The New VA Reform Bill (S. 1094): What Changes Are Coming?

On June 13, 2017, the House joined the Senate in approving a VA reform bill aimed at making it easier to discipline employees of the Department of Veterans Affairs.  As President Trump has already stated he will sign the bill as soon as it reaches his desk, it appears certain that substantial changes are going to be made to the VA disciplinary process.

First, the S. 1094 will create a new framework for the discipline of VA employees, speeding up the process significantly.  It will require the VA to give notice of proposed discipline, accept a response, and make a decision on the proposal within 15 days.  Non SES-employees will still have a right to appeal to the Merit System Protection Board, but must file the appeal within 10 days of the adverse action, as opposed to the current 30 day deadline.  Furthermore, the Board will be required to issue a decision on the case within 180 days.

While non-SES employees would still have the right to appeal to the Board, S. 1094 strips away  SES-employees right to appeal to the Board.  SES employees will need to appeal their discipline through an internal appeals process that will take no more than 21 days.  However, should the internal appeals decision still be adverse, the SES-employee may appeal the Agency’s decision to a U.S. District Court.

Second, and perhaps most controversially, S.1094 establishes a new evidentiary standard used by the Board in reviewing issues of discipline.  The Board currently reviews removals and other appealable adverse actions on a “preponderance of the evidence” standard, which means that the Agency must prove that the charges for which a VA employee was disciplined more likely than not occurred.  This bill would move the Board to a substantial evidence standard, which would only require that the VA show that there is relevant evidence that would lead a reasonable person to support the discipline.  The substantial evidence standard is the lesser of the two standards, and will make it easier for the VA to not only remove employees, but to have that decision upheld by the Board.

If you are a VA employee, and facing disciplinary action, it is imperative that you do not wait to seek legal advice.  Our attorneys are well versed in the procedural requirements and disciplinary process, and can assist you in protecting your livelihood.  Call (202) 462-6036 or email us today to schedule a consultation with an experienced federal employment attorney.

The In’s and Out’s of Suitability Determinations

We posted a news update last week about how Trump’s hiring freeze will affect new federal employees who have not yet been deemed suitable for employment. Read below to learn more about suitability determinations.

Who is required to undergo suitability determinations?

Positions requiring a suitability determination are those in the competitive service, positions in the excepted service where the employee can be noncompetitively converted to the competitive service, and career appointments to a position in the Senior Executive Service. The Office of Personnel Management (OPM) is tasked with making suitability determinations for new federal employees.

Making suitability determinations

The following factors are considered in determining whether an individual is suitable for federal employment:

  • Misconduct or negligence in employment;
  • Criminal or dishonest conduct;
  • Material, intentional false statement, or deception or fraud in examination of the appointee;
  • Alcohol abuse, without evidence of substantial rehabilitation;
  • Illegal use of narcotics;
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government.

What else will OPM consider?

OPM may also consider the following:

  • The nature of the position for which the person is applying for;
  • The nature and seriousness of the conduct;
  • The circumstances surrounding the conduct;
  • The recency of the conduct;
  • The age of the person involved at the time of the conduct;
  • Contributing societal conditions;
  • The absence or presence of rehabilitation or efforts towards rehabilitation.

Can suitability be challenged after appointment?

Yes! OPM may initiate a suitability action at any time. OPM is required to notify an employee in writing of the proposed action, and allow the employee to respond in writing. You are permitted to hire a lawyer if you are facing a proposed suitability action.

Successful Suitability Cases

  • We were retained by a recent college graduate who received a job offer from the federal government. On his suitability questionnaire, he honestly disclosed his prior drug use and arrest for underage drinking. The government found him unsuitable for federal employment. Our firm submitted a response, arguing that the client had been completely rehabilitated. He graduated from college with honors, was an excellent employee at his prior job, and had a new group of friends. We also emphasized that recreational drug use was very common among college-aged people. The government reversed its decision and allowed our client to begin his job.
  • U.S. Customs and Border Protection – A federal employee with over 8 years of federal service contacted us after she received a proposal to remove her from her position and the federal service due to a negative suitability determination based on allegations that she had engaged in misconduct/negligence in employment and dishonest conduct related to her disclosures in her job application. We submitted a written response demonstrating that she had in fact provided honest disclosures and many of the cited incidents were verbal warnings that did not require disclosure. Based on this submission, the agency reinstated her and determined that our client had illustrated that she did not commit the infractions alleged.
  • Peace Corps – A federal employee contacted us after receiving a proposal to terminate his employment as a result of an adverse suitability determination based on allegations that he made material, intentional false statements on his declaration for federal employment. We submitted a response to the proposal demonstrating that the employee misunderstood a particular question and believed that he had responded truthfully on his declaration for employment. The agency overturned the adverse suitability determination and cancelled his proposed removal.

If you have questions about suitability determinations or if you are facing a purposed action, we can help! Call Alan Lescht & Associates, P.C. at (202) 463-6036, or email alan.lescht@leschtlaw.com.

Check back next week for a discussion of security clearance.

No such thing as nepotism in the Trump administration

Politico reports that the Justice Department has “blessed” the appointment of President Trump’s son-in-law Jared Kushner to a position as senior adviser in the White House, saying, in effect, that federal anti-nepotism law does not apply.

It seems to apply just about everywhere else – just not the White House.

What is nepotism, anyway?

Merriam Webster defines nepotism as favoritism based on kinship. In nepotism, a person in a position of power appoints or hires a family member wholly or in part because of those family ties.

In this case, Trump seeks to appoint Kushner to a senior adviser role, in which, among other things, Kushner would apparently work to resolve the Israeli-Palestinian conflict.

Is the President a public official?

Of course he is. Even the anti-nepotism law says so. In general, this law places hiring restrictions on public officials. And, yes, “public officials” includes the President and Congressional members.

Under 5 U.S. Code § 3110: “A public official may not appoint or employ […] in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.”

The language seems relatively clear, but like many laws (perhaps most), this one is subject to interpretation. It so happens that, in this case, the Justice Dept. interpreted the law in favor of the Trump administration. Its 14-page opinion argues that the law does not apply to the White House itself, as Politico reports, citing a 1978 law that gives the President wide latitude in appointing White House officials.

What does this mean for everyone else?

It now appears that Trump is free to appoint his son-in-law to a role in the White House, where the 36-year-old Kushner will presumably go from real estate developer to broker of peace among nations. Kushner’s “unwavering loyalty” to his father-in-law (as per Kushner’s Wikipedia page) will undoubtedly be a great asset to the new President.

But that doesn’t mean nepotism isn’t at issue here, at least where the law is concerned.

After all, it’s highly unlikely that Mom or Pop, as public officials in any other agency in any other place in the U.S., could so readily hire Son or Daughter to serve as a government employee in a similar manner. Doing so would likely violate anti-nepotism law.

MSPB Rights Of Federal Employees Who Retire In Lieu Of Removal

Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case, and this is not an easy burden to uphold.

Federal employees facing removal should call the employment lawyers at Alan Lescht and Associates, P.C. for advice and counsel before making critical decisions about their employment.