A VA Law is “Getting the Guppies Instead of the Trout”

In October 2015, then-candidate Donald Trump held a campaign rally in front of a Navy battleship in Norfolk, Virginia, and outlined his plan to restore trust at the Department of Veterans Affairs.

“We are going to make the VA great again,” Trump said to thunderous applause. “And we are going to do it by firing the corrupt and incompetent VA executives who let our veterans down.”

Last June, Trump declared that he had made good on his promise when he signed the VA Accountability and Whistleblower Protection Act. The law followed a string of well-publicized scandals, most notably an incident from 2014 in which VA hospital administrators in Phoenix tampered with patient wait-time data. Agency officials struggled to oust managers complicit in the scandal, and the facility’s director was able to successfully appeal her termination. The law was meant to give the agency the tools to more easily fire unethical managers.

Instead, the law appears to have been used primarily to discipline low-level employees, according to VA data—and it has resulted in a weakening of due process for those recommended for removal, as well as the curtailing of their right to appeal, effectively superseding worker protections secured by unions in collective-bargaining agreements. As of February 2018 (the most recent month for which data is available), only five senior leaders had been removed since June 2017, the month the law was passed. The other 1,264 removals since then have been low-level employees, including people whom The Nation identified as working in claims processing, food service, and housekeeping. The VA doesn’t keep numbers on how many of these were veterans, but federal hiring laws restrict a number of low-level VA jobs to veterans, who currently hold about a third of all positions within the department.

“The jobs that are being targeted more, it seems, by this accountability act are jobs largely occupied by veterans—disabled veterans even more,” said David Bump, a local vice president for the American Federation of Government Employees (AFGE) in Portland, Oregon.

The Nation spoke to more than two dozen current and former VA employees and union officials, who portrayed the VA as an agency needlessly cracking down on loyal workers. Union officials allege that the law is being abused to retaliate against whistle-blowers and union members, and that the VA leadership has created conditions for employees to fail by promulgating stringent new work standards that have recategorized hardworking employees as failing. The law also established the shadowy Office of Accountability and Whistleblower Protection, headquartered in Washington but with satellite offices across the country, staffed by 68 employees, as of last month, who provide “investigative internal affairs services.”

Meanwhile, Trump has appointed a questionable crew of VA leaders whose misdeeds have greatly damaged the agency’s already ailing reputation. The president announced the firing of his first veterans’-affairs secretary, David Shulkin, by tweet in March after Shulkin faced criticism for taking significant leisure time during a taxpayer-funded business trip. Trump’s pick to replace Shulkin, White House physician Ronny Jackson, was accused of drinking on the job and improperly passing out controlled substances to White House staffers, and subsequently withdrew his name. Trump’s acting chief information officer at the VA was recently accused in a lawsuit of sexual harassment. Other Trump appointees to leadership positions within the agency have little management experience or fluency in veterans policy.

Dozens of respected senior staffers have left the agency, many frustrated with its direction under Trump. Just last week, Amy Fahrenkopf, a well-respected physician serving as the agency’s acting deputy undersecretary for health, reportedly cited Shulkin’s firing as a reason for her retirement. Overall the department is burdened by more than 33,000 full-time vacancies, says VA press secretary Curt Cashour; meanwhile, overworked employees have had nervous breakdowns, suffered PTSD setbacks, or been placed on suicide watch.

A number of lawmakers who supported the 2017 accountability bill have since publicly expressed concern over its implementation and criticized the new whistle-blower office for not fully disclosing its activities. Some critics allege that the accountability law is nothing more than a brazen effort to gut the VA of employees, thereby weakening the quality of care and making privatization more palatable.

In an interview with The Nation following his firing, Shulkin said he didn’t regret his support of the bill, though he said he was open to legislative changes after being presented with examples of low-level VA employees being unfairly targeted. “If [the law is] being used inappropriately to create fear and a bad working environment, that’s not good for our veterans or employees,” he said.

