H.R.1259 – VA Accountability First Act of 2017

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Week ending March 17, 2017

H.R.1259 – VA Accountability First Act of 2017

Brief

The bill would ‘would provide the Secretary of the Department of Veterans Affairs (VA) with the authority to expeditiously remove, demote, or suspend any VA employee, including Senior Executive Service (SES) employees, based on performance or misconduct. It would also: provide improved protections for whistleblowers; allow the Secretary to reduce an employee’s federal pension if he or she is convicted of a felony that influenced his or her job at VA; recoup a bonus provided to an employee who engaged in misconduct or poor performance prior to receiving the bonus; and allow the Secretary to recoup any relocation expenses that were authorized for a VA employee only through the employee’s ill-gotten means, such as fraud, waste, or malfeasance.’

(Dissenting views)

(Full text of H.R. 1259 at congress.gov)

Sponsor:  Rep. Roe, David P. [R-TN-1] (Introduced 02/28/2017)

Status: Passed House /

VOTES and FLOOR ACTION

HOUSE

On Passage: On passage Passed by recorded vote: 237 – 178 (Roll no. 168)

House Amendments:

An amendment, offered by Mr. Roe (TN), numbered 1 printed in Part A of House Report 115-39 to insert “to or” after the word “paid” on page 20, line 15. On agreeing to the Roe (TN) amendment; Agreed to by voice vote

An amendment, offered by Mr. Walz, numbered 2 printed in Part A of House Report 115-39 to grant the VA Secretary improved authorities to hold VA senior executives and employees accountable, protects employees’ constitutionally guaranteed due process rights, and protects employees’ collective bargaining rights under federal law. On agreeing to the Walz amendment; Failed by recorded vote: 194 – 223 (Roll no. 165).

An amendment, offered by Ms. Kuster (NH), numbered 4 printed in Part A of House Report 115-39 to include as prohibited personnel practices as described in the whistleblower protection subsection of section 3 with those defined in 38 USC 733(c). On agreeing to the Kuster (NH) amendment; Agreed to by voice vote.

An amendment, in the nature of a substitute offered by Mr. Takano, numbered 9 printed in Part A of House Report 115-39 to provide for the suspension and removal of VA employees for performance or misconduct that is a threat to public health and safety in place of the proposed removal process. On agreeing to the Takano amendment; Failed by recorded vote: 183 – 232 (Roll no. 166)

An amendment, offered by Mr. Taylor, numbered 6 printed in Part A of House Report 115-39 to require the Veterans Administration to provide a semi-annual report to the House and Senate Committees on Veterans Affairs outlining all instances of Senior Executives who are detailed to a new position within the agency. The report will contain details on the purpose of the reassignment as well as the costs associated with the reassignment On agreeing to the Taylor amendment; Agreed to by voice vote

An amendment, offered by Ms. Tenney, numbered 7 printed in Part A of House Report 115-39 to require that bonuses awarded to senior-level executives within the Department of Veterans Affairs be reported to Congress on an annual basis. On agreeing to the Tenney amendment; Agreed to by voice vote

An amendment, offered by Ms. Kuster (NH), numbered 8 printed in House Report 115-39 to require VA supervisors to develop performance plans for employees, to include steps taken to address poor performance. It would also improve training for supervisors. On agreeing to the Kuster (NH) amendment; Agreed to by voice vote

An amendment, in the nature of a substitute offered by Mr. Takano, numbered 9 printed in Part A of House Report 115-39 to provide for the suspension and removal of VA employees for performance or misconduct that is a threat to public health and safety in place of the proposed removal process.

Motion to recommit: On motion to recommit with instructions Failed by recorded vote: 189 – 229 (Roll no. 167)

Text of the motion:

he House proceeded with 10 minutes of debate on the motion to recommit with instructions. The instructions contained in the motion seek to require the bill to be reported back to the House with an amendment to add language to the bill further defining protections to whistleblowers who file complaints.

SENATE

On Passage:

Procedural Actions:

Senate Amendments:

COST AND IMPACT

Cost to the taxpayers:  The Committee believes that enactment of this bill would result in no additional direct spending over the 2018-2022 period.

Pay-as-you-go requirements:  Data not available

Regulatory and Other Impact: Data not available

Dynamic Scoring:   Data not available

Tax Complexity:  Not applicable to this bill.

Earmark Certification:      H.R. 1259 does not contain any Congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9 of rule XXI of the Rules of the House of Representatives.

