[Congressional Record Volume 161, Number 121 (Wednesday, July 29, 2015)]
[House]
[Pages H5623-H5627]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     VA ACCOUNTABILITY ACT OF 2015


                             General Leave

  Mr. MILLER of Florida. Madam Speaker, I ask unanimous consent that 
all Members may have 5 legislative days in which to revise and extend 
their remarks and add any extraneous material in the Record on H.R. 
1994, as amended.
  The SPEAKER pro tempore (Mrs. Walorski). Is there objection to the 
request of the gentleman from Florida?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to House Resolution 388 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the state of the Union for the consideration of the bill, H.R. 1994.
  The Chair appoints the gentleman from Nebraska (Mr. Fortenberry) to 
preside over the Committee of the Whole.

                              {time}  1538


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 1994) to amend title 38, United States Code, to provide for the 
removal or demotion of employees of the Department of Veterans Affairs 
based on performance or

[[Page H5624]]

misconduct, and for other purposes, with Mr. Fortenberry in the chair.
  The Clerk read the title of the bill.
  The CHAIR. Pursuant to the rule, the bill is considered read the 
first time.
  The gentleman from Florida (Mr. Miller) and the gentleman from 
California (Mr. Takano) each will control 30 minutes.
  The Chair recognizes the gentleman from Florida.
  Mr. MILLER of Florida. Mr. Chairman, I yield myself such time as I 
may consume.
  Mr. Chairman, my bill would provide the Secretary of the Department 
of Veterans Affairs with yet another tool to instill accountability, 
much-needed accountability at the Department of Veterans Affairs, by 
allowing him or her to remove or demote any employee for poor 
performance or misconduct.
  The bill also contains language to protect--and let me say that again 
to the Members here on the floor, to protect--whistleblowers by 
stipulating that an employee may not be removed under this new 
authority if they have an open claim at the Office of Special Counsel 
until that claim is closed.
  Now, to add even more protections for those who blow the whistle at 
VA, my bill would also set up a new process to be used in addition to 
any other process that is currently allowed by law, which would protect 
whistleblowers from retaliation by removal while they bring issues to 
light up through their chain of command.
  My bill also makes changes to the Senior Executive Service 
performance evaluation system. It also allows the Secretary to recoup a 
portion of an SES employee's retirement benefits if they are convicted 
of a felony related to their work performance and limits paid 
administrative leave to 14 days within a 1-year timeframe for any VA 
employee. H.R. 1994, as amended, would also extend to 18 months the 
probationary period for all new VA employees to ensure a complete 
evaluation before offering permanent status.
  Finally, Mr. Chairman, my bill requires that GAO do a study on time 
and space that is spent on union activities. I agree with all of my 
colleagues that a great majority of VA's employees are hard-working 
public servants who are dedicated to providing the quality health care 
and benefits that our veterans have earned, and I am sure that the 
majority of these employees who are dedicated to the mission of the 
Department are just as frustrated as most of us are that problem 
employees continue to be moved to new positions or placed in a corner 
as opposed to removing them from the payroll.
  We have seen how the presence of poor performers and misconduct 
ranging from unethical practices to outright criminal behavior can 
spread like a cancer throughout the workforce. When the Secretary comes 
across this presence of poor performance or misconduct, as we have seen 
time and time again across our country, such as Phoenix, Denver, 
central Alabama, Philadelphia, Los Angeles, in my home State of 
Florida, and in many other places across our Nation, it is nearly 
impossible to remove that cancer in a reasonable amount of time due to 
current civil service rules.
  This is not just my view. A recent GAO study found that it can take 6 
months to a year, or sometimes significantly longer, Mr. Chairman, to 
fire poor performing government employees. More telling, last month, 
VA's Deputy Secretary Gibson sat before our Committee on Veterans' 
Affairs and admitted that it was too difficult to fire a substandard 
employee. We should all agree that it defies common sense for it to 
take many months or even years to fire a poor performing employee at 
VA.
  We, as Members of Congress, and the American citizens appreciate the 
sacrifices that our veterans have made and always argue that they 
deserve nothing but the highest quality care and treatment, but in my 
view, bad employees mean bad customer service and an impediment to the 
quality services that our veterans have earned. If we truly want for 
our veterans to have the very best, then the status quo simply is no 
longer acceptable.
  I know there are concerns that this bill will hurt the Department's 
ability to recruit and retain good employees and hurt employee morale, 
but I think nothing could be further from the truth. The best way to 
improve morale is to get rid of the causes of the dysfunction that we 
currently see at the VA. Nobody enjoys working for an organization that 
fails to hold poor performance accountable, and the only employees the 
VA should want to recruit are those who want to work in an environment 
where they know everyone is respected and can be held accountable for 
their actions.
  Some have also said that this bill is not needed because VA fires 
employees all the time, but the raw numbers, Mr. Chairman, just don't 
tell that story. Following a year in which we witnessed the biggest 
scandal in VA history, only three--let me repeat, three--employees of a 
workforce of over 340,000 people have been successfully fired for wait 
time manipulation. These numbers, or lack thereof, make it clear that 
more work needs to be done to turn the tide at VA and change the 
culture within the Department.

