The VA firings and the MSPB

| February 16, 2016 | 29 Comments

Jonn stole my thunder by putting his post up first.  It’s not a real red meat piece either way, since it is muddled with various branches, too many villains to count, and chalk full of legal BS.  But for the 2 or 3 interested, I actually read the decision yesterday and broke down what happened.

Cross-linked from paying home.

MSPB

 

There is a lot of confusion over what happened with VA Employees Rubens and Graves and how they were fired or demoted, and then later not only had the demotions overruled, but got back pay and lawyers fees.  Obviously people are super upset with it, as am I.  But it is important to look at who is actually responsible on this one, and who is not.  Most people think it is the VA protecting their own, and just letting people get away with whatever they want.  That’s not really the case.  This is actually an interesting look at the Federal Government as a whole, because it addresses all three branches of Government, and none of them escape this cloaked in glory.

Let’s start with the VA’s Inspector General report, looking only at Graves, because the other one is substantially similiar, but gets more convoluted in other ways.  So let’s just look at Graves.

Ms. Kimberly Graves was reassigned from her position as the Director of VBA’s Eastern Area Office to the position of Director, St. Paul VARO, effective October 19, 2014. VA paid $129,467.56 related to Ms. Graves’ PCS move. We determined that Ms. Graves also inappropriately used her position of authority for personal and financial benefit when she participated personally and substantially in creating the St. Paul VARO vacancy and then volunteering for the vacancy.

Mr. Antione Waller, former St. Paul VARO Director, told us Ms. Graves initiated discussion with him about relocating to the Philadelphia VARO. Once he expressed a willingness to accept the reassignment, she did an apparent “bait and switch.” She told him that the Philadelphia position was no longer available and he would be considered for the Baltimore VARO Director position. When he said he was not willing to move to Baltimore, Ms. Graves told him, “you will probably get another call, this probably won’t be the last conversation about Baltimore.” In an email, Ms. Beth McCoy, who at the time was the Assistant Deputy Under Secretary for Field Operations and Ms. Rubens’ subordinate, told Ms. Graves that she spoke to Mr. Waller and told him his name was already submitted to the VA Secretary for Baltimore, so “saying no now is not a clean or easy option.” Once the St. Paul Director position was vacant, Ms. Graves said she contacted Ms. Rubens and said, “I’d like to throw my name in for consideration for St. Paul … I feel like I’ve done my time and I’d like to put my name in.”

Ms. Rubens’ and Ms. Graves’ reassignments resulted in a significant decrease in job responsibilities, yet both retained their annual salaries—$181,497 and $173,949, respectively.

Put more succinctly, Ms. Graves convinced the St Paul director to go to Baltimore, signed off on the paperwork, and then immediately arranged her own transfer from being the East Regional Director to just being the St Paul Director.  At the same time, despite having less responsiblity, she not only kept the same salary, but she also got hundreds of thousands of dollars in relocation fees.

After both Congress and Veterans Service Organizations called for their firing, the VA Employees were each demoted:

The VA said in a statement that Diana Rubens and Kimberly Graves were demoted from senior executives — the highest rank for career employees — to general workers within the Veterans Benefits Administration….

This satisfied nearly no one.

Rep. Jeff Miller, R-Fla., chairman of the House Veterans Affairs Committee, said Rubens and Graves “clearly should have been fired,” adding that, “for those wondering whether VA is committed to real accountability for corrupt employees, VA leaders answered that question (Friday) with a resounding ‘no.'”

The VA’s failure to fire Rubens and Graves “gives me no hope the department will do the right thing and take steps to recover the more than $400,000 in taxpayer dollars Rubens and Graves fraudulently obtained,” Miller said. “The millions of American veterans who depend on VA and the hundreds of thousands of VA employees who are dedicated professionals deserve better than this broken status quo.”

Dale Barnett, national commander of the American Legion, said the VA’s failure to fire Rubens and Graves was “an insult and a disgrace to all veterans. Any promises that VA officials make about accountability in the future need to be taken with a grain of salt.”

