VA SES Provisions Explained

Congress has released a detailed report on HR-3230, the VA reform bill that restricts appeal rights for SES members there. It notes that under existing law—which will continue to apply to the SES contingent of all other agencies, although the VA changes are widely seen as setting precedent for broader changes—career SES employees may be removed for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. Senior executives removed as a result of these conduct-related issues are entitled to certain rights, including at least 30 days advance written notice; a reasonable time but not less than seven days to reply; representation by an attorney or other representative; a written decision from the agency involved; and appeal rights to the Merit Systems Protection Board. Further, under current law, they may be downgraded from the SES into a non-SES position for performance-related issues. This may occur at any time during a one-year probationary period or at any time for less than fully successful executive performance. Generally, senior executives removed from the SES and placed into a civil service position are entitled to an informal hearing before the MSPB. Also under current law, section 3592(b) of title 5, U.S.C., there is a 120-day moratorium from removing a career appointee in the SES following the appointment of the head of the agency or the SES employee’s immediate supervisor. The original Senate version of the bill would have provided the VA Secretary the authority to remove or demote any individual from the SES at the Secretary’s discretion, with shortened appeal rights. The House version would have provided for no appeal rights. The final version generally reflects the Senate language but specifies that the expedited review by the MSPB “be conducted by an Administrative Judge at the MSPB, and if the MSPB Administrative Judge does not conclude their review within 21 days then the removal or demotion is final. The substitute does not allow for any further appeal beyond the Administrative Judge, and does not allow for a second level review by the three-person board at the MSPB,” the summary says. “The substitute also requires that if the senior executive is removed, and then appeals VA’s decision, the senior executive is not entitled to any type of pay, bonus, or benefit while appealing the decision of removal. Furthermore, the substitute requires that if a senior executive is demoted, and then appeals VA’s decision, the employee may only receive any type of pay, bonus, or benefit at the rate appropriate for the position they were demoted to, and only if the individual shows up for duty, while appealing the decision of demotion. The substitute requires that the MSPB submit to Congress a plan within 14 days of enactment of how the expedited review would be implemented. The substitute also adds language to include title 38 SES equivalents under this new authority and includes `misconduct’ along with `poor performance’ as a reason to remove or demote a senior executive.”