                              {time}  1445

  That is why this legislation is not punitive but is necessary if we 
truly want the Secretary to make the changes this Congress, the 
American people, and, most importantly, our veterans expect to see 
made.
  I know that the unions oppose this and continue to compare my bill to 
current law in an attempt to illustrate what they think my bill is 
lacking, in their opinion; but comparing my bill to current law ignores 
the far too often egregious effects of current civil service laws which 
have contributed to the scandals at VA.
  Yes, the bill before us today is different from current law, because 
the current law needs to be changed, and that is what I and many of my 
colleagues are trying to accomplish with this legislation. Despite our 
attempts to reach a measure of common ground with the unions, they have 
made it clear from the beginning that pretty much anything but the 
status quo will not garner their support.
  Well, we have proven that the status quo is not working. It is 
failing the mission of the Department of Veterans Affairs, and it is 
failing the veterans the VA is supposed to serve. Mr. Chairman, it is 
time for a change. The Secretary needs the ability to make real 
reforms, and he needs to be able to do it quicker than the current 
average timeline of 6 to 12 months to remove a single employee.
  It has also come to my attention that the administration has recently 
come out saying that they strongly oppose the bill and could 
potentially veto it if it arrives at the President's desk; but this 
removal authority for all VA employees is modeled after the same 
authority provided in the Choice Act that was passed by the House and 
the Senate and signed by the President last summer, the same authority 
that, at the bill signing almost exactly this time last year, the 
President said: ``If you engage in an unethical practice, if you cover 
up a serious problem, you should be fired . . . It shouldn't be that 
difficult.''
  Mr. Chair, I am not sure why the President has changed his position 
almost exactly a year later.
  The voice of the unions should not be heard over the voice of our 
veterans. We need to continue to push for the same change we pushed for 
last year. Now is not the time to change our belief in the need for 
greater accountability within VA.
  Our veterans still expect us to continue to advocate for them as more 
and more of VA's missteps are brought to light every single day, 
whether they are on the front page of the paper or not. We cannot 
continue to put the needs of employees whose performance or misconduct 
would not be tolerated in the private sector ahead of our Nation's 
veterans because we are scared of change or because we don't want to 
upset the unions.
  Ladies and gentlemen, if we do not at least try to give the Secretary 
the tools he or she needs to hold VA employees accountable, then we as 
a Congress are just as culpable for any future VA failures as the 
antiquated civil service laws that foster those failures now.
  There is not a doubt in my mind that all of my colleagues here today 
care for our Nation's veterans; but today, we can decide to stand with 
our veterans or we can decide to stand with the status quo, which I 
believe has failed them and the American public for far too long.

[[Page H5625]]

  I reserve the balance of my time.

