3:58 PM EDT

Mark A. Takano, D-CA 41st

Mr. TAKANO. Mr. Chairman, in Congress, we can all agree that greater accountability is sorely needed within the Department of Veterans Affairs. We are all outraged that VA employees whose misconduct has harmed veterans have remained in their jobs. Last summer, we were all horrified that the VA medical centers in Phoenix and elsewhere manipulated patient wait times. This spring, in Denver, we were frustrated by the huge cost overruns with no real accountability.

I agree with my Republican colleagues that the VA must do a better job of using its existing authorities to hold bad employees, such as these, accountable. Unfortunately, this lack of accountability has overshadowed the excellent work of the vast majority of VA employees--over a third of them veterans themselves, whose genuine caring and tireless efforts honor veterans' service to our Nation. I believe it is wrong to assume VA employees are guilty until proven innocent, and I believe that H.R.

1994 is the wrong way to achieve greater accountability at the VA.

This afternoon, I am offering an amendment in the nature of a substitute to H.R. 1994. The text of my amendment is based on my bill, H.R. 2999, the Fair VA Accountability Act. I urge all of my colleagues to support it today.

[Time: 16:00]

My substitute would provide real accountability at the VA in a manner that preserves the important due process rights of VA employees and protects our veterans, and my substitute would improve the status quo by giving VA an additional accountability mechanism.

It would allow VA to immediately fire, without pay, any VA employee whose misconduct presents a clear and present danger to public health and safety while providing adequate due process on the back end for such employees.

This standard comes from Supreme Court precedent regarding constitutional due process for Federal employees and mirrors a similar Department of Defense provision.

My substitute would mean that, if a VA employee's behavior threatened veterans' health or safety, VA could immediately fire that employee. Current law only allows VA to ask such an employee to leave work while still receiving pay.

My substitute would also cap paid administrative leave at 14 days so VA employees would not sit at home and collect a paycheck while fighting a disciplinary action.

My substitute would shield our bold VA whistleblowers by protecting existing laws and requiring the VA to backpay any whistleblower unjustly fired for reporting wrongdoing.

In sum, my substitute would provide the VA with the tools it needs to remove dangerous employees immediately and protect the health and safety of veterans and others, and my bill does so in a way which preserves important concepts of due process for VA employees.

These employees live in our communities and States. They are our friends and neighbors and sometimes our family members. Ensuring basic American notions of fairness is what my amendment in the nature of a substitute provides and, frankly, what H.R. 1994 does not.

I reserve the balance of my time.

4:02 PM EDT

Jeff Miller, R-FL 1st

Mr. MILLER of Florida. Mr. Chair, I thank the gentleman for his amendment in the nature of a substitute, but at this time I have to oppose it.

I appreciate that Mr. Takano does believe that we need to provide real accountability at the Department of Veterans Affairs. But as I said at our committee markup when he offered an almost identical amendment, this substitute fails to achieve true accountability.

I am supportive of section 3 of his amendment, which would limit administrative leave for all employees to 14 days, and I agree with this commonsense policy. But I would note that this limitation language is already included in my bill, H.R. 1994.

My main concern with the substitute lies within section 2, which would dramatically change the standard and the process set up in my bill of removing VA employees.

The substitute would only give the Secretary the authority to remove an employee if they represent a ``clear and direct threat to public health or safety,'' which is almost an unobtainable, if not immeasurable, bar to reach.

This undefined standard would make it almost impossible for the Secretary to remove any employee under this new authority, thereby ensuring that the current stalemate that exists with the civil service rules would continue.

Unfortunately, as I said moments ago, maintaining the status quo is not acceptable. I would submit that the standard of a clear and direct threat to public health and safety would not apply to those employees involved with many of today's ongoing scandals at the VA, including the cost overruns of the Denver hospital; the budget shortfall that we are going to vote to fix later today, a $3 billion budget fix; the manipulation of data at the Philadelphia regional office; the allegations of inappropriate

use of government purchase cards to the tune of $6 billion; the allegations of employees at the Los Angeles regional office once again inappropriately shredding veterans' claim information; and the many other egregious actions that continue to come to light at VA almost every single day.

Members, these are the very type of employees that our constituents and [Page: H5639]

our veterans expect to be held accountable, but the standard proposed in this substitute would not give the Secretary the authority to provide the accountability we all know that VA desperately needs.

I also have some concerns with the procedures that are laid out in the substitute to actually remove these employees.

I believe that, unlike the procedures that I have laid out in my bill, which set definitive timelines to remove someone while maintaining the due process and maintaining appeal rights, the procedures laid out in this substitute could allow an employee to be on indefinite suspension for months, if not years, awaiting a hearing for the Secretary's final decision.

