VA Bill Restricting SES Rights Passes

President Obama is expected to sign within the coming days a VA reform bill (HR-3230) that among other things would allow the VA secretary at his discretion to fire or downgrade into the GS an SES member on either conduct grounds or performance grounds. Currently government-wide, downgrading from the SES is allowable only for poor performance, leaving firing as the only option for alleged misconduct—an action an agency may be reluctant to take because of the added legal complexities—and those downgraded for performance reasons are eligible to keep their current pay rate and to receive an informal hearing before MSPB; those removed from federal service get 30 days advance notice and full appeal rights to MSPB. Under the change, those downgraded or fired would have only seven days to file an appeal with the MSPB—for example, alleging political motivation, whistleblower retaliation or other prohibited practices—and the MSPB hearing officer would have to issue a decision within 21 days after the filing, with no further appeal allowed. Further, an individual who is fired could not receive any form of compensation while the appeal is pending, and those downgraded would be paid at the rate of their new position unless their appeal succeeds. The bill also bars use of patient scheduling, wait times and similar measures in performance evaluations, a step VA has taken administratively already, and sets annual caps on performance awards, bonuses and similar payments department-wide through 2024.