         House of Representatives, Committee on Oversight and 
           Government Reform,
                                    Washington, DC, July 27, 2015.
     Hon. Jeff Miller,
     Chairman, Committee on Veterans' Affairs, Washington, DC.
       Dear Mr. Chairman: I write concerning H.R. 1994, the VA 
     Accountability Act of 2015, as amended by the Committee on 
     Veterans' Affairs. As you know, the Committee on Veterans' 
     Affairs received an original referral and the Committee on 
     Oversight and Government Reform a secondary referral when the 
     bill was introduced on April 23, 2015. I recognize and 
     appreciate your desire to bring this legislation before the 
     House of Representatives in an expeditious manner, and 
     accordingly, the Committee on Oversight and Government Reform 
     will forego action on the bill, as amended.
       The Committee takes this action with our mutual 
     understanding that by foregoing consideration of H.R. 1994, 
     as amended, at this time, we do not waive any jurisdiction 
     over the subject matter contained in this or similar 
     legislation. Further, I request your support for the 
     appointment of conferees from the Committee on Oversight and 
     Government Reform during any House-Senate conference convened 
     on this or related legislation.
       Finally, I would ask that a copy of our exchange of letters 
     on this matter be included in the Congressional Record during 
     floor consideration, to memorialize our understanding.
           Sincerely,
                                                   Jason Chaffetz.
     Chairman.
                                  ____

                                         House of Representatives,


                                Committee on Veterans Affairs,

                                    Washington, DC, July 27, 2015.
     Hon. Jason Chaffetz,
     Chairman, House Committee on Oversight and Government Reform, 
         Washington, DC.
       Dear Chairman Chaffetz: In reference to your letter on July 
     27, 2015, I write to confirm our mutual understanding 
     regarding H.R. 1994, as amended, the ``VA Accountability Act 
     of 2015.''
       I appreciate the house Committee on Oversight and 
     Government Reform's waiver of consideration of provisions 
     under its jurisdiction and its subject matter as specified in 
     your letter. I acknowledge that the waiver was granted only 
     to expedite floor consideration of H.R. 1994, as amended, and 
     does not in any way waive or diminish the House Committee on 
     Oversight and Government Reform's jurisdictional interests 
     over this legislation or similar legislation. I will support 
     a request from the House Committee on Oversight and 
     Government Reform for appointment to any House-Senate 
     conference on H.R. 1994, as amended. Finally, I will also 
     support your request to include a copy of our exchange of 
     letters on this matter in the Congressional Record during 
     floor consideration.
       Again, thank you for your assistance with these matters.
       With warm personal regards, I am
           Sincerely,
                                                      Jeff Miller,
                                                         Chairman.