So at this point, it appeared the VA was going soft on them, and it still appears that way.  But at least they were being demoted.  And the VA IG report specifically called for the relocation funds to be repaid.

And so, while we were unhappy, at least something was happening….until the Merit Systems Protection Board got involved.  Since most don’t know what that is, I’ll give you the wiki version:

The Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management.

When an employee of most Executive Branch agencies is separated from his or her position, or suspended for more than 14 work days, the employee can request that an employee of MSPB conduct a hearing into the matter by submitting an appeal, generally within 30 days.[1] In that hearing, the agency will have to prove that the action was warranted and the employee will have the opportunity to present evidence that it was not. A decision of MSPB is binding unless set aside on appeal to federal court.

So anyway, both Graves and Rubens appealed their demotions.  And the Administrative Law Judges (ALJs) in both cases overturned the demotions, allowed them to keep the reimbursements for moving, paid them wages that they missed, and even made the VA pay for all legal bills.

Among others, House VA Chair Jeff Miller was incensed.  (Here he is discussing a different case, but it is in line with his thinking on the MSPB):

But there are members of Congress that view MSPB’s recent rulings as no more than a stonewall preventing the VA from removing underperforming employees.

Rep. Jeff Miller, R-Fla., as chairman of the House Committee on Veterans Affairs, has been a frequent critic of the MSPB’s rulings and said, in a statement on Feb. 8, that the board’s powers prevent the VA from being able to reform and recover from the scandals that have rocked it at late.

“MSPB coddles and protects misbehaving employees rather than facilitating fair and efficient discipline,” he said. “And as long as we have a system in place that requires a similar standard to discipline federal workers as it does to send criminals to prison, accountability problems at VA and across the government will only continue.”

So fast forward to yesterday.  My 7 month old was getting sleepy and making lots of noise, so my wife said to read to her.  I figure she doesn’t understand a word I am saying anyway, so I might as well read aloud the decision of Michele Szary Schroeder, Chief Administrative Judge that ruled on the Graves demotion.  My kid fell asleep, I got VERY angry.

The judge looked at 3 basic things.

1) Did the Agency prove its charge by preponderant evidence creating a rebuttable presumption that the transfer penalty was reasonable?  

She concluded that yes, the Agency proved that, saying:

The particular language of the statute at issue, Section 713(a)(1) of Title 38, authorizes the removal if the Secretary determines the performance or misconduct of the individual warrants it. This section gives very broad authority to the Secretary of Veterans Affairs in determining what constitutes misconduct for an employee in the Senior Executive Service at that Agency….

…by failing to fully extricate herself from the activities surrounding Mr. Waller’s reassignment before and after June 5th, coupled with taking the position he used to hold, equaled the appearance of an impropriety. Bottom line, Ms. Graves should have known taking the job would not look good to the public the VA serves.

So far so good.

2) Did Ms. Graves’ affirmative defenses of harmful procedural error and  a due process violation necessitate overruling the decision?

Again, she concluded that no, they did not.

I conclude that Ms. Graves did not establish by preponderant evidence that the VA committed a harmful procedural error and I further do not find any due process violation.

Again, so far so good.

3)  Having found the first two prongs met, can Ms. Graves establish that the penalty was unreasonable under the circumstances of this case?

Houston, we have our problem.

 Knowledge and acquiescence of Ms. Graves’ reassignment to St. Paul by Ms. Graves’ chain of command are readily apparent and if no one in her chain said, wait, this will not look right when they approved her reassignment, how can a penalty be imposed against Ms. Graves for not saying that.

I conclude Ms. Graves put forward sufficient evidence to prove the penalty of transferring her out of the Senior Executive Service was unreasonable. Therefore, she rebutted the presumption and established that the penalty was unreasonable under the circumstances of this case.

Basically the Judge found that there was so much of this type of activity going on in the upper echelons of VA that Ms Graves is being singled out for things that a whole slew of people ought be punished for, and thus her punishment is unjust.

