As reported by the Federal News Network on July 31, thousands of fired workers will be eligible for either reinstatement or back pay, at a total cost estimated “to be in the hundreds of millions of dollars.” Hundreds of former employees “who the VA and AFGE mutually agreed were terminated for grievous misconduct will not be eligible for return to work,” the VA announced.
“This agreement will allow VA and AFGE to move forward and focus on what matters most: delivering world-class care and benefits to veterans, their families, caregivers and survivors,” said VA Secretary Denis McDonough. “Union employees are the backbone of VA’s workforce, and we are proud to support them.” AFGE National President Everett Kelley called the settlement “historic” and a demonstration of “what’s possible when labor and management come to the table in good faith to solve problems together.”
Due Process Still Under Fire
Their joint announcement ended a long legal battle over the VA Accountability and Whistleblower Act, Trump-backed legislation enacted in 2017, with bipartisan support. That struggle began when—as the Federal Labor Relations Authority (FLRA) later found—Trump’s VA Secretary Robert Wilkie refused to bargain with AFGE over the impact and implementation of the new law. In an August interview with News Max, the right-wing media outlet, Wilkie blamed Biden, not an arbitrator, the FLRA and a federal appeals court, for “negating the authority that President Trump gave me” to “circumvent the usual bureaucratic protections that bad employees use to stay on for life.”
On the presidential campaign trail, Wilkie’s former boss is promising to put the Accountability Act “back in full force” when and if he returns to the White House. Trump’s Republican allies in the House are also trying to pass the “Restore VA Accountability Act,” to fast-track VA firings in the future, whether Trump wins or not. Their bill would allow the third largest federal agency to demote, suspend, and fire workers based on a lesser standard of proof already successfully challenged in a federal appeals court decision. According to AFGE, it would also undermine the new collective bargaining agreement the national union reached with the VA earlier this year and ratified in June.
How did federal employee due process rights become a 2024 campaign topic? The back story is worth recalling because Trump launched an all-out assault on workers’ rights during his four years in office; a second term could be even worse. As noted above, bipartisan majorities in the House and Senate voted six years ago to weaken due process protections for VA employees and limit their right to appeal job-related discipline. Among Democrats, the legislation was backed by now Sen. Kyrsten Sinema (I-Ariz.), a Democrat at the time and a big proponent of out-sourcing veterans’ care to the private healthcare industry.
A leading Republican champion was Sen. Marco Rubio (R-Fla.), whose 2016 reelection campaign for the Senate received financial help from the Concerned Veterans for America (CVA), an astro-turf group backed by the Koch Brothers to further their agenda of VA privatization and union busting. During Trump’s first year in office, CVA made a six-figure investment in getting the Accountability Act passed, via media buys and creation of a digital tool that facilitated direct lobbying of members of Congress. This campaign gained credibility when old-line Veterans Service Organizations (VSOs), which has an actual membership base, bought into the idea that the VA needed new tools to weed out bad managers and bargaining unit members.
Part of a Larger Plan
Ian Hoffmann, a former AFGE legislative and political organizer, helped VA caregivers lobby against the measure because, in his view, “it was part of a larger plan to dismantle and privatize the VA by weakening the collective voice of its workforce.” In the leadup to the vote, he recalls, “it quickly became clear what we were up against. Lobbying in Nevada and California, we heard expressions of sympathy from our ‘friends’ in Congress, but many were swayed by VSO support for the Accountability Act. One staffer told us that her member of Congress was getting mail, which favored passage of the legislation by a 10-1 margin. When pressed, she acknowledged that the letters were almost entirely from templates provided by the CVA.”
In his later work with frontline VA caregivers, Hoffmann saw firsthand “how the actions of top managers appointed by Trump, who were hostile to the mission of the agency, used the Accountability Act to make personnel policies, working conditions, and staffing levels immeasurably worse.” This had a far greater adverse impact on nine million patients than any individual failings of union-represented workers or lower-level managers in the nation’s largest public healthcare system.
In 2018, Trump used a series of executive orders to further modify disciplinary procedures, weaken seniority rights, and limit the long-established practice of allowing union stewards to spend compensated time representing their coworkers during working hours. VA management began to remove AFGE offices from agency property, making it harder for workers with job-related questions and concerns to access union reps. A union lawsuit temporarily blocked these changes, but they were finally implemented in February of 2020. In contract bargaining with AFGE and other VA unions, Trump appointees sought major concessions from AFGE, including weakening job safety and health protections.
Whether VA employees belonged to a union or held a career manager job, the Trump administration succeeded in creating a toxic work environment for many of them. In the view of Steve Robertson, former legislative director for the American Legion and a past Senate Veterans Affairs Committee staffer, the VA’s new personnel policies did far-reaching and intentional damage. “It no longer made sense for people to prioritize the VA when seeking government work,” he points out. “Why would someone come to work at the VA when they could work at the DOD or NUH or other agencies where there were more protections?”
As AFGE attorney Cathy McQuiston noted, when the union launched its legal fightback in 2018, the Trump Administration was implementing the Accountability Act “in the most harmful way and the broadest way it can. And it will only pull back from doing that if ordered to do so by some third party.”
Whistleblower Protection for Who?