  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  I rise in opposition to H.R. 1994. We are all frustrated that the VA 
is not moving fast enough to hold bad employees accountable, but I do 
not believe H.R. 1994 would lead to real, long-term accountability at 
the VA. In fact, I believe it would have the opposite effect by 
possibly shielding poor-performing VA employees from ever being 
removed.
  This bill violates longstanding Supreme Court precedent regarding our 
Constitution's promise of due process rights. Our Constitution 
guarantees that we cannot be deprived of life, liberty, or property 
without due process of law. Our veterans were willing to lay down their 
lives to defend this basic promise.
  The Supreme Court of the United States has determined that our 
Constitution gives Federal employees the right to due process, meaning 
fair notice and a chance to respond, before losing their jobs. As 
lawmakers, we do not have the power to revoke this constitutional 
principle of fairness and due process for a select group of people, no 
matter how outraged we may feel. I believe it is wrong to assume that 
VA employees are guilty until proven innocent.
  If H.R. 1994 were enacted, I believe courts could very well overturn 
any removals as a violation of those employees' due process rights. 
They could then reinstate and give backpay to those who were removed. 
Bad employees would become permanent fixtures at the VA.
  We all agree that VA needs to use the current tools it has more 
vigorously to remove poor-performing employees, but we should not throw 
out important constitutional protections to arbitrary actions simply 
because some claim it is too difficult to follow the law or be faithful 
to our basic principles of fairness.
  H.R. 1994 would provide a new tool to VA managers, but perhaps not 
the tool imagined by its supporters. Bad managers and political 
appointees would have the ability to threaten the livelihoods of honest 
VA workers trying to follow VA regulations and policy, thus reinforcing 
the culture of fear and reluctance to speak out against poor management 
or malfeasance at the VA. If these employees were fired, they would 
have very little opportunity to tell their side of the story.
  H.R. 1994 would make VA the only at-will workplace within the Federal 
Government. Veterans desperately need our Nation's top doctors, nurses, 
and counselors to choose to work at the VA, and it is already hard 
enough to recruit them away from the private sector.
  An article last week in USA Today found that VA has 41,500 unfilled 
medical jobs, ``forcing vets into costly private care.'' Removing basic 
civil service protections--and basic fairness--would make VA an even 
less desirable place to work and add to these recruiting woes.
  Keep in mind that over 30 percent of VA employees are veterans 
themselves. They deserve better than to find themselves in a workplace 
that strips them of basic constitutional protections--again, 
protections that they fought to defend.
  This bill is nothing more than an attempt to destroy the civil 
service using the VA as a test case. It would empower the very 
individuals who have often perpetuated the worst VA scandals--VA 
managers--to threaten the livelihood of hard-working, frontline VA 
employees and silence the voices of the whistleblowers we rely on to 
tell us when something is wrong.
  For all of our frustration with the VA, the continued existence of a 
nonpartisan civil service is vital if we are to fix the mess at the VA 
and provide our veterans with the benefits and services that we have 
promised them and that they have earned.
  As the Merit Systems Protection Board has stated in a report from 
May: ``Due process is available for the whistleblower, the employee who 
belongs to the `wrong' political party, the reservist whose periods of 
military service are inconvenient to the boss, the scapegoat, and the 
person who has been misjudged based on faulty information. Due process 
is a constitutional requirement and a small price to pay to ensure the 
American people receive a merit-based civil service rather than a 
corrupt spoils system.''
  We should not, under the guise of ``accountability,'' destroy one of 
the best tools we have to provide the benefits and services we have 
promised our veterans. That tool is a nonpartisan and nonpolitical VA 
workforce.
  We need to take steps to protect the vast majority of the high-
performing VA workforce from being fired at the whim of capricious or 
retaliatory managers or political appointees, not to make it even 
easier.
  I believe H.R. 1994 violates our Constitution. The administration has 
issued a veto threat, and if enacted, H.R. 1994 would not stand up in a 
court of law. Ultimately, veterans would be harmed the most when courts 
overturn this policy and then reinstate bad employees at the VA.
  Instead of scapegoating the vast majority of hard-working VA 
employees, Congress should look for real opportunities to reform our 
civil service in a manner that is constitutional, while providing 
adequate resources and better policies to provide outcomes at the VA.
  I reserve the balance of my time.
  Mr. MILLER of Florida. Mr. Chairman, it is amazing that every single 
Democrat in the Congress last year voted in favor of the very same 
rules and regulations.
  I yield 1\1/2\ minutes to the gentleman from Colorado (Mr. Lamborn), 
from the Fifth Congressional District.
  Mr. LAMBORN. Mr. Chairman, I rise in strong support of H.R. 1994, and 
I thank Chairman Miller for bringing this critical issue to light.
  Like the chairman, I am on the side of veterans, and we in this 
Nation have a sacred trust to take care of the men and women who have 
defended our freedom. Without accountability in the VA, we cannot 
properly care for our

[[Page H5626]]

veterans. While I believe the great majority of VA employees are 
dedicated and hard-working Americans doing the right thing for our 
veterans, there are those in the VA who have not acted in the best 
interest of our veterans, and these individuals must be terminated.
  The fact that only three employees were successfully fired due to 
wait time manipulations is a disgrace. The current system is broken. 
Poor and mediocre performance that endangers our veterans should not be 
tolerated.
  H.R. 1994 will help remove bad actors more easily from the VA system, 
enabling the remaining dedicated employees to better serve our 
veterans. The bill will protect whistleblowers.
  Accountability in the VA needs to happen now, and I urge my 
colleagues to support H.R. 1994.
  Mr. TAKANO. Mr. Chairman, may I inquire as to how much time is 
remaining?
  The CHAIR. The gentleman has 23 minutes remaining.
  Mr. TAKANO. Mr. Chairman, I yield myself such time as I may consume.
  Just in quick response to my good friend, Chairman Miller, bringing 
up the issue of the SES provision, yes, most of us did vote for the 
Choice Act, the provision that dealt with the SES reform to make it 
easier to fire those employees. That number of employees is a very 
small number. It is about 400. We are talking about addressing the 
entire 300,000-strong employees.
  Let me just say that at the time I wish we had spent more time 
reviewing the constitutionality. I do believe the constitutionality of 
that action is also in question.

