[Congressional Record Volume 161, Number 116 (Thursday, July 23, 2015)]
[Senate]
[Pages S5528-S5530]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. BLUMENTHAL (for himself, Mrs. Murray, Mr. Sanders, Mr.
Brown, Mr. Tester, and Ms. Hirono):
S. 1856. A bill to amend title 38, United States Code, to provide for
suspension and removal of employees of the Department of Veterans
Affairs for performance or misconduct that is a threat to public health
or safety and to improve accountability of employees of the Department,
and for other purposes; to the Committee on Veterans' Affairs.
Mr. BLUMENTHAL. Mr. President, going back to my colleagues who have
appeared to talk about issues of accountability for the Department of
Veterans Affairs, I want to say how grateful I am for the spirit of
collaboration that prevailed yesterday in our meeting.
Very generously and responsibly, the chairman of that committee,
Senator Isakson--my good friend and distinguished colleague from
Georgia--offered and committed to continue the effort to improve the
measures we approved yesterday in our committee to hold accountable the
Department of Veterans Affairs and all of its employees--just as we do
any other agency of government--to make sure we keep faith with our
veterans and leave no veteran behind.
Our Nation needs to make sure we provide the robust resources and the
prompt delivery of health care services
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and other measures to our veterans with the honest and efficient
management our veterans deserve.
So many of us were repulsed and outraged by the revelation just a
little more than 1 year ago about delays in health care, irresponsible
and reprehensible and, indeed, criminal obstruction of justice in
cooking the books that prevailed at health care facilities of the
Department of Veterans Affairs around the country, and the
ramifications were sweeping. There were indeed changes in management,
beginning at the very top, with a new Secretary. There were also
measures approved by this Congress in the last session, the Veterans
Access, Choice and Accountability Act, to make sure no veteran
suffering 30 days or more in delays in health care be denied a private
provider if he or she chooses one or is living more than 40 miles from
any facility.
We are working on additional measures, constructive and positive
measures, to make sure this Nation fulfills its promise of prompt,
world-class, first-class health care to every veteran who needs it,
regardless of what that need is, the specialty or the illness, and to
make sure we also cure the other deficiencies, such as the delays in
disability claims, homelessness, joblessness, the need for job training
and skills among our veterans.
Part of our task is accountability to make sure members of the
Department of Veterans Affairs are held accountable. That is one reason
why I insisted and urged from the very beginning of those revelations
of wrongdoing and criminality in the Department of Veterans Affairs
that there be a Department of Justice investigation. I called on the
Attorney General of the United States to investigate, not the inspector
general of the Department of Veterans Affairs, the Attorney General of
the United States because only the Department of Justice has the
resources and expertise, direction, and leadership to successfully
pursue the wide-ranging criminality and wrongdoing that I thought was
revealed.
For all of us who hope there is honesty and fair dealing in our
government, regrettably there has now been a criminal indictment. The
indications are that more should follow, that there was and is reason
for a Department of Justice investigation, that there are and need to
be continued reports and results of the IG investigation. I have called
in hearing after hearing that we be given those reports and results of
the ongoing inspector general investigation, and we still are lacking
in the full work product from that office. There is clearly more work
to be done on the wrongdoing that has been committed in the past, and
there is clearly more work to be done to prevent it in the future.
Part of what needs to be done is to protect the whistleblowers.
Indeed, those revelations of wrongdoing came in part from
whistleblowers who had the courage and fortitude to step forward and
who were intimidated and ostracized and sometimes persecuted within the
VA. They need protection. One part of what we need to do is to make
sure they are protected.
There ought to be accountability going forward in disciplining
employees within the VA when there is malfeasance or waste or fraud.
That involves eliminating some of the redtape and rigaramole that in
the past have hampered the VA Secretary or other managers in making
sure that there is accountability. That is why I welcome the focus of
our committee on assuring accountability and transparency.
Those changes in the law are necessary to enable the VA Secretary and
his team to make sure that there is not only accurate and effective
prompt discipline but also the appearance of it so that employees at
the VA will know that there is a standard of conduct and it will be
enforced and it will be upheld in the courts when it is challenged.
That is true not only in the VA but of every department of the U.S.
Government. There needs to be that perception and reality of the
enforcement of codes of conduct and ethics.