If that doesn’t make sense to you, you aren’t alone.  It doesn’t make sense to anyone else I’ve talked to either.  Taken a step further, now how could ANYONE be punished, even if they did the exact same thing?  Any VA employee can apparently get an easier job, keep their pay, and get relocation bonuses.  The Judge in this case said that Graves had no way of knowing she would be punished since others were doing it, thereby creating itself the presumption that future individuals who do the same thing are going to again get off without any punishment.

Secretary McDonald was clearly incensed over the decision, as the previously linked Federal Times article makes clear:

A series of scandals at the VA, coupled with appeal restrictions designed solely for the agency as a result of the Veterans Access, Choice and Accountability Act of 2014, have made the MSPB the central battleground pitting accountability versus federal employee rights.

For its part, the MSPB has recently overturned or lessened several VA judgments, including the demotion of two Veterans Benefits Administration executives accused of using their positions for personal gain.

That sustained struggle bubbled over last week, when VA secretary Bob McDonald suggested in a Feb. 10 hearing of the House Committee on Veterans Affairs that the agency shift senior executives from Title 5 to Title 38 status, a move that would limit grievance and appeals avenues for executives.

So basically McDonald is looking to limit the Board by shifting where the employees are titled, taking the MSPB out of the equation.

For now, that appears to be the legislative answer.  What is odd, I mean truly odd, is that the MSPB has a disclaimer up on their main page now that (while not intended as such) seems to even indicate that Congress can and should take action of the disapprove of how this went down, to wit:

Recently, heightened attention has been paid to rulings by United States Merit Systems Protection Board (MSPB) administrative judges involving appeals filed by Senior Executive Service employees at the Department of Veterans Affairs under the Veterans Access, Choice and Accountability Act of 2014 (the 2014 Act). In response to these rulings, some have suggested that MSPB is protecting poor performing employees at the Department of Veterans Affairs. These suggestions are baseless and unfair.

As an independent, quasi-judicial agency, MSPB is required to apply laws created by Congress and legal precedent, as established by Federal courts, when adjudicating appeals. With respect to burdens of proof applied by MSPB, they are contained in title 5 of the United States Code. Moreover, it should be noted that the 2014 Act made no changes to these burdens of proof. Indeed, as MSPB noted in itsAn accessible version of this document may exist, click here to access that version August 21, 2014 Report to Congress Opens a New Window. August 21, 2014 Report to Congress Opens a New Window. , the 2014 Act made only two changes to the MSPB adjudication process: 1) it shortened the time under which appellants must file appeals and which MSPB administrative judges must issue decisions; and 2) it removed the full Board from the MSPB adjudication process. The 2014 Act did not change any statutory burden of proof to be applied in these appeals. Therefore, unless the law is changed, these statutory burdens of proof continue to apply, as they do in all other appeals filed at MSPB. 

None of this helps in the short term.  Both Rubens and Graves will get away what even the VA’s inspector general said was a brazen and perfidious attempt to get funds and the same salary for lessened responsibilities.  The Court itself found that the SES system at VA was so messed up that neither woman could anticipate being demoted, much less fired.   And VA itself is unable to do anything to correct the climate that exists without help from Congress.  And as soon as Congress starts trying to fix this, the SES lobby and unions will jump in with their opposition.

I realize this is long and outside the knowledge scope of most readers, but trust me, VA can’t fix the climate issue right now without some help.  Help they don’t seem to be getting from the Courts, the SES system or anyone else.  And when Congress tries to correct the issue, they will likely run into a brick wall.  This is all looking like it could be one heck of a fight in Congress, and virtually no media will probably report it, and even fewer people will understand the ramifications of what might transpire.

 

 

Category: Politics

Comments (29)

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  1. JimV says:

    Many VA employees I have observed at my local VAMC are in a CYA mode.

    • rb325th says:

      …and a great many more do their jobs day in and day out, and many of those are in a duck and cover mode to avoid being splattered by the fallout of the shit that rises to the top.
      Try being both a Patient and an Employee of the VA.

