Lawmakers Seek Tighter Restrictions on VA Executives' Bonus Pay

The number of senior executives at the Veteran Affairs Department eligible for bonuses would be capped, and all the VA’s top career leaders would have to switch jobs within the department at least once every five years under new legislation introduced in the House.

In his latest bill aimed at cracking down on misconduct and poor performance at VA, House Veterans’ Affairs Committee Chairman Jeff Miller, R-Fla., would allow no more than 30 percent of VA’s senior executives to receive top performance ratings and qualify for bonuses. In addition, the bill calls on the VA secretary to reassign once every five years, “each individual employed in a senior executive position to a position at a different location that does not include the supervision of the same personnel or programs.” The secretary could waive that requirement on an individual basis but would have to justify it to Congress.

The legislation also directs the department to procure an outside auditor to review the management training of senior executives compared to top leaders in other federal agencies and the private sector.

(Related: Lawmakers Reintroduce Sick Leave Bill for Disabled Vets)

The VA secretary would have to submit an annual report to Congress on the department’s performance review system for senior executives, including documentation on each senior executive’s evaluation and bonus recommendations.

The bill also would give the secretary the power to strip pension benefits from VA senior executives who are convicted of a crime that influenced their job performance and fired. It would prevent senior executives about to be fired because they were convicted of a felony, but who instead retire, from receiving their full retirement benefits. The secretary would be allowed to take away the government contribution portion of the pension for the time period in which the employee was engaged in behavior warranting removal. The rest would be returned to the employee in a lump sum.

In addition, the legislation would reduce to 14 days the amount of paid administrative leave for top department officials under investigation, unless the secretary can show good reason for extending that leave.

While the pension and administrative leave measures would be significant changes from current law, they would not likely affect as many senior executives as the provisions related to bonuses and job reassignments. There were 346 career SES members at VA in fiscal 2013, and 63.3 percent of them received a performance award for that period, according to the latest data from the Office of Personnel Management.

Jenny Mattingley, legislative director for the Senior Executives Association, said the group welcomed a conversation about reforming the SES performance evaluation system, though she questioned whether SEA and lawmakers would agree on what that reform looks like. “If this is a start to a conversation rather than an end, then maybe we can find some reforms that really make sense,” she said.

But she also expressed concern over “arbitrary” quotas capping the number of senior executives who can receive bonuses and reassigning employees once every five years. “If the secretary is reassigning people, does that become really political?” she asked. Mattingley said many top jobs in VA are specialized, particularly those within the Veterans Health Administration, and so it wouldn’t be practical to reassign a senior executive in the general counsel’s office to a job running a VA hospital, for example.    Mattingley said the SEA has always supported accountability, but worries that the public discussion about mismanagement at VA revolves around “this idea that all these senior executives are doing something terrible,” which isn’t accurate. “If someone is doing something wrong they should absolutely be held accountable,” she said. “We are not saying ‘no.’ We are saying, ‘Make it fair, and make sure you are getting the right people.’ ”

Miller in a Jan. 22 statement on the legislation said that his committee’s focus “remains on giving the VA secretary more tools to ensure corrupt and incompetent executives face serious consequences for mismanagement and malfeasance that harms veterans. Right now, the task at hand for VA leaders is replacing the department’s culture of complacency with a climate of accountability, and we are going to give them everything they need to get the job done.” 

Both VA Secretary Bob McDonald and Deputy Secretary Sloan Gibson have argued that the department does not have the authorityto deprive a senior executive of her property, including earned retirement benefits, unless that employee is convicted of treason or terrorism.

Miller is shepherding another bill, discussed during a Tuesday congressional hearing, that would give the VA secretary clear authority to order employees to repay bonuses. H.R. 280 would require notifying affected employees before they had to repay the money, and would give them an opportunity for a hearing conducted by the secretary. But the secretary’s decision would be final and not subject to review by “any other agency or any court,” according to the text of the bill.

The idea is to give the VA chief another tool to punish those engaged in misconduct – in this instance by allowing the department to rescind bonuses those employees have received. But the legislation does not specify criteria that would be grounds for ordering a repayment, giving the secretary broad discretion. The bill also is aimed at clearing up any confusion over whether VA has the authority to claw back bonuses.

Last year, a USA Today report found the VA awarded $380,000 in bonuses to “directors and top executives” at 38 hospitals currently under investigation for falsifying records.  

Then-VA secretary Eric Shinseki in May rescinded an $8,500 performance award given in 2013 to Sharon Helman, a bonus that the department said was awarded because of an administrative error. Federal employee advocates as well as department officials, however, have questioned whether the agency actually has the authority to rescind an employee bonus for malfeasance.

Helman, the former career senior executive who ran VA’s Phoenix health care system when the scandal over falsifying wait lists erupted last spring, was fired in November, and then appealed her case to the Merit Systems Protection Board. Chief Administrative Judge Stephen C. Mish in December upheld Helman’s firing because she improperly accepted more than $13,000 in gifts from a lobbyist and failed to report them, not because she engaged in misconduct related to manipulating data to conceal excessive wait times for vets seeking health care.

H.R. 280 would apply to all VA employees, not just senior executives. The American Federation of Government Employees, which represents rank-and-file VA workers and has been mostly silent on legislation targeting VA senior executives, issued a statement on Tuesday opposing H.R. 280.

“It’s time to turn the page on morale-busting measures like Rep. Miller’s proposal and focus on the mission of delivering top-quality care to America’s veterans,” AFGE President J. David Cox Sr. said. “We can’t forget that it was strong-arm tactics like this that were used to retaliate against employees looking to speak out against secret waitlists and mismanaged care.”