There needs to be a recognition that it is in the interest not only
of the American taxpayer but the employees of the U.S. Government
themselves. The majority of them are honest and hard-working. Those
nurses, counselors, therapists, doctors, and administrators at the VA
who are doing their job--in fact, working overtime often without
additional pay--who are serving valiantly and responsibly, their
clients deserve that wrongdoers be rooted out and held accountable.
They are the vast majority of those honest and hard-working employees,
and we owe them thanks for what they do to serve our veterans, but the
wrongdoers need to be disciplined.
The idea that they should receive bonuses is absolutely abhorrent. I
welcome legislation that stops bonuses for employees who fail the most
basic notions of effective and honest service. They deserve that those
bonuses be stopped.
My colleague Senator Isakson has spoken about S. 627, the bill that
has been sponsored by Senator Ayotte and was approved yesterday. I want
to make sure in the improvements I am going to offer to it and that my
colleague Senator Brown offered yesterday--that we actually make it
more effective. That is the nature of this deliberative process, that
we try to improve on what we are doing to make enforcement more
effective.
I know as an enforcer, as a former U.S. attorney and a Federal and
State official, enforcement is key to making the law work. The same is
true of S. 1082, sponsored by our colleague Senator Rubio, which also
was approved yesterday by our committee. I have offered a bill that
will improve the measure we approved yesterday in a number of different
respects.
First of all, there are serious questions about the constitutionality
of the provision approved yesterday. I think in fairness to all of the
American taxpayers as well as this body, we should face whatever
deficiencies there are constitutionally in the law before that law
becomes unenforceable.
The importance of making sure a law is constitutional goes to
enforcement. A law that is unconstitutional, that fails to provide
sufficient notice, a statement of causes, a right to be heard, an
opportunity to achieve basic constitutional protection that the U.S.
Security Court has repeatedly said is necessary, those deficiencies can
make law unenforceable.
As I said yesterday in our committee meeting, as a former attorney
general, and there are others in this body, we know how difficult the
task is to defend a law or defend State action that is based on a
constitutional and firm statute.
A law that is unenforceable is worse than no law at all because it
creates a false sense of security, an expectation that never can be
fulfilled because a law that is unenforceable will never be effective
in preventing the wrong that it is designed to do.
I want to improve S. 1082--in fact, to make it more effective--but to
make sure it is done in a way that can be upheld, also to protect those
whistleblowers, and to make sure that if there are firings and
disciplines, it is done on the merits, that it is done on the basis of
real cause and evidence, not as part of a political witch hunt.
We have been through the spoils system. This Nation has lived through
a time when, in effect, offices were bought and sold. That certainly is
nobody's intention here, and I am sure my colleagues and I can work
together to move toward a measure that fulfills our common shared
objective in making sure that merit and effective action is rewarded
with bonuses and through other means and that wrongdoing is punished
and deterred.
There can be no enforcement unless the law is framed as well as
possible, and there can be no deterrence unless there is enforcement.
That is what we want to do: prevent this kind of wrongdoing going
forward, not just looking backward and pursuing and prosecuting the
wrongdoers, which I hope will be done. There is more than ample
evidence to support it but also to prevent it going forward.
I am tremendously heartened by our committee chairman's commitment to
work with me and others on that committee. He said to me very
explicitly, and it is on the record, that he will, in fact, work with
us. We will engage in collaboration.
I think we are going to improve these measures. They may not be huge
or sweeping changes in what we approved yesterday, but we all know that
words can sometimes lead to courts concluding that there are defects in
the law that were never intended by the
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Framers. That is a consequence, an unintended result that we should
avoid if possible. It may seem like lawyer talk, but it has
ramifications in the courts. That is the reason we heard from the DAV
at our June 24 hearing that it is ``vitally important to VA's long-term
future to create an environment in which the best and brightest
professionals choose VA over other Federal or private employers.''
We need those best of the best in the VA, not working in the private
sector alone. Fairness and due process in our workplace will encourage
talented doctors, lawyers, nurses, and other professionals to come to
the VA, which is where we need them, for the strength of that system.
As the independent U.S. Merit Systems Protection Board stated in its
statement for the record in the committee's June 24th hearing, there is
a need to follow and respect constitutional due process. The
Partnership for Public Service said much of the same thing in this
letter of July 21, 2015.
Mr. President, I ask unanimous consent that the letter be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Partnership for Public Service,
Washington DC, July 21, 2015.
Senate Committee on Veterans Affairs,
U.S. Senate, Washington, DC.