      • JimV says:

        I agree. I may not be a VA employee, but as a VA Volunteer I am often confused as one. One of our ward nurses mentioned to me recently that she thought I was an employee. “I see you here every weekend.”

        • MSG Eric says:

          Funny, I have a friend who just got out after 22ish years on active duty. Was in Operations and even did a stint as the CSM of his last unit up until he retired.

          He went to an HR office in his local VA about job opportunities. The HR rep talked to him about USA Jobs and how to look at jobs in the VA there. Problem was, the HR rep kept talking about “oh look, you can do this maintenance job.” “Oh, you can do this room cleaning job because you know how to make beds neatly after being in the Army” “Oh, here’s another job in logisitics you can do…”

          Meanwhile, he was scrolling past jobs like “Asst Chief of Staff” and “Resource Manager”. As if over 20 years in the Army wouldn’t qualify you for those types of jobs.

          “Yeah, I was in the Army for over 20 years and in charge of millions of dollars of equipment, budget, etc., in my career. But now, well? Now I’m making beds and taking out the trash, that’s the best job I could get in the VA.”

          I’m not saying it happens everywhere, nor that Veterans can’t get higher up jobs, but I’m not surprised that this happens.

          • JimV says:

            My local VA Hospital has a huge shortage of nurses. The reasons?

            They can’t pass the background check.
            They can’t pass the drug test.
            They don’t have the education or experience.

            (as told to me by a VA RN)

            • MSG Eric says:

              I don’t doubt it. Granted medical professionals are a bit tougher to get. My appreciation for them is significant since it seems they are in this more for patriotism and supporting service members than the money.

              I’d bet they can get better money in a normal hospital, or private clinics, etc., with less restrictions and regulations.

  2. Green Thumb says:

    Good breakdown, TSO, to layman’s terms.

    This makes me sick.

    Ruebens and Graves should be reassigned to the Tuskegee/Central Alabama VA scrubbing toilets.

    • Hondo says:

      Disagree, GT. After the stunts they pulled (using their official positions for personal gain, screwing other VA employees in the process), they should be reassigned to “unemployed”. Unfortunately, it looks like both skated due to VA error and technicalities – plus the system erring on the side of giving the individual the (sometimes-undeserved) “benefit of the doubt”.

      • Green Thumb says:

        What I thought was interesting was the “disclaimer” posted to the MSPB’s website.

        It appears someone has kicked the hornet’s nest. If you cannot hold the the VA/Government accountable legally or through proper channels, push it to the court of public opinion.

        Curious to see how this progresses. I wonder how those to lovely ladies are handling the embarrassment and shame. I mean, who can they blame? They won, per se, but are becoming (if not already) outcasts.

  3. MSG Eric says:

    So not only is SES “the pigs” from Animal Farm. They have security guards to protect them from all the other animals too.

    Seems to me if the MSPB had their way, no one would be able to get fired in the federal system at all. No matter what someone has done, someone else did it and got away with it. So, yeah, its like okay that you did this because someone else did and didn’t get punished….

    • Hack Stone says:

      Do you think that defense will fly the next time someone mishandles classified material and says “Well, Hillary Clinton did far worse, and she walked”? Probably not. I saw it a lot in the Marine Corps, some people just seemed to be issued Teflon cammies, charge sheets would just bounce off of them. Regular Joes, not so much.

      • MSG Eric says:

        Yeah, in the military it is interesting what what occurs. I know a guy who was fired from 5 different positions in one unit as an E-7. He won’t make E-8, but how he still has a job after QMP boards are making their decimation rounds is beyond me.

        What you said reminds me of a Chris Rock joke about Marion Berry, DC’s mayor who smoked crack.

        “Don’t smoke crack, you won’t be nothin!” “I could be Mayor!”

        “You can’t smoke crack at Mcdonald’s and get your job back, they’ll send your ass to Hardy’s….”

