mismanagement and retaliation.

In March 2017, Mason was given a performance-based bonus but two months later received her first-ever unsatisfactory review. She agreed to take a demotion and pay cut. At that point she was just hoping to stick it out until she became eligible to retire.

But Mason’s situation kept getting worse. She started facing investigations, which never went anywhere, for belittling a subordinate (who denied it ever happened) and for falsifying time cards (because she helped log out an employee who had to leave for a family emergency). She later discovered, through documents she obtained using the Freedom of Information Act, that officials said to be careful what documents they showed her because she’s a “documented whistleblower.”

With her termination looking increasingly likely, in August last year she expressed her frustrations in an email to VA chief Shulkin. “I don’t want to be a whistleblower,” she wrote. “I don’t want to be in the papers, on TV, interviewed or in front of Congress. … I told the truth. I don’t want to be punished for telling the truth. I just want to be left alone to do a job.”

On Aug. 22, Mason received notice that she was being fired under the new law for conduct unbecoming a federal employee, failure to follow policies and procedures, and lack of candor.

She left work only to be given a temporary reprieve: As long as OSC was investigating her whistleblower complaint, the VA couldn’t end her employment. OSC told the VA to let her return to work pending its review.

“Ms. Mason has cases that are currently active before the Office of Special Counsel and the Equal Employment Opportunity Commission,” said VA spokesman Cashour. “The Department of Veterans Affairs is cooperating fully in these matters to ensure her rights as a federal employee are protected. We cannot comment further on these pending matters.”

Today, Mason remains on the job — but she doesn’t feel shielded by the Whistleblower Protection Act. “I’m so tired of the BS,” she confided to a coworker in an instant message. “They can still mess with me. Just in a different way.”

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