Duplication of programs: the Committee finds that no provision of H.R. 1259 establishes or reauthorizes a program of the Federal Government known to be duplicative of another Federal program,

Direct Rule-Making:  H.R. 1259 would require the Secretary of the Department of Veterans Affairs, in consultation with the Office of Personnel Management, to prescribe regulations that may provide for the payment to the spouse or children of any individual whose federal annuity may be reduced by Section 4 of the bill.

Advisory Committee Statement: No advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act would be created by H.R.

1259.

Budget Authority: Data not available

Constitutional Authority:   Assumed.

More Bill Information:

DISSENTING VIEWS

 

We have serious concerns over H.R. 1259, particularly sections 3 and 9. We believe this bill, although claiming to provide additional means of accountability to the Department of Veterans Affairs (VA) would, in practice, make it more difficult to achieve substantive accountability while exacerbating VA’s culture of whistleblower retaliation and a toxic work environment that allows poorly performing managers to retaliate against frontline VA employees. Sections 3 and 9 would strip VA employees of some of their very basic protections under collective bargaining agreements that ensure all employees are treated fairly by management. This would allow for the disparate treatment of VA employees compared to other federal employees, aggravating VA’s recruitment and retention challenge. Almost one third of VA employees are veterans, and it is unfair to treat them differently that other federal employees. With an employee shortage of over 47,000, the Committee’s work should be focused on creating an environment that attracts talented, hardworking, employees passionate about delivering care and benefits to our veterans. In addition, we dissent over the failure of this Committee to consider this bill under regular order, and the rush to bring this bill to a full Committee markup with only 48 hours to review the legislation.

We strongly agree with the need for greater accountability at the VA, and VA’s inability to follow its own laws and policies to discipline employees is unacceptable. If managers are making poor decisions or failing, they need to be held accountable instead of being able to shift blame to hard-working frontline employees. The VA employees we have subpoenaed before this Committee that VA has failed to hold accountable due to process-fouls were not assisted by unions or permitted to use collective bargaining grievance procedures.

Section 3 of H.R. 1259, covering VA employees under title 5 federal employment law, would remove employees’ union-negotiated alternative dispute resolution mechanisms and grievance procedures with respect to removal, demotion or suspension greater than 14-days. It would only permit VA employees to use statutory procedures that would reduce the time period for an employee to respond to allegations of poor performance or misconduct, and reduce the time period to appeal a disciplinary action before the Merit Systems Protection Board. It would also supersede any collective bargaining agreement-negotiated grievance or review procedures provided for federal employees under the law–reducing employees’ due process rights. In effect, without collective bargaining procedures to protect rank and file employees, bad managers would be emboldened to use these new statutory procedures as weapons against the employees who dare to speak up or blow the whistle, knowing that those employees would have few protections.

Section 9 would strip VA healthcare providers of the ability to elect collective bargaining-negotiated grievance procedures in all cases involving a question of professional conduct or competence–no matter how minor. Currently under VA’s own title 38 employment laws, healthcare providers are permitted to grieve disciplinary actions under collective bargaining procedures in minor cases, and in major cases subject to removal, demotion, or suspension if the case does not involve a question of professional conduct or competence. Section 9 would strip away these rights from the frontline providers charged with the vital mission of providing

healthcare to veterans.

Furthermore, this bill was not considered through regular order, and rushed to a full Committee markup. The Majority missed a key opportunity to develop bipartisan legislation that will truly bring accountability to the VA. This legislation significantly departed from “accountability” legislation considered last congress. Committee members were given only 48 hours to review the legislation. It did not receive a legislative hearing. Without input from stakeholders and who would be responsible for implementing the procedures under this bill, we were denied an opportunity to understand some of the potentially unforeseen consequences of enacting such legislation into law.

This is why we supported three amendments during the full Committee markup that would have given us additional opportunities to hold poorly performing employees accountable and continue to protect frontline employees’ collective bargaining rights. One amendment would have given the VA an additional tool to hold employees accountable under bipartisan legislation vetted by Veteran Service Organizations, the VA, and other important stakeholders last congress. Another amendment would have restored key protections for frontline employees. The last amendment would have allowed the VA to immediately remove an employee from the workplace who threatens the public health and safety of veterans, allowing us more time to work together as a Committee to develop bipartisan accountability legislation. Unfortunately, the Majority rejected these common-sense, pragmatic proposals to increase accountability quickly at the VA. We remain committed to working together to ensure veterans come first.

 

Timothy J. Walz.

Julia Brownley.

Mark Takano.

Kathleen M. Rice.

Ann M. Kuster.

Elizabeth H. Esty.

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