        Some day it could be, “Don’t mishandle classified information, you won’t be nothin!” “I could be President, or Senator, or Secretary of State!”

  4. Martinjmpr says:

    MMmmm…OK, can I play Devil’s Advocate here?

    Seems to me that what MSPB said was that when the organization is so poorly run and when improprieties and unethical behavior like this are so common that people don’t actually know whether the rules will be enforced or not, you can’t just pick on a couple of convenient scapegoats just because their cases happened to make the news.

    Translating this into terms familiar to most people in the military, what MSPB said was that you can’t bust the Captain and the Major for doing things that the Colonels and Generals have been both doing and tolerating for years, just because the captain and major happened to get caught and brought attention to the dysfunctional command.

    As for the courts not “helping” to fix the VA, that’s not the role of the courts, that’s the role of Congress and the Executive branch. They shouldn’t count on the Courts to do their dirty work for them. If the system is broken from the top down, that’s where the housecleaning needs to start. Picking a couple of convenient fall guys and then saying “See? Problem FIXED!” isn’t going to work.

    • TSO says:

      That’s a fair point, and I agree. The problem is that we’re trying this new accountability thing, a sort of tabula rosa if you will. But the MSPB is saying you can’t start holding people accountable now when you haven’t done it in the passed. Sort of a “you’ve never done it before, why start now.” The one answer to that is that the Congress THOUGHT at least they were doing that with the latest VA accountability act. My counter question to the MSPB then would be, “what do we need to do to put people on notice, so you can’t next time say we’ve never done this?”

      But your point is a fair one. It *was* after all signed off on by others.

    • MSG Eric says:

      Sorry but the Army sends E-5s to prison for the same stuff that Colonels and Generals might get a letter of reprimand for, so kind of a bad example. (As has been prevalent in the news the past couple years)

      And even if the E-5, or even Captain or Major were to argue that, they’d still get the book thrown at them and then told “well, go through this months long appeals process and maybe they’ll fix it for you” versus the MSPB that acts and decides so quickly.

      They even got reimbursed for their legal fees. Not even the ABCMR does that as a norm, as far as I know.

    • Hondo says:

      It’s a bit stronger even than that, Martinjmpr. Here, the VA leadership screwed itself 2 ways.

      I gave the decision a quick read (it can be found at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1265690&version=1270744&application=ACROBAT ).

      First, it appears that the VA never formally stated as justification for Graves’ downgrade that she had actually done anything wrong – only that she had “created the appearance of impropriety”. Had they actually accused her of misconduct (and proven that, which I believe they could have done to the preponderance of evidence standard), they’d have had a stronger case. Punishment “not fitting the crime” is harder to rebut when there’s actual misconduct vice merely the appearance of same.

      Second, Graves’ supervisors not only knew what Graves was doing – but actively assisted her in doing so, and approved of it. Per the ALJ’s decision, some feel it was still the right thing for the VA to have done.

      We thus don’t have a CPT or MAJ being screwed for something the General knowingly allowed. Here, it’s something the General not only knew about, but personally approved.

      Kinda hard to justify firing someone for “appearance of impropriety” when their boss (and their boss’s boss) both knew about and approved of the action in question.

      Had the VA charged and demonstrated actual wrongdoing vice mere appearance of impropriety, the outcome may well have been different. As much as it pains me to say this: based on what the VA used as justification here, I think the ALJ got this one right. The VA IMO screwed itself by not attempting to show not only appearance of impropriety, but that Graves engineered her transfer for her own benefit.

      • TSO says:

        One of the reasons they DIDN’T go for the “anything wrong” bit was because they were worried about the higher evidentiary standard on that one. It was essentially superfluous in terms of being allowed to act. It’s almost a right to work type situation. In the SES someone need not even do something wrong at all, merely create the appearance of wrong doing which shakes confidence in the system. The VA knew they could get past that, which the ruling conceded that they had done.

        • Hondo says:

          Agreed, Unfortunately, they also failed to consider the fact that that appearance was both known of and approved by both the individual’s boss and her boss’s boss.