When the act passed last year, it marked a major victory for leaders at Concerned Veterans for America (CVA), a nonprofit backed by Charles and David Koch. Ever since the 2014 Phoenix scandal, the group had been pushing for policy changes to make it easier to discipline VA employees. It almost saw its dreams realized that year in a proposal put forth by Florida Senator Marco Rubio, but Senator Bernie Sanders scuttled the effort following a heated floor exchange in which he warned that the legislation could be exploited.

Three years later, when President Trump made accountability legislation a priority, he had support from Shulkin. While the former VA secretary cast himself as a moderate pushing back against attempts to privatize the agency, some of his close advisers came from the ideological fringe. Those advisers included Darin Selnick, formerly of CVA, and Peter O’Rourke, who had once headed up Strong America Now, a now-defunct Republican PAC that pushed presidential candidates to embrace a business-efficiency model known as “Lean Six Sigma.” O’Rourke served as the first director of the VA’s new Office of Accountability and Whistleblower Protection before becoming Shulkin’s chief of staff.

In the first three months of 2017, lobbyists from CVA’s parent organization, Americans for Prosperity, held at least 23 meetings with aides throughout Congress to “discuss reform at the Department of Veterans Affairs,” according to federal lobbying disclosures. These included meetings with staffers for powerful Senate and House members, including Johnny Isakson (R-GA), the chairman of the Senate Committee on Veterans’ Affairs.

CVA’s key ally on accountability was Rubio, who, according to Federal Election Commission records, received more than $90,000 in CVA spending during his 2016 reelection campaign. The Koch brothers’ top political adviser, Marc Short, was also a top adviser to Rubio’s 2016 presidential campaign.

Rubio introduced the accountability act on May 5, 2017. One CVA staffer told The Nation that the organization had “worked with Rubio’s office to craft the language” of the measure. Another said it was “our featured piece of legislation; from start to finish we were a strong supporter of it.” CVA officials made a six-figure investment drive, including media buys, urging 17 moderate senators to support it. The organization also made thousands of phone calls to constituents of senators they wanted to support the bill, and built a digital tool that connected constituents to members of Congress. “We put in a lot of effort to get it passed,” said Dan Caldwell, CVA’s executive director. “It was a four-year effort.”

The bill received bipartisan support in the House and passed on a voice vote in the Senate. The signing ceremony at the White House was attended by a handful of CVA officials. Five days after the law was ratified, Caldwell met with Shulkin to discuss its implementation and plan the next steps. Specifically, conservatives began plotting a strategy to loosen requirements and make permanent the VA Choice program, which allows veterans to seek care in the private sector.

While Shulkin consulted with CVA staffers frequently on VA issues, officials from the AFGE, which represents more than 220,000 VA employees, complained that the agency refused to bargain over the law’s implementation, which the union said was a violation of the US Code. Moreover, union leaders said that in the only meeting Shulkin held with them to discuss the law, last September, he voiced skepticism that low-level employees were being targeted for minor infractions. Shulkin said there were some in the administration who took a “hard-line position against the unions,” but added that he didn’t count himself among that group.

Away from Washington, union lawyers have been challenging the use of the accountability act against low-level employees. The issue is particularly contentious in Pittsburgh, where there have been 46 “adverse actions” taken under the act since the law was implemented last summer, according to a spokeswoman for the VA. These included firings, demotions, and suspensions. The spokeswoman did not answer the question of how many of those fired have been replaced.

Pennsylvania has one of the largest veteran populations in the country, and the VA system there also serves patients from Ohio and West Virginia. The VA’s Pittsburgh system, which has 3,000 employees, is operating with more than 300 vacancies as of April, including for nurses, pharmacists, and physical therapists.

“It’s the most terminations we’ve seen, by far,” said Colleen Evans, president of the AFGE’s local chapter. “Every time we turn around there’s a new one.”

Evans’s vice president, Kevin Patterson, is a feisty Marine veteran with multiple injuries from his service, including hearing loss. A housekeeper by trade, Patterson says the law is “getting the guppies instead of the trout.”

“We got employees here doing double the amount of work, in some cases triple the amount of work that they were doing if we would have been fully staffed,” Patterson said. “And what do we get back as feedback? They’re going to cut our jobs, they’re going to cut our pay, they’re getting rid of us and not replacing us.”