Dear Members of the Senate Veterans Affairs Committee: On
behalf of the Partnership for Public Service, a nonpartisan,
nonprofit organization dedicated to improving the
effectiveness of our federal government, I am writing to
express my views on S. 1082, the Department of Veterans
Affairs Accountability Act of 2015, and a substitute
amendment to be offered by Senator Blumenthal, which would
address employee accountability and broader management
challenges at the Department of Veterans Affairs (VA).
As members of the Senate Veterans Affairs Committee, you
have a unique opportunity to fix serious problems at the
Department and improve the ability of the Department to
deliver on its mission to provide high-quality services to
veterans. Unfortunately, the reforms promoted in S. 1082 will
not accomplish these objectives. As drafted, the bill
eliminates due process protections for employees--which will
silence the very whistleblowers we rely on to sound the
alarm--and could lead to removals for partisan or
discriminatory reasons. The bill will also have an adverse
impact on the ability of VA to recruit and retain top talent,
as seasoned reformers may be less inclined to pursue VA
leadership positions without due process protections. In
addition, the bill expedites the appeals process without
providing additional resources, which, according to a
statement for the record from the Merit Systems Protection
Board (MSPB), could overwhelm MSPB's capacity to manage its
workload.
The Partnership strongly agrees that poor performance is a
real problem at VA and that federal employees at all agencies
must be held accountable for their performance and conduct.
We have recommended dozens of reforms to the current civil
service system that, we believe, will lead to a better
managed government and a higher performing workforce.
However, moving to at-will employment will have many
unintended consequences and will not solve the critical
management challenges that are hobbling VA and jeopardizing
the care of our veterans. We believe a better solution lies
in Sen. Blumenthal's substitute amendment that would give the
Secretary an additional tool to remove individuals who are a
threat to public health or safety, and improve the management
of the Department.
Among other things, the substitute amendment would do the
following:
Hold senior political leaders accountable in performance
plans for recruiting and selecting the right people for
employment at the agency, engaging and motivating employees,
training and developing employees and holding managers
accountable for making difficult performance decisions.
Accountability for management in government starts at the
very top and this provision will ensure all leaders, career
and political, are held accountable.
Ensure managers are fully using the probationary period to
develop high-potential employees and to remove someone if
they are not the right fit for the position. The amendment
would require managers to make an affirmative decision as to
whether an individual who serves in a probationary period has
demonstrated successful performance and should continue past
the probationary period. It also requires new supervisors to
demonstrate management competencies, in addition to technical
skills, in order to remain in a management position.
Require periodic training for managers on the rights of
whistleblowers and how to address an employee allegation of a
hostile work environment, reprisal or harassment; how to
effectively motivate, manage and reward employees; and how to
effectively manage employees who are performing at an
unacceptable level.
Hold VA managers accountable in performance plans for
taking action to address poor performance and misconduct and
for taking steps to improve or sustain high levels of
employee engagement.
Create a separate promotion track for technical experts so
they can advance in their careers without having to go into
management positions for which they are ill-suited. Too often
we hear that supervisors promote their employees to
management positions because they want to pay them more, even
when the employees are technical experts who may be
uninterested or unskilled in managing people.
Require GAO to study the implementation of Section 707 of
the Veterans Access, Choice, and Accountability Act of 2014,
which was enacted last year, to understand its impact on
performance, accountability, recruitment and retention at VA,
particularly at the executive level. The provision would also
require GAO to review VA's internal policies for dealing with
performance issues and make recommendations for how the
Department could expedite the process for addressing
performance and misconduct administratively.
The challenges at VA are critical and must be addressed. We
encourage the Committee to adopt the substitute amendment and
ensure these critical management provisions are included as
the bill moves to the floor. Our veterans deserve the very
best care and this is the time for real reform, not simple
expediency.
Very best wishes,
Max Stier,
President and CEO.
Mr. BLUMENTHAL. I ask that my colleagues join in this collaboration
because I know how deeply you and I feel, how we share that common
goal, not just in our committee. I ask that we work to incorporate the
measure I have introduced today, S. 1856, with the cosponsorship
Senators Murray, Sanders, Brown, Tester, and Hirono, my colleagues on
the Veterans' Affairs Committee, the Department of Veterans Affairs
Equitable Employee Accountability Act. This measure is introduced
today, and it will help us improve and enhance S. 1082 and the
supremely important objectives that motivate it.
I thank my colleagues for our work together, and I look forward to
pursuing it.
I thank the Presiding Officer, and I yield the floor.
______