Senators finally demand accountability from Merit Systems Protection Board

posted at 8:01 am on March 7, 2016 by Jazz Shaw

Back in the summer of 2014, Ed Morrissey identified the Merit Systems Protection Board (MSPB) as the “chokepoint for clearing out the deadwood” in the VA. Starting in January of this year I began ripping into this tiny, independent review board for their seeming inability to find any VA executives who have ever been guilty of anything. Things haven’t improved a bit since then, but the increased scrutiny which came from the outrageous reversals of relatively mild disciplinary action taken against four disgraced executives at the agency seem to have penetrated the public consciousness. Now a group of senators is calling for some accountability. (Government Executive)

“On behalf of our nation’s veterans who deserve better, we request analysis of the principles, laws, and regulations guiding the MSPB decision-making process in these cases,” said a March 2 letter to Merit Systems Protection Board Chairman Susan Tsui Grundmann from Sens. John McCain and Floyd Flake of Arizona; Sen. Ron Johnson of Wisconsin; and Sen. Jerry Moran of Kansas. “Furthermore, we request details as to what steps the MSPB is taking to ensure that these types of incidents do not happen again.”

The letter specifically referenced the MSPB’s recent decisions to reverse the VA’s demotions of senior executives Diana Rubens and Kimberly Graves, whom the department has reinstated to their jobs as director of the Veterans Benefits Administration’s Philadelphia office, and director of VBA’s St. Paul, Minn., regional office, respectively.

Notice that the Senate isn’t exactly asking for anyone’s head on a plate here. It’s hard to make the case that a demand for an analysis of the principles, laws, and regulations guiding the MSPB decision-making process would qualify as an inquisition. And being an independent agency, it’s unclear exactly what the Senate could do about it anyway, barring a change in the law that created the board in the first place.

But don’t tell that to MSPB Chairman Susan Tsui Grundmann. She finds the entire process distasteful.

Grundmann said in a February interview with Government Executive that some of the public comments made about the MSPB’s role in adjudicating those appeals were “disappointing” and “vitriolic,” adding that “MSPB judges do not put veterans’ lives at risk.” The MSPB sides with the agency in about roughly 90 percent of the cases that it receives from employees who appeal adverse personnel decisions against them.

It’s a spirited defense to be sure, but it completely fails the smell test. Two of the four most recent cases in question were absolutely situations where the lives of veterans were put at risk. Linda Weiss (the executive from the Albany, New York facility) oversaw workers who left veterans unattended, stole drugs intended for the patients and, in multiple cases, gave morphine to veterans with treatable conditions, hastening their deaths. Her disciplinary case was reversed and that doesn’t scratch the surface of the high profile instances where workers receive no discipline in the first place. In the extremely rare situations where the VA manages to find someone culpable enough to discipline, they turn around and appeal to the MSPB. Regardless of the 90% figure being tossed around, the employee still stands a reasonable chance of getting it overturned. And these are only the ones who did something so heinous that they managed to find themselves being disciplined at all.

Further, the system is being bogged down by appeals. Since sequestration went into effect, there have been some administrative (non-disciplinary) furloughs in the VA, reducing the workforce slightly. Huge numbers of furloughed employees appealed their termination to the MSPB, clogging the system with cases which were rejected nearly every time and preventing the board from hearing actual occurrences of misconduct.

Will the senators manage to get anything done through this course of action? Color me skeptical. The board already knows the intense scrutiny they’ve been under and it doesn’t seem to have modified their behavior a bit. A little more public shaming probably isn’t going to move the needle very much. Yet again, the only option which seems to be available is to reopen consideration of the 2014 Veterans Access, Choice and Accountability Act and introduce some amendments. One possible starting point would be to at least allow the MSPB judge to offer a lighter punishment than the one enacted by the administration. In the Weiss case, Chief Administrative Judge Arthur S. Joseph went on record saying that the employee should have been punished, though less severely, but “the only option is to reverse the action outright” under existing law.

Granted, they would probably still thwart much of the disciplinary process, but it might be better than nothing. And nothing is precisely what we’re stuck with today.

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