As we report in our book, Our Veterans: Winners, Losers, Friends and Enemies on the New Terrain of Veterans Affairs, during the first six months that the VA Accountability Act was in effect, only a handful of higher-level officials were removed for their poor performance or misconduct. Meanwhile, there were 1,264 other discharge cases—all involving low-level employees who worked in VA claims processing, food service, and custodial jobs. Veterans comprise about a third of the agency’s workforce and some VA patients, with a history of homelessness or mental illness, can qualify for compensated work-therapy programs at VA facilities. Even these disabled workers were at risk of unfair discipline under the Accountability Act.
The 2017 law also established an Office of Accountability and Whistleblower Protection, with dozens of investigators. Its first director, Peter O’Rourke, was—like then-VA Secretary Wilkie—a former Republican Party operative not very interested in rooting out “corrupt bureaucrats” among his fellow Trump appointees. At the VA, O’Rourke ended up “collecting pay, but doing little work,” as the Washington Postreported. He was forced to resign in 2018. During O’Rourke’s brief tenure, he was also accused of protecting political allies, within the agency, who were under investigation and not providing timely reports to Congress. As of late 2019, several thousand whistleblower complaints had been received, but only one resulted in any recommended discipline of a senior official, according to the Project on Government Oversight.
In the meantime, a dedicated professional staffer of the VA in northern California—who became eligible for back pay and reinstatement under the AFGE grievance settlement—paid a heavy price for being a whistle-blower in 2017. Then a member of AFGE Local 2152, Patty Stamos was a licensed clinical social worker at a community-based clinic in Auburn, CA, which serves about 4,000 veterans. According to Stamos, “over fifty mental health patients, some high risk for suicide, failed to receive vital mental health care” during two periods of her approved absence.
After making this supposedly “protected disclosure” to management, Stamos became the subject of supervisory complaints about delays in her written documentation of work on a heavy case-load of patients. During her nearly five years at the VA, she had never been put on a Performance Improvement Plan (PIP) or received any actual prior discipline. But, in early 2018, she was fired.
Stamos believes that the Accountability Act, contrary to its stated purpose, “did not hold VA mental health management accountable for abuses of power and neglect of veterans. It did not protect me, or any other VA employee from Whistleblower retaliation. And it did not protect vulnerable veterans whose mental health treatment was sidelined for months.” Last month, Stamos left her job at a private and returned to work at the VA clinic in Auburn, where she was fired more than five years ago. She has been assigned to a new position, rather than her preferred old one, and “still has not seen a dime of back pay.” She estimates that her back pay, minus interim earnings, will amount to hundreds of thousands of dollars.
Accountability Act, the Sequel?
As Stamos and other Accountability Act victims await full compensation for their financial losses, VA unions and their allies are warning Congressional Democrats not to join Republicans—and Donald Trump—in further costly and counter-productive grand-standing about VA worker “accountability.” On Capitol Hill, the “Restore VA Accountability Act” has backers like House Veterans Affairs Committee Chair Mike Bost (R-Ill.), who claims to be once again just targeting that “small percentage of employees who are hurting veterans” through their poor performance or personal misconduct.
In its letter of opposition, the Partnership for Public Service, a non-partisan, non-profit group, argues that the legislation backed by Bost would “erode and eliminate the role of third, party independent executive review” of discharge cases by the Merit Systems Protection Board (MSPB). “This approach unnecessarily compromises due process for line employees while reducing accountability for senior executives and political leaders during removal proceedings,” the Partnership points out.
The National Federation of Federal Employees (NFFE), which represents about 9,000 nurses, medical officers, pharmacists, and social workers at the VA, reminded Congress that the last time it lowered the burden of proof for misconduct from a “preponderance of the evidence” to “substantial evidence,” the result was disciplinary action based on scant evidence of wrongdoing.
AFGE’s objections include the fact the “Restore VA Accountability Act” would result in more employees being disciplined before being put on a Performance Improvement Plan. Echoing former Legion official Steve Robertson’s observation about the impact of the original Accountability Act, the union warned that “diminishing the due process and collective bargaining rights of VA employees compared to federal employees in other agencies” will “dissuade potential employees from working at the VA” if similar jobs are available with better protections elsewhere in the federal government.
Other critics fear that any negative impact on new hiring will make it harder for the VA to meet the expanded demand for its services created by passage of the PACT Act last year. That legislation allocated $280 billion, over the next ten years, for healthcare and benefits for hundreds of thousands of former soldiers suffering from burn pit exposure in Iraq and Afghanistan. According to Don Kettl, a former dean of the University of Maryland School of Public Policy, the Bost bill “is a serious mistake that would harm the Department of Veterans Affairs and injure the nation’s effort to care for those who have given so much to it.”
In the Republican-dominated U.S. House, the current volume of seriously mistaken legislation is so large that a bill claiming to “restore accountability” at the VA doesn’t draw much attention and might even sound like a good idea. But legislation passed six years ago, under that same misleading label, proved to be detrimental to veterans, their care-givers, and taxpayers who fund the VA healthcare system. So Trump’s recent campaign pledge to restore “historic VA reforms” like this in 2025, if he’s elected next November, is a political threat that needs to be taken very seriously.
