NEW STATUTES EVERYWHERE

Readers: take a look at the White House legislative website, and what to your wondering eyes will appear (not a miniature sleigh and eight tiny reindeer), but three new pieces of legislation. And what are they? Check them at whitehouse.gov/briefing-room/signed-legislation 

I. WHISTLEBLOWERS

The "Follow the Rules Act" expands the 2012 Whistleblower Protection Enhancement Act, 5 USC 2302(b)(9), to broaden protection from those who refuse to follow an order requiring violation of a law to those who decline to obey an order requiring violation of a rule or regulation.

II. MORE WHISTLEBLOWERS

OSC can apply for an initial stay through application to the MSPB, and one member of the Board has the authority to enter the stay. But an extension of that stay required two Board members' votes. With no quorum to be found these days, no extension of an initial stay could be had. But, to remedy the situation, there's been a legal fix, "An Act to amend section 1214 of title 5, United States Code, to provide for stays during a period that the Merit Systems Protection Board lacks a quorum." Long title; simple result: when the Board lacks a quorum, one member can extend a stay.

III. YET MORE WHISTLEBLOWERS AND MORE CHANGES IN ADJUDICATION OF ACTIONS AGAINST VA EMPLOYEES

Considerably moving the goal posts for VA employees, we have the "Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, essentially establishing new standards for adjudication of personnel actions.

An Office of Accountability and Whistleblower Protection is established, to be headed by a presidential appointee at the level of Assistant Secretary, reporting to the Secretary. We will call this the Assistant Secretary for Whistleblower Protection and he or she will receive whistleblower disclosures, refer them for investigation, and ensure implementation of recommendations resulting from investigations into those disclosures. The Assistant Secretary will also receive and evaluate and make recommendations to the Secretary as to disciplinary action for alleged misconduct, reprisal, or poor performance involving VA senior executives, confidential employees, and supervisory employees if the allegation involves whistleblowing disclosure.

Supervisors will be trained and held accountable under their performance standards for ensuring whistleblower protection.

Removal procedures for senior executives are (again) revised so as to permit an SES member who is suspended, involuntarily reassigned, demoted, or removed for misconduct or performance to, following a due process reply, grieve the action under a VA internal grievance process that is completed within three weeks. The grievance decision is final and subject to judicial review based on ordinary appellate review standards. The statute appears to permit an action against a VA SES member to proceed under pre-existing civil service statutes, including an MSPB appeal; but further explanation will be required from VA or congressional reports.

And, as to other VA employees (not those covered only under Title 38), they may be removed or demoted or suspended for performance or misconduct. No administrative leave is permitted while the action is being pursued. The total notice period, including the time for reply, is 15 business days. For removal or demotion or suspension exceeding 14 days, there is an MSPB appeal, if the appeal is taken within 10 business days from the effective date. The MSPB AJ is to issue a "final and complete decision" within 180 days from the appeal. And, the VA decision is to be upheld if it is supported by substantial (rather than preponderant) evidence, with no opportunity for mitigation if the agency decision is supported by substantial evidence. The decision of the AJ may be appealed to the MSPB, and from there to the Federal Circuit.

As to employees seeking corrective action from OSC for whistleblowing reprisal, the Secretary may not take action against the employee without OSC approval. If the whistleblower allegation is made to the Assistant Secretary, final action against the employee is not to be taken until the related investigation is closed out.

Add to the statutory changes a provision for reduction in annuities of employees who are removed in conjunction with conviction for felonies.

The statute allows recoupment of bonuses or awards made to VA employees if the Secretary determines that the employee engaged in misconduct or poor performance prior to the award or bonus and that the bonus or award would not have been paid had the misconduct or performance been known prior to payment. A similar provision applies to recoupment of relocation expenses procured through fraud or malfeasance related to those expenses.

The annuity reduction and bonus and relocation expense recoupment provisions are subject to notice and reply rights, along with the opportunity for an appeal to OPM.

The statute speeds up processing of actions against VA medical professionals and requires training of supervisors on: avoidance of hostile work environment or reprisal; motivation of subordinates; and better management of employees who are not performing at an acceptable level.

For the text of the statute, refer to whitehouse.gov/legislation/s-1094-department-veterans-affairs-accountability-and-whistleblower-protection-act-2017