In his State of the Union address, President Trump urged lawmakers to make it easier to “remove federal employees who undermine the public trust or fail the American people.” As an example, he referred to the VA Accountability and Whistleblower Protection Act that he signed into law in June of last year.
As we mentioned at the time, that Act reduced the time employees have to respond to discipline, demotion or removal from service actions. It also lowered the standard of evidence required for discipline from a “preponderance of evidence” to “substantial evidence.”
The law also denied senior executives at the VA their previous right to appeal to the MSPB. They now are relegated to an in-house process. Designees of the secretary, who is a political appointee, are now empowered as the prosecutor, judge and appeals court, according to the Washington Post.
Trump lauded the results of the VA Accountability act, claiming that 1,500 VA employees had already been removed for cause. The VA claims that number was 1,737. However, even the higher number would represent only about a 2.5-percent increase in firings over the previous administration’s number, according to the OPM’s Fedscope database.
Moreover, the president of the American Federation of Government Employees says that the majority of those being fired have been among the lowest paid — and many were veterans with service-related disabilities.
Nevertheless, Rep. Barry Loudermilk (R-GA) claims that “firing bad civil service employees is close to impossible nowadays.” He has introduced a bill meant to “expedite the dismissal process of bad employees.” Other measures have also been proposed.
The effects of the VA Accountability law and arguments against the change
Previously, the VA had to prove its charges against employees by a preponderance of the evidence. That more or less means enough evidence to convince a fact finder that the charges are more likely true than not. Now the standard is by substantial evidence, which is much lower.
That makes the VA’s disciplinary decisions more likely to be upheld, and it may also mean that some marginal cases move forward to discipline when they would not have before.
The potential cost of this, opponents argue, is two-fold. First, the law undermines due process rights for employees. Due process is generally thought to be our adversarial systems’ most effective tool for getting at the objective truth, but it is being treated like an obstacle to efficiency.
Second, our civil servants are given due process not only to protect them from arbitrary job actions but also to protect the federal workforce from politicization.
Are we willing to give up due process and a non-political workforce to increase firings by 2.5 percent?