It has been mentioned several times by my colleagues on the other side that passage of H.R. 1994 would return to a spoils or an at-will employment system. Nothing could be further from the truth.

Let me compare a spoils or an at-will system to the protections offered in 1994.

First, a spoils system would allow the party in power to hire anyone, usually partisan supporters, that they want to reward for their political support with a Federal job. In contrast, H.R. 1994 has no effect on the current hiring process.

Second, a spoils or a patronage system makes all employees at will and subject to firing for any or even no reason. Again, that is hardly the case in my bill. H.R. 1994 requires proof in the form of poor performance or misconduct.

Additionally, my bill requires the Secretary to report the reasons for any such removals to Congress within 30 days.

Third, in a spoils system, a fired employee has no right of appeal. In contrast, under H.R. 1994, fired employees still have due process rights, including 45 days to appeal their firing to the Merit Systems Protection Board.

Fourth, in a spoils system, there is no such thing as paid administrative leave. You are fired, gone with no pay.

Under civil service rules, a poor-performing employee can be placed on administrative leave for essentially an unlimited time, as we have seen with several miscreants identified during our investigations.

H.R. 1994, on the other hand, would limit the Secretary's authority to put someone on paid administrative leave to 14 days, at which time the Secretary must bring that person back to Active Duty.

Fifth, in a spoils system, there are no protections for whistleblowers. In an at-will system, employees may or may not be covered by whistleblower protection, employee discrimination, et cetera, type laws, depending on the type of employer.

However, under H.R. 1994, employees are protected by both of these types of laws, plus the procedures and additional protections created under section 4 of my bill.

Employees cannot be removed without OSC approval if an open case exists, and employees cannot be removed or demoted if they have an open case under the new process that is laid out in section 4 until the Office of Accountability review makes a final determination.

So, ultimately, not only does this amendment set a standard for removal that is not relevant to a majority of the issues that we see at the Department, it keeps intact the long and arduous timeline before a final approval is complete. This is not fair to veterans, to the Department, or to the employee in question.

To reemphasize, I also have issues with the whistleblower protections that are laid out in this substitute or the lack of protections in this substitute.

The only mention of whistleblower protections made in this amendment says that a whistleblower may receive backpay if the Merit Systems Protection Board ultimately decides they were removed for blowing the whistle.

Not only does this not provide any protections on the front end, but it would also strip out all of the whistleblower protections I have included in section 4 of my bill.

We all know that the Secretary has a tall task to restore trust and to rebuild the VA. We have to give him every tool possible to complete that mission. This amendment does not come close to giving him the tool that he needs today.

So, once again, I urge Members to support change and stand with veterans, not the bureaucrats and the special interest groups and the status quo. I urge Members to oppose the Takano substitute.

I reserve the balance of my time.

4:02 PM EDT

Jeff Miller, R-FL 1st

Mr. MILLER of Florida. Mr. Chair, I thank the gentleman for his amendment in the nature of a substitute, but at this time I have to oppose it.

I appreciate that Mr. Takano does believe that we need to provide real accountability at the Department of Veterans Affairs. But as I said at our committee markup when he offered an almost identical amendment, this substitute fails to achieve true accountability.

I am supportive of section 3 of his amendment, which would limit administrative leave for all employees to 14 days, and I agree with this commonsense policy. But I would note that this limitation language is already included in my bill, H.R. 1994.

My main concern with the substitute lies within section 2, which would dramatically change the standard and the process set up in my bill of removing VA employees.

The substitute would only give the Secretary the authority to remove an employee if they represent a ``clear and direct threat to public health or safety,'' which is almost an unobtainable, if not immeasurable, bar to reach.

This undefined standard would make it almost impossible for the Secretary to remove any employee under this new authority, thereby ensuring that the current stalemate that exists with the civil service rules would continue.

Unfortunately, as I said moments ago, maintaining the status quo is not acceptable. I would submit that the standard of a clear and direct threat to public health and safety would not apply to those employees involved with many of today's ongoing scandals at the VA, including the cost overruns of the Denver hospital; the budget shortfall that we are going to vote to fix later today, a $3 billion budget fix; the manipulation of data at the Philadelphia regional office; the allegations of inappropriate

use of government purchase cards to the tune of $6 billion; the allegations of employees at the Los Angeles regional office once again inappropriately shredding veterans' claim information; and the many other egregious actions that continue to come to light at VA almost every single day.

Members, these are the very type of employees that our constituents and [Page: H5639]

our veterans expect to be held accountable, but the standard proposed in this substitute would not give the Secretary the authority to provide the accountability we all know that VA desperately needs.

I also have some concerns with the procedures that are laid out in the substitute to actually remove these employees.