Roughly a third of the agency’s workforce is composed of veterans like Patterson, many of whom were brought in as groundskeepers, janitors, or housekeepers as part of the VA’s Compensated Work Therapy program, which takes in veterans with mental illnesses or physical impairments who would otherwise have found it difficult to get a job.

Employees used to have as many as 30 days to respond to a proposed firing. Now employees have only seven business days to gather evidence and build a case. And while due-process protections were weakened under the new law, the VA also promulgated stringent new work standards last year for administrative employees and largely ended the practice of offering Performance Improvement Plans to failing employees, effectively curtailing any opportunity for a second chance.

Across the country, union officials say, VA employees are being accused of trumped-up charges, often based on scant evidence. Of the more than two dozen current and former VA employees and union officials The Nation spoke to, most requested anonymity out of fear of retribution from management.

A loan officer from Virginia was recommended for removal after performance reviews for two consecutive months scored a hair below expectations. In July 2017, the officer’s quality-review score was 94 percent successful—one point below acceptable.

An Army combat veteran who now serves as a veterans-service representative at an office in the VA’s Pacific Coast district said the punishing new standards jeopardized her job and facilitated a toxic work environment that triggered her post-traumatic-stress disorder.

“I had to start going back to counseling, and I know others have gone to counseling too,” the employee said. “I came to this job because I wanted to serve veterans. It’s where I felt safe after getting out of the military. But now no one is supporting us to do well at our jobs—no one has our backs anymore. It’s hard to function under these conditions.”

The Nation reviewed 10 cases where veterans were recommended for removal based chiefly on verbal outbursts, arguably spurred in part by stressful work conditions.

Patrick Henry, a Gulf War veteran who has been processing veterans’ claims at a VA facility in Florida since 2009, was recently fired under the accountability act for failing to meet new work standards. Henry said that management is now asking claims representatives for double the amount of work in the same period of time. He often missed his lunch break to keep up, and had difficulty managing the increased workload.

“Veterans have a different skill set than someone [who has] gone to college for four or five years,” Henry said. “It takes me a bit longer than the average guy, but I take pride in my work. Each veteran to me is not a number; these are real people, and we are here to serve them.”

Faced with a lengthy and stressful appeals process, Henry and many others have opted to leave the agency altogether. But the union is fighting the proposed terminations of many other veterans, saying their mental-health histories should be taken into account, and that firing them could destroy years of meaningful progress these veterans made working at the agency.

“They funnel in these veterans with the front to the American public that ‘We are taking care of our vets. Even when they got issues, we’ll take them in,’ ” Patterson said. “But two seconds after they do something wrong, they are fired.”

Evans said management sometimes “plays games” that hamstring union efforts to gather evidence. Requests for potentially exculpatory information, union officials allege, are often held up until after the seven-day rebuttal window has closed. Furthermore, officials say that when video surveillance tape favors management, it is presented, but that when union officials have requested it for defense purposes, management has said the requested footage has been taped over or is otherwise unavailable.

In an e-mail, a Pittsburgh VA spokesperson denied this claim, saying, “VA Pittsburgh Healthcare System officials have complied with union requests for evidence in a timely manner.” Follow-up requests for clarity did not get a response.

In Pittsburgh, some veterans are being charged not only administratively, but criminally by the VA Police, a unit whose exclusive jurisdiction is agency facilities. The VA police force there has filed charges based on scant evidence. Patterson, for one, was handcuffed by VA police and later charged for obstructing governmental operations after demanding to know why one of his fellow union members was being interrogated by police. “If that’s not intimidation, I don’t know what is,” Patterson said. The charges against him were later dropped.

Additionally, VA police have charged veterans working in the Pittsburgh system with disorderly conduct, receiving stolen property, tampering with evidence, and invasion of privacy—charges that were later withdrawn or dismissed in Allegheny County District Court.

One dining-service employee in Pittsburgh, a vet who entered the VA through the Compensated Work Therapy program, was recently recommended for dismissal and charged with disorderly conduct after he took away a television remote from a patient who had entered the dining hall after hours and demanded to watch television. The veteran got sober through his work at the VA and said his life would be ruined if he lost his job at the agency.

