Attorney General Loretta E. Lynch dropped a bombshell late last month by declining to represent the VA in a lawsuit that could reinstate the incompetent manager of a Veterans Affairs office.
Sharon Helman was fired from the VA in 2014 for overseeing unacceptable wait times and falsifying recordkeeping in Phoenix where 40 military vets died while waiting for treatment. She also accepted substantial gifts from lobbyists, which she never disclosed. The revelation of her malfeasance was the last straw for many lawmakers who had passed the bipartisan Veterans Access, Choice and Accountability Act in 2014, partly because Helman and others like her were rarely fired. More typically, questionably competent managers would be suspended — with full pay and even bonuses — and often reinstated.
Helman’s offenses were so egregious, however, that her boss, VA Secretary Robert McDonald, fired her. But Helman, a seasoned bureaucrat, sued to get her job back, claiming that the new law is unconstitutional. She and her lawyers argued that the law doesn’t allow senior executives to file appeals with the full Merit System Protection Board, only with an administrative judge at the board, whose ruling is final.
Lynch agreed, arguing that administrative judges are not presidential appointees and shouldn’t have the final say in whether to fire someone.
“That scheme, which impairs the President's ability to supervise the execution of the federal civil service laws, is inconsistent with the Appointments Clause,” Lynch wrote in explaining why her lawyers would not come to the VA’s aid in the matter.
As Government Executive reported, the Justice Department’s startling announcement put McDonald “in an impossible position.” McDonald had been brought in to clean house, but the administration wasn’t going to back him up.
He could continue to use the special authority within the Veterans Choice Act or abandon it and risk incurring the wrath of lawmakers who have been pressing for faster action. He decided to reject the authority.
“It is outrageous and unconscionable that the VA is choosing to blatantly ignore all of the accountability reforms set in place by the Veterans Choice Act,” Sen. Johnny Isakson (R-GA), the chair of the Senate Veterans’ Affairs Committee, said in a statement last week.
Isakson has vowed swift action to address the latest VA personnel crisis by pressing for passage of his Veterans First Act legislation. That measure would completely remove the Merit Systems Protection Board from the appeals process for senior executives. In that way, the administration would avoid more constitutional challenges, he said.
The Senate Veterans’ Affairs Committee unanimously passed his bill in May and it is awaiting approval by the full Senate.
Meanwhile, Rep. Jeff Miller (R-FL), chair of the House Veterans' Affairs Committee, declared, “Everyone knows VA isn’t very good at disciplining employees, but this decision calls into question whether department leaders are even interested in doing so."
Deputy VA Secretary Sloan Gibson told Government Executive that in light of the Justice Department's stand, “It would be irresponsible to continue using that authority [under the Choice Act] when other methods for disciplining senior executives exist.”
“In fact, doing so would only hinder VA’s ability to hold senior officials accountable who have engaged in wrongdoing and make those actions stick,” he said. Gibson added that his department’s decision “in no way diminishes our commitment to accountability.”
A merit system administrative judge considering Helman’s appeal tossed out the charge of falsifying veterans’ appointment dates and retaliating against whistleblowers. But the third charge of dealing with unlawful gifts confirmed her termination. Now it’s uncertain whether that third charge will stand up in light of the constitutional questions raised by the Justice Department.
Since the scandal first broke nearly two years ago, the star-crossed VA has been ridiculed for incompetence, waste and wrongdoing by irate lawmakers, veterans’ advocates, government watchdogs and others. Congress responded swiftly with enactment of a $16.3 billion reform package aimed at eliminating long waiting lines, improving the quality of health care delivered and getting rid of incompetent employees and dead wood.
An April Government Accountability Office audit found that the Veterans Health Administration, which spent $58 billion in fiscal year 2014 to provide care to 6.6 million veterans, remains vulnerable to manipulation of patient wait times and wait-time data.
Editor's Note: This story originally incorrectly said that Sen. Isakson plans to retire at the end of the year.