I believe that, unlike the procedures that I have laid out in my bill, which set definitive timelines to remove someone while maintaining the due process and maintaining appeal rights, the procedures laid out in this substitute could allow an employee to be on indefinite suspension for months, if not years, awaiting a hearing for the Secretary's final decision.

It has been mentioned several times by my colleagues on the other side that passage of H.R. 1994 would return to a spoils or an at-will employment system. Nothing could be further from the truth.

Let me compare a spoils or an at-will system to the protections offered in 1994.

First, a spoils system would allow the party in power to hire anyone, usually partisan supporters, that they want to reward for their political support with a Federal job. In contrast, H.R. 1994 has no effect on the current hiring process.

Second, a spoils or a patronage system makes all employees at will and subject to firing for any or even no reason. Again, that is hardly the case in my bill. H.R. 1994 requires proof in the form of poor performance or misconduct.

Additionally, my bill requires the Secretary to report the reasons for any such removals to Congress within 30 days.

Third, in a spoils system, a fired employee has no right of appeal. In contrast, under H.R. 1994, fired employees still have due process rights, including 45 days to appeal their firing to the Merit Systems Protection Board.

Fourth, in a spoils system, there is no such thing as paid administrative leave. You are fired, gone with no pay.

Under civil service rules, a poor-performing employee can be placed on administrative leave for essentially an unlimited time, as we have seen with several miscreants identified during our investigations.

H.R. 1994, on the other hand, would limit the Secretary's authority to put someone on paid administrative leave to 14 days, at which time the Secretary must bring that person back to Active Duty.

Fifth, in a spoils system, there are no protections for whistleblowers. In an at-will system, employees may or may not be covered by whistleblower protection, employee discrimination, et cetera, type laws, depending on the type of employer.

However, under H.R. 1994, employees are protected by both of these types of laws, plus the procedures and additional protections created under section 4 of my bill.

Employees cannot be removed without OSC approval if an open case exists, and employees cannot be removed or demoted if they have an open case under the new process that is laid out in section 4 until the Office of Accountability review makes a final determination.

So, ultimately, not only does this amendment set a standard for removal that is not relevant to a majority of the issues that we see at the Department, it keeps intact the long and arduous timeline before a final approval is complete. This is not fair to veterans, to the Department, or to the employee in question.

To reemphasize, I also have issues with the whistleblower protections that are laid out in this substitute or the lack of protections in this substitute.

The only mention of whistleblower protections made in this amendment says that a whistleblower may receive backpay if the Merit Systems Protection Board ultimately decides they were removed for blowing the whistle.

Not only does this not provide any protections on the front end, but it would also strip out all of the whistleblower protections I have included in section 4 of my bill.

We all know that the Secretary has a tall task to restore trust and to rebuild the VA. We have to give him every tool possible to complete that mission. This amendment does not come close to giving him the tool that he needs today.

So, once again, I urge Members to support change and stand with veterans, not the bureaucrats and the special interest groups and the status quo. I urge Members to oppose the Takano substitute.

I reserve the balance of my time.

4:09 PM EDT

Mark A. Takano, D-CA 41st

Mr. TAKANO. Mr. Chairman, my good friend and colleague, Chairman Miller of the Veterans' Affairs Committee, has implied that my clear and present danger standard in the substitute that I have offered is too narrow and does not give the Secretary enough tools to dismiss bad employees. I respectfully disagree.

Particularly in the case of the Phoenix VA, the hospital's director, Sharon Helman, clearly posed a threat to the health and safety of veterans. Under my substitute, she would have been immediately removed.

Similarly, many of the speakers on the other side of the aisle cited a crackhouse case where a VA employee took a veteran to a crackhouse.

Now, my substitute and the clear and present standard, the health and safety standard that we have put forward, would clearly have addressed that employee and would have made that employee immediately dismissible.

Let me remind you again that VA does have current title 5 procedures that they have been using to remove poor-performing employees.

We should encourage the VA to use them better, to use the tools that they have. I remind my colleagues that last year 872 permanent employees were removed, 487 more resigned in lieu of being fired, and 958 probationary employees were terminated.

Now, the fact that the VA wait list scandal emerged out of Phoenix was because we do have protections for whistleblowers. They could be strengthened.

Nevertheless, the current civil service protections, the due process protections, afforded those employees the security to move forward and to come forward as whistleblowers.

Again, my amendment in the form of a substitute fixes the deficiencies of my good friend Chairman Miller's bill.

I have said before that I believe his bill puts extra barriers in front of whistleblowers in coming forward. It complicates and makes more cumbersome their ability to come forward.

If you are an employee who is under threat of dismissal and immediately losing your livelihood, that is a huge, huge barrier to your coming forward as a whistleblower.

That is exactly what his bill would do. It would make everyone in the VA an at-will employee.

I reserve the balance of my time.

