- The Washington Times - Sunday, November 30, 2014

The Department of Veterans Affairs and Congress are battling over whether the VA is firing employees fast enough as part of a major management overhaul, but legal analysts say even the five-day notice the administration has settled on is too short and employees who have been fired could sue to get their jobs back — with taxpayers on the hook for back pay.

Veterans Affairs officials said they came up with the five-day notice based on the advice of their attorneys, though members of Congress said even that was too long because it gives targeted employees a chance to retire and collect lifetime benefits. Lawmakers said the legislation they wrote to give the VA new firing authority was not drafted to allow for any notice.

Cheri Cannon, a partner at the District of Columbia law firm Tully Rinckey PLLC, said that law is unconstitutional because firing a federal employee is considered a “taking” of personal property, and the Constitution guarantees due process in those circumstances — meaning a chance for the employee to challenge the termination.

“The law itself as written is not constitutional. Every federal employment lawyer in D.C., including those at VA, know that,” she said. “What they did to somewhat mitigate that is they’re giving these employees a five-day right to respond that you normally would have a lot more time for.”

Most federal agencies give employees 30 days to respond to charges before termination or other disciplinary action, she said. Even those who have committed crimes typically are given seven days to present their side of the story.

The VA’s firing power has been one of the central issues as Congress tries to help the troubled department clean up from a scandal in which whistleblowers said bureaucratic bungling left veterans to die while waiting for care, stuck on secret waitlists.

Members of Congress have demanded more, and quicker, firings as a way of sending a message to VA employees that bad behavior won’t be tolerated.

VA officials said they also want to weed out bad actors, but Deputy Secretary Sloan Gibson told lawmakers that VA officials believe some notice is needed to make sure cases don’t get overturned on appeal. If not, taxpayers could be responsible for covering back pay and legal fees, in addition to having the poorly performing employee back on the job, he said.

A House Veterans’ Affairs Committee aide said the VA should “follow the law as it was written, without adding extra red tape or appeals to the process.”

When the VA has a case to fire someone or take other disciplinary action, the department tells the employee and allows five days for the employee to respond to the charges. The employee is then terminated, stops receiving pay and is allowed to begin an appeal process shortened under the reform law. The employee must submit an appeal within seven days of being fired, and the civil service Merit Systems Protection Board must make a decision within 21 days. The process used to take more than a year, but is supposed to be completed in a month under the new law.

About 1,000 employees could be fired and another 5,000 face proposed disciplinary action, Secretary Robert McDonald said, though it takes time to complete investigations and build airtight cases against employees.

Sufficient notice

Some members of Congress are aware of the legal clash over giving workers notice, but still aren’t happy with the resulting retirements and protections.

“I understand that a Supreme Court decision necessitated the five-day rule and VA needs to abide by it; however, I don’t necessarily like it,” said Sen. Richard Burr, North Carolina Republican and ranking member of the Senate Veterans’ Affairs Committee.

Lawyers familiar with federal employment said the VA needs to give employees sufficient notice. For most federal employees, a job counts as personal property. Before the government can take away that property, it must give a worker time to respond to charges orally or in writing.

“This is not made up, not something where they’re trying to avoid the law,” said Paul Secunda, professor of law and director of the labor and employment law program at Marquette University Law School. “If they resign, they resign, but that doesn’t mean you’re excused from following the dictates of due process. That’s considered basic fairness.”

Rep. Michael H. Michaud, Maine Democrat and ranking member on the House Veterans’ Affairs subcommittee on health, said the department should be relentless in using the expanded firing power, but conceded that the VA may need to “take certain steps to build strong and irrefutable cases against poor employees to ensure the dismissal and disciplinary actions stick,” said Dan Rafter, a spokesman for Mr. Michaud.

Ms. Cannon speculated that courts would not find five days sufficient notice because seven days is the shortest time frame she has seen in other agencies and cases.

“I’d say no because you’ve got other provisions in the law that gives [dismissed employees] seven days,” she said. “What’s the magic with five?”

A VA spokeswoman did not provide any case law to justify the five-day policy but said it “gives VA executives an abbreviated opportunity to respond before employment is terminated, which is the foundation of due process.”

Mr. Secunda said he didn’t know specifically where the VA found that five days would be adequate notice, but he suspected that department attorneys had done their homework and found the short time period in some previous cases.

Still, he said, the debate on Capitol Hill shows lawmakers sometimes fail to understand that the Constitution trumps new laws.

“Listening to the congressmen rail against the deputy secretary showed to me they’re not very sophisticated when it comes to understanding how the Constitution and statutes work together,” he said.

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