The Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 is a victory for veterans and for the great majority of VA employees who provide exceptional service to veterans. It also could pave the way for changes to civil service practices that impede the ability of managers at all levels of government to maintain the quality of their workforces.
The legislation makes it easier for the Secretary of Veterans Affairs to fire senior executives. It is the change to the “standard of review” applied by administrative law judges (ALJs) and the Merit System Protection Board (MSRB) to decisions to terminate, suspend or demote rank-and-file employees, however, that could have the most far-reaching impact.
Indeed, let’s hope that the change begins a trend in other federal agencies and in state and local governments that have all but destroyed qualitative personnel management by transferring much of the power to regulate the conduct and performance of their employees to “independent” hearing authorities. The fact that hearing officers and tribunals substitute their judgment on the retention, suspension or demotion of employees for the judgment of supervisors and managers makes it impossible to hold those supervisors and managers accountable for agency performance – the death knell of effective personnel management.
The act changes the standard of review for most VA employees from “preponderance of the evidence” to “substantial evidence.” No longer will an ALJ or the MSRB be able to overturn the decision of a supervisor solely because they believe that the decision was not supported by the weight of the evidence.
A decision to remove, suspend or demote an employee now can be overturned only if the ALJ or MSRB determines that the decision was not based on “substantial evidence.” That means that the decision stands unless the ALJ or MSPD finds that no reasonable person would find the evidence adequate to support the decision. To overturn a decision an ALJ or the MSRB now must find that the decision not only was wrong but also that the supervisor had no reasonable basis for making the decision in the first place.
The substantial evidence test does what civil service reform was initially intended to do: Protect workers against employment decisions based on improper considerations such as political affiliation and later race, gender, sexual orientation, etc. It does so, however, without tipping the balance so far in favor of the employee that it cripples the ability of management to shape the quality of an agency.
In those jurisdictions that have adopted the preponderance of the evidence test the adoption was a major victory for politically-influential public employee unions because it makes it harder to get rid of employees, including bad ones. It turns administrative appeals of terminations into proceedings resembling full-blown civil trials.
Because almost all civil service systems require systems of progressive discipline the focus of an appeal of a termination under the preponderance of the evidence test is less on whether the employee should be fired, and more on whether management dotted all the i’s and crossed all the t’s along the way. For the supervisor, it often feels like he or she is on trial.
Even if management does everything that it is supposed to do the appellate authority can reverse the termination if it disagrees with the result. Management decisions effectively are placed in the hands of hearing officers, usually lawyers, who have little or no management experience and, more importantly, are not accountable for employee performance.
The process is so daunting that the supervisors are discouraged from initiating disciplinary action and begin to tolerate employees that they shouldn’t. Once that mentality takes hold in an organization it is doomed to mediocrity.
If there is a core principle of management, it is this: Give an employee the tools to do his or her job and then hold the employee accountable for the results. That applies to supervisors as well, and one of their tools is the power to remove, suspend or demote their subordinates. Give that power to independent hearing officers or tribunals who are not responsible for the performance of an agency and you have taken a critically-important tool out of the hands of your supervisors. Don’t be surprised at the consequences.
The VA Accountability and Whistleblower Protection Act of 2017 is a step in the right direction. It is civil service reform that promotes the interest of good government without taking away the legitimate rights of government employees.
July 9, 2017