Says who?

Congress wants to further undermine due process for VA employees

Long ago, schoolyard arguments, perhaps over sports teams or whose father was “tougher” would end in the taunt by one boy to another of “Says who?” Rhetorically, this question is one of an appeal to authority, with the question phrased as an inherent question to the authority of the boy making the previous assertion.

Judicial decisions fundamentally ask that question all the time. Says who? And the means of finding an answer necessarily involves the concept of due process. In employment law, context matters, as some jobs are “terminable at will,” meaning an employee may be fired at any time for no reason.

However, for federal workers, the civil service laws and agency procedures prohibit this type of summary termination. Most federal workers are entitled to due process if they are to be fired, where they can question their firing and object if that termination violated the law or the agency’s requirements.

Many questions with the VA hospital system

The recent problems within the VA hospital system have become a flash point for Congress and the American people, who have viewed it as a disservice to the veterans the agency is supposed to provide medical care for.

While legitimate questions have been raised about management practices that led to many of the problems in the agency, Congress’s solution has been to demand the ability to fire members of the senior executive employee level more quickly.

What about due process?

The problem is, firing someone more quickly may not comport with standards of due process, or as in a recent case, the evidence may not actually support the firing. The case of a woman who appears to have manipulated transfer procedures to enable her to move one employee to a Baltimore job while allowing her to take that employee’s position in St. Paul.

The decision was approved by the VA chain of command and that appears to be where the problem lay for the administrative law judge who reviewed the decision and reversed the VA firing decision.

Discovering what happened takes time

While the moves may have created “an appearance of impropriety,” the failure of the VA’s management hierarchy to condemn or even comment on the move led the ALJ to find the VA’s decision to fire her as being unreasonable.

With an agency as large as the VA, it is simply not possible to expect to make hiring and firing decisions based on whim and with insufficient evidence or adequate investigation. Claiming someone should be fired must be supported by valid evidence demonstrating the failure to comply with proper standards.

What critics often fail to understand is that while some cases will present valid reasons that are clear and indisputable, in a great many cases, what exactly happened will be far from clear.

Knee-jerk firings and an absence of due process is unlikely to make for better hiring and firing decision, and may result in as much unfairness as the current system. It also may be used to mask other types of wrongdoing, such as the firing of whistleblowers.