SEA Statement in Response to VA Proposal on Senior Executives

In response to the proposal made by the Department of Veterans Affairs (VA) Secretary Robert McDonald to move the agency’s career senior executive workforce from Title 5 to Title 38, Senior Executives Association (SEA) Interim President Jason Briefel issued the following statement:

“Yesterday, the VA, Congress, and the Administration made it clear that the true intent of the 2014 Choice Act’s expedited appeal procedure which was applied to VA’s career senior executive service was to be a rubber stamp on the VA’s disciplinary determinations and not afford career executives true due process.

SEA voiced those concerns in 2014 while the Choice Act was being debated. It is clear now that our concerns were valid and have been affirmed.

By passing the Choice Act, Congress and regrettably this Administration, intended the appeal procedures to be nothing more than a ruse of fairness. Because as soon as the VA’s disciplinary actions were found not to be sustainable as a matter of law, the VA proposed now to move all career executives into Title 38, where they would become at-will and have no independent appeal review of actions taken against them. That will surely lead to the politicization of the delivery of care and benefits throughout the entire VA workforce, as these at-will executives will now serve at the complete pleasure of the political arm of the VA.

Ironically, the Choice Act’s stated intention to provide no further review or appeal of MSPB judge’s decision has now backfired on the VA and Congress, forcing the VA and the Administration to propose a complete at-will employment status for the VA’s approximate 350 career executives. Had Congress and the VA passed a lawful and fair statute in 2014 or used the existing Title 5 authority, surely the VA could have appealed these recent decisions to test in the third branch of our government, our federal court system, whether these MSPB judges were truly in the wrong. Bad politics make bad policy.

Rather than abiding by the long standing principle of our democracy to respect the rule of law, the VA and Congress complain that it is three different, and highly experienced, MSPB judges who are wrong, and voice a refusal to abide by their lawful determinations. This denigration of the MSPB stands in contrast to the Secretary’s public statement on the eve of the MSPB hearings last month, when he commented that the agency awaited to see whether “[their] calibrations of punishment sticks.” Apparently, what he meant to say was if MSPB disagreed, he’d get the law changed again.

This latest proposal to move only 350 employees of the VA’s nearly 370,000 person workforce is farcical. It remains astonishing to SEA that so much time and taxpayer money is spent by Congress and this Administration in public grandstanding focused on a few career executives instead of the systemic issues facing VA’s vast infrastructure of funding, people, services, and capital. The only explanation can be one of politics and easy targets.

When Congress tried to extend the Choice Act expedited termination authority to the agency’s unionized workers in 2015 through HR 1994, the VA and the Administration declared this very same expedited statutory procedure to be unconstitutional and unfair. The Administration stated it would veto the bill. SEA asks why Congress, the VA and this Administration believe it is ok in our country to have two classes of citizens: those whose rights are in full conformance with our Constitution and those whose rights are second class. Our country already had that discussion in the 20th century and here we are today with lawmakers ignoring those lessons. Indeed, during one of the recent MSPB hearings involving a VBA executive’s demotion, Deputy Secretary Gibson testified that he believed it was bad policy to have two classes of agency employees, those with one set of rights and those with another.

It is disingenuous to tell our veterans and the American public that the deep seated, long standing, and well-documented issues at the agency are attributable solely and exclusively to approximately 350 executives.

Bad policy makes for bad government, which is a disservice to our veterans and to the American people.”

The Senior Executives Association (SEA) is a professional association representing Senior Executive Service members and other career federal executives. Founded in 1980, SEA’s goals are: to improve the efficiency, effectiveness and productivity of the federal government; to advance the professionalism and advocate the interests of career federal executives; and to enhance public recognition of their contributions. The SEA Professional Development League (PDL) is a nonprofit educational organization committed to advancing the professionalism of career federal executives through the sponsorship of training, recognition, and research activities.