          As I said earlier: it’s rather hard to justify nailing someone for taking a lawful action that merely creates an appearance when their boss and their boss’s boss both knew of and approved their action as being “in the organization’s best interest” – let alone when the same behavior is allegedly commonplace.

          Yeah, it sucks. But I’m not sure how to fix the issue. The alternative (allowing people to be fired for doing lawful things that their supervisors have explicitly approved) concerns me even more. Think a Machiavellian supervisor might abuse that authority to get rid of competent people he/she didn’t like? Or maybe as a tool to coerce them to do something unethical, immoral, or unlawful?

          The US government had a somewhat similar system once before, actually. It was called the “spoils system”; it led to a major turnover in the Federal civil service (not just senior political appointees) along party lines every time we had a change in political parties controlling the White House. The problems associated with that led to today’s civil service system.

          I’ll pass on going “Back to the Future” here, thanks.

      • MSG Eric says:

        It does make me curious to know what “reprimand” their boss and boss’ boss got for this little incident?

        Granted, they are higher up higher ups in SES so they might not get that dunkin’ donuts coupon they were expecting.

  5. Silentium Est Aureum says:

    Again I say, what’s next for the VA? Not showing up for your job for 6 years, and only get caught when they want to give you an award?

  6. Sapper3307 says:

    Well done.
    p.s this makes my trailer trash blood boil.

  7. Veritas Omnia Vincit says:

    Well that’s an interesting facet of jurisprudence…too bad it doesn’t work with anything else in the entire world.

    Try telling the judge that the cop who stopped you for speeding shouldn’t have done so because hundreds of speeders aren’t punished each day and see how far you get.

    I don’t like the idea of people being purged for the sake of political beliefs or empty action, but this woman staged the entire move, took an obscene amount of money to move and not only doesn’t get punished but actually gets reinstated complete with legal fees and back pay.

    At what point do the taxpayers decide they’ve had enough of paying for a system that fails them at almost every test? Our government seems to think there’s an endless supply of guys like me starting businesses and paying people while making stuff that others will actually buy. That’s just not true, our government is making people who do nothing but take at the highest level and take at the lowest level think they are fucking entitled to all of this as though it’s of no consequence.

    The 50% of us that actually pay real money into the system can’t afford to float every one who takes from the system, Romney’s 47% comment might have been insensitive but it points to a reality on the horizon that will have real ramifications for the nation.

    When the government is more involved in taking the wealth of the nation by employing more people than any private employer and by handing out that money to their corporate masters or those who are never going to contribute, it all seems great for a while.

    We have to pay that piper eventually and some of you younger guys or your kids are going to be sucking hind tit for a good long time because of fucking useless shitbags like these assholes.

  8. jonp says:

    Um….Congress created The MSPB by statute. Congress can abolish it.

    Problem solved
    Problem staying solved.

    I should be in government. This was too easy

  9. kaf says:

    Holy shit–how many people ARE there at the VA making $180k/year?

    • Hondo says:

      More than you might think. If I recall correctly, VA physicians are paid on a special pay scale that is WAY higher than normal Federal civilian pay scales. And the VA has a sh!tload of physicians.

  10. 2/17 Air Cav says:

    I once advised the head of an agency that the employee she was about to fire would appeal and that an ALJ (any ALJ!) would reinstate the employee with back pay, in light of the facts. Know what her response was? “I know.” So, I looked at her sideways, mimicking the RCA Victor dog, and she explained that she would fire him anyway and let the ALJ reinstate. That way, it wasn’t she who retained him or took him back! She was covered when he was ordered back. Any how, I’m just wondering whether this situation wasn’t just like that, taking the heat off by firing them while knowing full well the firings wouldn’t stick.

  11. 2/17 Air Cav says:

    Oh, by the way, the employee was w/o pay for nearly a year and was indeed reinstated. Sometime thereafter, if I recall correctly, he took medical retirement.

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