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SEA Sends Letter Opposing Senate VA Accountability Bill

Dear Chairman Isakson, Ranking Member Tester and Members of the Committee:

On behalf of the Senior Executives Association (SEA) and its members, who are career federal executives
in the Senior Executive Service (SES), and those in Senior Level (SL), Scientific and Professional (ST), and
equivalent positions, including those serving at the Department of Veterans Affairs (VA), I write in regret
to convey our opposition to S. 1094, which strikes at the heart of the career‐run merit based civil service
system by empowering the VA Secretary and political appointees to conduct wholesale political firings of
VA senior executives. Enacting such a provision is not in veterans’ best interest.

The specific provision of concern is at Title II, Section 201, 713(c) which, if enacted, would not apply the
provisions of Section 3592(b)(1) of title 5 to actions taken under the provisions of the section. This
language would eliminate essential protections provided by Congress to career federal executives and
enable undue or politically influenced terminations of dedicated VA senior executives. Coupled with
provisions to provide direct hire authority for medical center directors and VISN directors, this
legislation could trigger a return to the spoils system of patronage that was a hallmark of the federal
civilian workforce prior to the passage of the Pendleton Act of 1883, and it’s modernizing legislation the
Civil Service Reform Act of 1978 (CSRA).

While it might seem logical to assert that the elimination of appeal rights to the quasi‐judicial
independent Merit Systems Protection Board (MSPB) for VA senior executives will improve
accountability and agency culture, it makes less sense when one considers MSPB’s history and record.
Historically, in both Republican and Democratic administrations, the MSPB has had an average 85%
affirmation rate of agency decisions, meaning agency personnel actions were upheld. We have no
reason to believe that this outstanding record would not be maintained in 2017.

Congress specifically created the MSPB in the CSRA as a specialized independent agency of subject
matter experts who could adjudicate federal personnel cases so the federal courts did not need to,
except upon appeals, as demonstrated by an MSPB flowchart. Is it really the most efficient use of our
under‐resourced federal judiciary to charge it with taking on individual federal employee personnel
cases? The SEA believes it does not and could prove ultimately harmful to everyone’s overall goal of
creating a 21st Century workforce at VA and throughout the federal government.

Provisions in this legislation focused on improvements in workforce management, accountability and
incentive structures are welcome, but do not address the core issues affecting management and
accountability of the VA workforce, such as non‐statutory negotiated employee review processes.
Veterans deserve a substantive and comprehensive workforce management, accountability, and
incentive structure that not only focuses on how to hold VA employees accountable, but that also
contains provisions to ensure the success of VA employees. This legislation does little to improve or
invest in the VA workforce’s ability to execute its mission.

We believe this legislation, and Congress’ actions to reform the civil service in general, should reflect
fact‐based studies, not alarmist anecdotes. According to a recent MSPB study, Federal supervisory
employees report that agency culture (80%), the degree of support given by managers and leaders
above (77%), and the quality of service provided by my human resources office (76%) are their top three
barriers to addressing employee misconduct. On a list of 19 of the most difficult tasks they faced as
managers, addressing serious misconduct ranked 14th. Getting a pool of quality candidates to hire from
came in first. The same study revealed misunderstanding by management employees about procedures
and burdens of proof required to hold employees accountable, a finding that is not addressed by the
inclusion of comprehensive supervisory training provisions in the legislation. Nor does this legislation
address the manner in which supervisory employees are selected or developed as leaders, which could
help address issues with whistleblower protection and retaliation.

Passage of this legislation can only serve to exacerbate VA’s hiring woes, further straining its ability to
attract talent to over 45,000 vacant positions at the agency. The VA has struggled to fill critical positions
due to systemic issues that have plagued the agency and created a toxic and unmanageable
environment. It is unclear how the creation of a new political appointee, the Assistant Secretary for
Accountability and Whistleblower Protection, even if Senate‐confirmed, will provide the leadership
capability and management stability to drive sustained effort to improve VA’s workforce culture. A term
appointment of five years or longer would provide better stability and independence to the position.

A 2016 survey of VA senior executives, conducted by SEA, unveiled the most significant threats to
retention among career senior executive leaders, with nearly three in four respondents saying that
unfair media and congressional scrutiny, lack of agency leadership support, and diminished or complete
inability to be considered for performance‐based awards were causing them to consider leaving the VA.
Those same factors continue to obstruct the VA’s ability to attract and retain the best career senior
leaders, with 97% of respondents saying they were concerned about the ability of the agency to fill
crucial roles.

SEA would welcome an opportunity to work with the Committee to develop a forward‐thinking
accountability framework that accomplishes both goals: holding all civil servants accountable for
misconduct or poor performance, while investing in the development and capability of civil servants to
achieve an agency’s mission and incentivizing them to complete work in the most effective and efficient
manner possible. We believe developing such a framework is possible and would have many positive
effects. SEA is committed to the continued improvement of the federal government and the services we
provide to the American people.

We fully understand that there are serious challenges facing the VA, and that the need to address those
problems is immediate. Unfortunately, this legislation is not the solution.

Thank you for considering SEA’s views. If you have any questions or comments, please contact SEA’s
Executive Director Jason Briefel at 202‐971‐3300;

Bill Valdez

CC: Members of the Senate Committee on Veterans Affairs;
The Honorable Marco Rubio

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