“It was good to get in—it gave me a sense of purpose and a chance at life,” the veteran said. “But it seems that now management spends more time getting rid of people than helping them.”

VA managers from Memphis to Buffalo who have faced serious allegations—the kinds of employees the accountability act was intended to target—appear to still be on the job, some of them reassigned to different facilities.

As an example, union officials in Pittsburgh point to the facility’s former deputy director, David Cord, who has been transferred repeatedly amid questions of misconduct. In 2012, Cord advised VA staff to keep quiet about an outbreak of Legionnaires’ disease that killed at least six veterans and sickened more than a dozen others. In 2014, after the allegations against Cord surfaced, he was promoted, despite years of complaints from union officials. In October 2015 he was reassigned to the neighboring Butler facilities, located 30 miles north of the Steel City—and then, in January, after more than two years as the director of the health-care system at Butler, Cord “voluntarily” stepped down to return to Pittsburgh for a procurement and logistics job.

The AFGE’s chief shop steward in Pittsburgh, Lori Lydic, worked with Cord for four years. She said when she first learned about the Legionnaires’ outbreak in 2012 and alerted Cord, he didn’t look to remedy the issue, but instead wanted to retaliate against whoever was leaking the news. “His response was ‘Who told you?’ ” Lydic said. “It wasn’t anything about the issue.”

Cord has served at multiple VA facilities over the course of his career, and he has acquired a reputation for striking up romantic relationships with subordinates. Five Butler employees allege that this inappropriate conduct continued there. They further charge that Cord spawned a toxic environment at Butler, one rife with favoritism, secrecy, and a dismissive and retaliatory approach to the union.

Butler’s union president, Ginger Andrews, has requested that the VA’s new Office of Accountability conduct an investigation into Cord’s behavior at Butler. Andrews saw two of her officers fired by Cord, one of whom was a veteran who relapsed following his termination. She said Cord routinely broke union rules, including when he refused to consult with labor leaders during planning and construction of a new facility. Andrews alleged that Cord rushed the process, and an inspection by the VA’s Occupational Safety and Health authority last September found numerous violations, including more than 30 deficient locks and a pharmacy enclave that was too narrow.

“We’ve had patients with wheelchairs get stuck picking up prescriptions,” Andrews said. “When I mentioned that to Cord his solution was that pharmacy personnel could go outside and deliver the medicine to the patient. I said, ‘Where is the privacy for that patient?’ ”

A press representative for the Butler system did not respond to detailed questions submitted by The Nation. Cord did not respond to multiple requests for comment.

Some union officials see this crackdown on low-level employees as a perverse strategy to cut down on salary costs in response to underfunded budgets. Others see more sinister intentions: to cut down the workforce so substantially that all-out privatization becomes inevitable and kneecaps the power of the unions.

In response to a detailed set of e-mailed questions, Cashour, the VA press secretary, said in a statement that the agency sees no problem with the accountability act’s implementation and that any contention that the firings are hurting the agency “sounds like a Union-boss talking point.” He said the number of vacancies at the VA has decreased under Trump while accountability has increased. “Those are indisputably good things,” he said.

In late February, six Democratic lawmakers sent a letter to the VA expressing alarm that the law’s application “runs counter to congressional intent.” A bipartisan group of lawmakers has begun deliberating privately over legislation that would reinstate some of the due-process protections that existed before the law was enacted. Yet the White House seems satisfied with the act’s implementation, with Trump calling for increased accountability measures across the federal government during his State of the Union address in January.

One Pittsburgh veteran whose job as a dining employee is in danger after he had a mental breakdown and recommitted himself to the VA for treatment recently begged for a second chance in a written statement to management.

“We have so many veterans hurting themselves, committing suicide and other things, and I try to take steps to prevent me from doing wrong to myself and others,” he wrote. “And now people are using it against me.”

This article was reported in partnership with The Investigative Fund at the Nation Institute, now known as Type Investigations, with support from the Puffin Foundation.