  Mr. MILLER of Florida. Will the gentleman yield?
  Mr. TAKANO. I yield to the gentleman from Florida.
  Mr. MILLER of Florida. I thank my good friend for yielding, but I 
would also say that the Constitution of the United States protects even 
a single individual. So to say that it is only a small group should not 
be anything in this discussion.
  I would assure you that the President of the United States would have 
had ample time to be able to go through and review it before he signed 
it into law.
  Mr. TAKANO. Reclaiming my time, let me just say that I believe the 
Constitution applies to the Senior Executive Service as well as all of 
the 300,000 employees of the Veterans Administration.
  I yield 2 minutes to the gentlewoman from Nevada (Ms. Titus).
  Ms. TITUS. Mr. Chairman, as a member of the House Veterans' Affairs 
Committee, I rise in strong opposition to H.R. 1994, the so-called VA 
Accountability Act of 2015.
  We all agree on the importance of accountability for those who care 
for our Nation's heroes, but this is the wrong way to go about it. We 
are indeed throwing out the baby with the bathwater.
  My colleagues have outlined a number of reasons to oppose this 
legislation, including questionable constitutionality, the elimination 
of longstanding and important due process procedures for employees, and 
the damage it would do to whistleblower protections; but I would like 
to focus on the big picture, on the impact this will have on VA 
employees, many of whom are veterans themselves, and on our efforts to 
recruit the best employees possible to serve our veterans.

