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3.22.2016

Attorney Debra D'Agostino Challenges Congress's MSPB Stance in New Article

Written by: Federal Practice Group
Written by: Federal Practice Group

News & Media

Attorney Debra D'Agostino elaborated on her take on the latest development in the recent Veterans' Affairs corruption controversy in a new blog at Government Executive. In "Congress is Just Wrong About the MSPB," Attorney D'Agostino says that Congress's response to the Merit Systems Protection Board overturning of VA disciplinary decisions "could not be more wrong about where the system is broken and what needs to be done to fix it."

The case she is referring to involves a 10 month-long VA investigation into its own employees who were found to be using their position to manipulate the relocation program incentives in their own favor. While there is little debate that the managers in question acted inappropriately, the VA's discipline (to demote the managers from SES to a GS-15) was found to be inconsistent by the MSPB. Why? Because other, unpunished managers at the VA had acted in a similar fashion.

CONGRESSIONAL CRITICISM

House Veterans' Affairs Committee Chairman Jeff Miller called the latest MSPB rulings on this matter "yet another MSPB ruling that defies common sense." He added: "It is encouraging that VA Deputy Secretary Sloan Gibson is finally starting to realize what nearly every‎ objective observer concluded long ago: the MSPB coddles and protects misbehaving employees rather than facilitating fair and efficient discipline."

According to Attorney D'Agostino, however, this view of the MSPB is not supported by the facts. In the last 12 months, the three judges on the MSPB have ruled in favor of the employees in question a mere five times. In the board's annual 2015 report, the MSPB revealed that of the approximately 25,000 cases it decided that year, nearly a third of them filed by employees were dismissed. The ones that weren't dismissed? The MSPB ruled in the employees favor just 1% of the time. As Attorney D'Agostino writes, "These are tough odds by any standard, and if this is 'coddling' employees who commit misconduct, I must misunderstand the word."

You can read all of "Congress is Just Wrong About the MSPB" at the Government Executive site.

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