4:13 PM EDT

Charlie Dent, R-PA 15th

Mr. DENT. Mr. Chair, I want to thank Chairman Miller for his leadership on this.

I rise to oppose the substitute amendment. But I want to express my gratitude to the chairman for the work that he and the Veterans' Affairs Committee have done, all the work they have put into this legislation to prevent another VA catastrophe by making sure that the Choice Act funds we appropriated last year can be used for related veterans' community care expenditures.

This bill will ensure that no veterans hospital or care for any veteran will be jeopardized due to the VA's continuing mismanagement of the influx of patients that followed last year's passage of the Choice Act.

Once again, Congress is providing the VA with all the resources they require to provide timely, quality care to our veterans and their loved ones.

It was only about a month ago that we were informed by the Department that there was a shortfall of the magnitude of almost $3.4 billion, and here we are today remedying this problem.

The bill also proposes something that is sorely needed: the consolidation of the myriad programs VA uses to provide care outside their facilities.

Veterans are confused. VA employees are confused. Doctors are confused. Reimbursement rates are not standardized.

We need to make sure that the non-VA care program is thriving so that patients can get the high-quality care they deserve in their homes, in their [Page: H5640]

home communities, right where they live.

As chairman of the Subcommittee on Military Construction, Veterans Affairs and Related Agencies, I will continue to devote time and attention to pinpointing the VA's future funding needs and maintaining vigilant oversight of their appropriated taxpayer dollars.

The VA must develop systems that give us accurate and on-time information and engage with Congress in a transparent and timely manner. We cannot and should not continue to lurch from one VA funding crisis to another.

[Time: 16:15]

What we have seen is terrible management and a terrible disservice to our veterans by the VA in many of these cases; we need to fix it. I believe the Secretary is a good and honorable man trying to do his best, but the taxpayers deserve better, and our veterans most assuredly do.

I urge passage of this bill. I thank the chairman and the leadership of the committee.

4:15 PM EDT

Corrine Brown, D-FL 5th

Ms. BROWN of Florida. Let me just be clear. I am just amazed that, on the last day of the session, we are spending the entire afternoon discussing H.R. 1994--a bill that the Senate will not pick up; and if, by some miracle, it passed, the President would veto it--when there are so many other things that we could be discussing.

How about addressing H.R. 3266, which will give the Secretary the authority to run the VA like a business, which is what we keep saying?

I support the substitute amendment. The accountability substitute is offered today because it brings real accountability to the VA while maintaining constitutionality due process protection for civil service employees.

At the Committee on Veterans' Affairs over the past 2 years, we have learned of widespread mismanagement and--let me emphasize--lack of training at the VA. The problems that the VA has have gone back for many years, over 30. Maybe if we had adequately funded VA, they would have fewer problems.

The majority has introduced H.R. 1994, which attempts to increase accountability by allowing VA to immediately fire any employee for misconduct with only limited due process. The substitute increases accountability by allowing VA to immediately suspend, without pay, any employee whose misconduct posed a direct threat to veterans' health and safety.

Unlike H.R. 1994, the substitute provides sufficient due process rights to meet constitutional requirements by providing an accused employee with a fair chance to tell their side of the story.

I urge my colleagues to vote for this substitute and vote against H.R. 1994.

4:18 PM EDT

Jeff Miller, R-FL 1st

Mr. MILLER of Florida. Mr. Chairman, what this amendment does is basically gut H.R. 1994, which is an accountability bill that provides the Secretary with a desperately needed tool in order to hold people accountable within the Department.

I would like to read for the Record the 11 veterans service organizations that support the removal authority: American Legion, Veterans of Foreign Wars, Iraq and Afghanistan Veterans of America, Paralyzed Veterans of America, Vietnam Veterans of America, Student Veterans of America, Military Order of the Purple Heart, Military Officers Association of America, Reserve Officers Association, Concerned Veterans for America, and AMVETS.

I remind Members that VA has only successfully removed three VA employees for reasons related to the wait time manipulation in the VA scandal that was brought to everybody's attention back in April.

Here are those that oppose the accountability bill: the American Federation of Government Employees and the National Treasury Employees Union.

So, again, on opposition are the unions; on support are the veterans service organizations.

I yield back the balance of my time.

The Acting CHAIR (Mr. Rodney Davis of Illinois). The question is on the amendment offered by the gentleman from California (Mr. Takano).

The question was taken; and the Acting Chair announced that the noes appeared to have it.

4:19 PM EDT

Dan Benishek M.D., R-MI 1st

Mr. BENISHEK. Mr. Chairman, I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Michigan (Mr. Benishek).

The amendment was agreed to.

AMENDMENT NO. 2 OFFERED BY MR.

TAKANO

The Acting CHAIR. It is now in order to consider amendment No. 2 printed in House Report 114-234.