[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

[[Page S5529]]

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

[[Page S5530]]

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.
                                 ______