                              {time}  1500

  This legislation takes VA employees, from janitors who clean the 
facilities and guards who protect the hospital, to the nurses caring 
for our Nation's heroes and the doctors providing critical care for our 
veterans, and moves them into second-class status.
  If H.R. 1994 passes, we will create a two-tiered Federal system, with 
VA employees less respected, less rewarded, and less protected than 
others. The VA already struggles to attract the best and brightest to 
serve our Nation's heroes. If this legislation passes, we will make it 
even harder to recruit and retain the most qualified and best trained 
workforce at the VA.
  I know this because, in Las Vegas, we face challenges to fully staff 
our brand-new state-of-the-art hospital, and if the bill passes, we 
will lose an important recruitment tool, and our veterans will be the 
ones who are hurt.
  Let's not fool ourselves here. This is just another piece of the 
Republican agenda to demonize public employees and privatize government 
services. Today, it is the VA. Tomorrow, it will be another agency that 
they don't like--who knows, the EPA, the TSA, the FAA, the USDA.
  I urge my colleagues to oppose this legislation. Don't ``Scott 
Walkerize'' the Federal Government.
  Mr. MILLER of Florida. Mr. Chairman, I yield 2 minutes to the 
gentleman from Florida (Mr. Bilirakis), vice chairman of the full 
committee and my colleague from the Second Congressional District of 
Florida.
  Mr. BILIRAKIS. Mr. Chairman, I rise today to support the VA 
Accountability Act. The brave women and men who return from serving our 
country should be able to receive timely access to quality care. Our 
veterans have earned our respect and admiration.
  In general, I believe that most employees at the VA are dedicated to 
our Nation's heroes. However, a culture of mediocrity has permeated the 
VA. Too many employees who perform terribly are not fired.
  This bill before us today will allow the VA Secretary to fire 
employees more easily, but the heart of this issue is about the quality 
of care for veterans. If bad actors stay at the VA, that hurts 
veterans.
  Opponents speak in hypotheticals, but hypotheticals mean nothing in 
the face of overwhelming evidence. We know about the real negligence 
that goes on unpunished. This is a disservice to those who have borne 
the battle.
  The Washington Post reported on a VA employee who took a veteran 
seeking treatment for drug abuse to a crackhouse in a government 
vehicle and left the veteran there overnight. Sadly, it took over a 
year to fire that employee. That is inexcusable.
  According to the VA data given to the committee, only three VA 
employees have been fired since the Arizona wait time scandal, 
specifically for data manipulation. That is unreasonable.
  This bill is needed because our Nation's heroes deserve better. That 
is the bottom line. We must protect our veterans. Support this bill.
  Mr. TAKANO. Mr. Chairman, I yield such time as he may consume to the 
gentleman from New Jersey (Mr. Pascrell).
  Mr. PASCRELL. Mr. Chairman, I want to start by saying I am in 
opposition to this accountability bill, but I want to commend the 
chairman and the ranking member and the rest of the members of the 
Veterans' Affairs Committee. I think you have done a good job--and I 
don't come up here and say that too often--because you have made it 
bipartisan.
  Now, what possessed you to bring this bill to the floor and use the 
word ``accountability,'' I am trying to figure that out because we want 
accountability. I am a veteran, and I have fought.
  I have got a record for 18 years, in the forefront, running point on 
veterans issues, from waiting for so darn long to get an appointment, 
to the latest problems we have had in the VA concerning addressing our 
TBI patients and our post-traumatic stress disorder patients. No one is 
more disappointed than me in what transpired in the VA last year.
  As a vet, I was proud to support the bipartisan VA reform legislation 
that became law in response, but this bill isn't about making the VA 
better or ensuring better care and treatment for our veterans.
  This bill is about trying to score some political points, an 
underhanded attempt to strip VA employees, and I don't think you really 
want to do that, but that is the result.
  Mr. MILLER of Florida. Will the gentleman yield?
  Mr. PASCRELL. I yield to the gentleman from Florida.
  Mr. MILLER of Florida. Did you vote for the Veterans Access Choice 
and Accountability Act last year?
  Mr. PASCRELL. Yes, I did.
  Mr. MILLER of Florida. This language is the same language that was in 
there. It does not take away the rights that you say are being taken 
away. You voted for the same thing last year.
  Mr. PASCRELL. Reclaiming my time, in the context of what we did a 
year ago and the context of what is now under the guise of 
accountability is very different to me. I read both bills, the one we 
voted on last year and this bill.

[[Page H5627]]

  There is important workplace protections that do not exist in this 
bill, and that is my position. We cannot start off by blaming unions, 
blaming the VA.
  We have been through this before. There are some bad actors there. We 
are trying to get rid of them, and I want to get rid of them faster 
than you want to get rid of them, but I don't want to take down the 
whole group.
  We paint with a very wide brush. We have done this with other Federal 
agencies. The reality is that the civil service protections available 
to these employees and all other Federal employees actually protect 
whistleblowers--that is in the law already--and allow them to come 
forward when they see wrongdoing, without fearing some retaliation.
  Whistleblowers were how we discovered the problems, Mr. Chairman, in 
the first place. That is how we found out about what was going on in 
Phoenix and in some other places. Correct me if I am wrong; I think you 
will agree with me.
  I agree that poorly performing employees have no place at the VA--or 
any other Federal agency for that matter. We agree on both sides of the 
aisle. We can't--as some have said, you guys are in favor of the vets, 
and we are not in favor of the vets.
  Come on. We are away from that. We did that 15 years ago. That didn't 
work.
  I agree that poorly performing employees have no place at the VA--or 
any other Federal agency, not just this one. This demonization of 
government employees that my colleagues are spearheading does not 
encourage productive work and, frankly, is just plain wrong.
  I urge my colleagues to oppose this legislation. We are not going to 
make these folks any more accountable by demonizing the work.
  By the way, just as you can't have community policing without police, 
you have got to understand, you cannot have service with thousands and 
thousands of positions being vacant because you don't want to spend the 
money.
  That is at one of the cores; it may not be the most fundamental 
reason. That is one of the reasons at least why we can't provide 
service.
  The Acting CHAIR (Mr. Byrne). The Committee will rise informally.
  The Speaker pro tempore (Mrs. Walorski) assumed the chair.

                          ____________________