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Trump’s plan to use VA firing practices at other agencies threatens civil service workers — and the public

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

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About the only thing President Trump had to say about the federal workforce during his State of the Union address was his call to fire feds faster.

The one time he mentioned “federal employees” was to push his plan to empower agencies “to remove federal employees who undermine the public trust or fail the American people.”

To do that, he wants officials to engage in the same attack on civil service due process rights as the law now allows at the Department of Veterans Affairs.

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act,” Trump said. “Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve — and we are hiring talented people who love our vets as much as we do.”

Exactly how many VA staffers have been fired is hard to know,  because the White House and the department have different numbers. An email from a department spokesman said “VA has fired 1,737 people” since Trump signed the VA Accountability and Whistleblower Protection Act law in June. Yet, a White House fact sheet puts the number at 1,470.

Whatever the number, despite Trump’s boasting, the firing stats are not so different from the firing rate during the Obama administration. During the last full fiscal year under President Barack Obama, 2,662 VA workers were fired for discipline or performance reasons, according to the Office of Personnel Management’s Fedscope database. That’s about 2.5 percent less than in Trump’s first calendar year, according to VA’s information.

Despite that, Rep. Barry Loudermilk (R-Ga.) argues that “firing bad civil service employees is close to impossible nowadays.” His legislation would give “federal managers the option to expedite the dismissal process of bad employees.”

There’s reasonable argument for expediting the process, but at what cost? The VA law not only cuts the process for employees generally — permitting just seven business days to respond to allegations that management had an unlimited amount of time to accumulate — but also significantly weakens the level of evidence needed to dump workers.

“The VA’s new lower burden of proof — substantial evidence — means . . . per the U.S. Court of Appeals for the Federal Circuit, that VA needs just ‘more than a mere scintilla’ of evidence to prove its charges,” said Debra A. D’Agostino, founding partner of the Federal Practice Group law firm. “In other words, VA is given considerable deference and doesn’t need any evidence to corroborate its allegations to have its decisions upheld.”

At VA, the cost of an expedited process is a drastic hit on due process safeguards, especially for the department’s senior executives. By striking at workplace rights, the new law also undermines civil service protections that are designed to shield the public, not just staffers, from a politicized workforce.

The law sets a dangerous precedent for the civil service by denying VA senior executives the right to appeal adverse personnel actions to the quasi-judicial Merit Systems Protection Board, as is common for federal employees. Instead, the department’s senior execs are relegated to an in-house process that essentially allows the politically appointed secretary, through designees, to act as prosecutor, judge and appellate court.

While political appointees give direction to civil servants, the civil service is designed as a nonpolitical workforce that attends to the public without political favor. Implementation of an in-house disciplinary process that denies appeals to MSPB, as Trump and Congress have done at VA, is a particularly onerous attack on the civil service.

“What the President is actually asking Congress to do is give all of his Cabinet Secretaries the power to fire federal employees they consider not loyal to the administration and its political agenda,” said a statement from J. David Cox Sr., president of the American Federation of Government Employees, which represents most VA employees. “Make no mistake: this is a plan to politicize federal employment and allow the administration to hire and fire on the basis of politics rather than merit.”

Cox added that the overwhelming “majority of those this administration has kicked to the curb have been the lowest paid employees of the agencies, those who earned less than $30,000 annually, and many of these fired employees are veterans with service-connected disabilities.”

“Firing American workers is nothing to celebrate or be proud of,” he said.

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