The VA Accountability Act (H.R. 1994), which would make it easier for the Department of Veterans Affairs to demote or fire employees based on poor performance and offer increased protection for whistleblowers, was passed in the House by a vote of 256–170. All but one of the votes against the bill came from Democrats. The White House issued a policy statement in strong opposition on the grounds that the bill would allow a VA employee to be removed from federal service or demoted without the ability to appeal that decision. The policy statement included a threat to veto the bill were it to arrive at the President’s desk.
The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jul 29, 2015.
VA Accountability Act of 2015
(Sec. 2) This bill authorizes the Department of Veterans Affairs (VA) to remove or demote a VA employee based on performance or misconduct.
The VA may also remove an individual from the civil service or demote the individual through a reduction in grade or annual pay rate.
A demoted individual: (1) shall be paid at the demoted rate as of the date of demotion, (2) may not be placed on administrative leave or any other category of paid leave while an appeal is ongoing, and (3) may only receive pay and other benefits if the individual reports for duty.
The VA shall notify Congress of, and the reason for, any removal or demotion.
An employee shall have the right to an appeal before the Merit Systems Protection Board within seven days of removal or demotion. If an administrative judge does not make a final decision within 45 days the original decision becomes final. The Board or an administrative judge may not stay any removal or demotion.
Between the date on which an individual appeals a removal from the civil service and the date on which the administrative judge issues a final decision on the appeal, the individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
The VA may not remove or demote an employee during the pendency of a whistle blower complaint made to the VA Office of Special Counsel or to the central whistle blower office until a final decision has been made.
The Special Counsel may terminate an investigation of a prohibited personnel practice alleged by a VA employee or former employee after it has given the individual a written statement of the reasons for the termination.
(Sec. 3) An individual's appointment to a permanent position within the competitive service or as a career appointee within the Senior Executive Service (SES) shall become final after an 18-month probationary period, which the VA may extend. Final appointment shall be made by the employee's supervisor.
(Sec. 4) There is established an additional method for filing whistle blower complaints in which a VA employee may file such complaints with his or her immediate and next-level supervisors, and ultimately with the VA after having properly filed a complaint at each supervisory level.
If a supervisor makes a positive determination regarding such complaint the VA shall: (1) inform the employee of the ability to volunteer for a transfer, and (2) give preference to such transfer.
The VA may not exempt any employee from such whistle blower coverage.
The central whistle blower office shall be responsible for investigating all VA whistle blower complaints, regardless of whether such complaints are made by or against an employee who is not a SES member.
The VA shall ensure that the central whistle blower office:
is not an element of the Office of the General Counsel; is not headed by an official who reports to the General Counsel; does not provide, or receive from, the General Counsel any information regarding a whistle blower complaint except pursuant to an action regarding the complaint before an administrative body or court; and does not provide advice to the General Counsel. The VA shall carry out the following adverse actions against a supervisor who commits a prohibited personnel action relating to a whistle blower complaint:
for a first offense, an adverse action that is not less than a 14-day suspension and not more than removal; and for a second offense, removal. A supervisor subject to an adverse employment action shall have five days to respond to a notification of the proposed action, and if the supervisor's response is inadequate or untimely, the adverse action will take effect.
The criteria used to evaluate a supervisor's performance shall include whistle blower-related actions.
A supervisor who commits a prohibited personnel action shall not be paid any award or bonus for a one-year period, and any award or bonus paid during that period shall be recouped.
VA employees shall receive annual whistle blower complaint training.
(Sec. 5) The VA shall provide five annual performance level ratings for SES employees as follows:
outstanding, exceeds fully successful, fully successful, minimally satisfactory, and unsatisfactory. The number of employees who may receive outstanding or exceeds fully successful ratings in each year is limited.
At least once every five years the VA shall reassign each individual employed in an SES position to a position at a different location that does not include the supervision of the same personnel or programs. The VA may waive this requirement if it notifies Congress of the waiver and the reasons for it.
The VA shall enter into a contract with a nongovernmental entity to review the SES management training program.
(Sec. 6) The VA shall reduce the federal annuity of an individual removed from the SES who: (1) is convicted of a felony that influenced his or her performance while employed in that position, and (2) was afforded prior notice and an opportunity for a hearing conducted by another department or federal agency.
The VA may reduce the federal annuity of an individual convicted of such a felony and who was subject to removal or transfer from the SES, but who left the VA before final action was taken.
(Sec. 7) The VA may not place an employee on administrative leave or any other type of paid non-duty status for more than a total of 14 days during any 365-day period. The VA may waive this prohibition if it gives Congress a detailed explanation of the reasons the employee was placed on such leave or status and the reasons for extending that placement.
(Sec. 8) Congressional testimony by a VA employee in his or her official capacity shall be considered official duty, and the VA shall provide any such employee with travel expenses, including per diem in lieu of subsistence, during the period when the employee is so testifying.
(Sec. 9) The Veterans Access, Choice, and Accountability Act of 2014 is amended to reduce to $300 million the aggregate amount of awards and bonuses that may be paid by the VA in each of FY2015-FY2018.
(Sec. 10) The Government Accountability Office shall study the amount of time spent by VA employees carrying out labor organizing activities and the amount of VA space used for such activities.
(Sec. 11) The VA Inspector General shall submit to the VA and to Congress any report that recommends actions to address an issue with respect to public health or safety relating to misconduct by a VA employee.
Such a report shall include: (1) an explanation of any VA-recommended changes to the report during the period in which the Inspector General was preparing the report, and (2) the names of each responsible manager (which the Inspector General shall not make public).
The VA: (1) shall notify each responsible manager within seven days and provide such person with appropriate counseling and a mitigation plan to resolve the issue, and (2) may not pay any bonus or award to such manager if an issue is unresolved.