Senators wonder if VA is abusing the Accountability & Whistleblower Protection Act

Jonathan Kaupanger
March 21, 2018 - 11:41 am

Photo by Olivier Douliery

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Is Veterans Affairs misusing the Accountability and Whistleblower Protection Act and firing the wrong employees? That’s what some Senators on the Committee on Veterans’ Affairs are trying to figure out. 

Senators Jon Tester (D-MT), Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), Sherrod Brown (D-OH), Mazie Hirono (D-HI) and Patty Murray (D-WA) sent a letter  to VA Secretary David Shulkin last month  stating their “disappointment” in how the VA is using “enhanced accountability authorities” given under last year’s law. 

“We have been told of multiple instances in which managers have attempted to remove employees for actions such as missing deadlines or moving slowly after an injury, even when they were first offenses.”

 The letter continues saying, “Unfortunately, we are hearing reports that not only has VA eliminated the use of performance improvement plans as a result of these new authorities, but you are no longer utilizing the table of penalties, and facilities are receiving guidance from VISNs that there should be no progressive discipline.”

Essentially, they are hearing that VA employees are afraid of being fired for doing one thing wrong.  Federal News Radio obtained a memo from Peter Shelby, VA’s Assistant Secretary for Human Resources and Administration, that says supervisors can now fire or demote employees if they miss one critical element in their performance plan. 

These “critical elements” sometimes can be confusing. Connecting Vets was able to look at two VA employee performance plans that included some of those critical elements:

“the ability to understand the pieces as a whole and appreciate the consequences of actions on the other parts of the system.  The successful individual thinks in context, knows how to link actions with others in the organization and demonstrates awareness of process, procedures and outcomes.  (S/he) possesses a big (whole) picture view of the world.”

Another supervisor rated their employee on “Excellence is the ability to strive for the highest quality and continuous improvement: to be thoughtful and decisive in leadership, accountable for actions, willing to admit mistakes and rigorous in correcting them.”

In both cases, the performance plan fails to explain how the employee should meet these critical elements.  Managers, on the other hand, have been given strict guidance on how to handle employee deficiencies.  VA’s Deputy Under Secretary for Field Operations, Willie C. Clark, Sr., sent a memo out to VA directors explaining the process. 

During monthly feedback sessions, if employees are unsuccessful at meeting any of their critical elements, they have two months to correct the deficiency.  “Employees are entitled to only one opportunity to correct a performance deficiency each appraisal year,” Clark said in the

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Also in their letter, the six senators wrote, “This law was passed by Congress, with the support of the department, in order to ensure that the department was able to more quickly remove employees who had behaved in abhorrent manner and veterans were suffering.  We urge you to ensure that these new authorities are not being abused by managers without additional review, or targeted at low-level employees rather than those interacting directly with veteran patients.”

According to the department’s Adverse Actions Report, since January of last year, VA has fired 2,872 employees. The Accountability law requires VA to give lawmakers a detailed report on how long it took to process employee adverse actions, the number of steps in the disciplinary process and the amount of appeals employees filed in response to disciplinary actions.  The VA’s three-page report arrived two months late and didn’t include much of the details requested by Congress.