VA’s attempt to punish senior executives fails
By DIANNA CAHN | STARS AND STRIPES Published: February 1, 2016
Attempts by the Department of Veterans Affairs to hold two senior executives accountable for wrongdoing failed after separate administrative judges sustained the charges against the women yet both ruled to reverse their demotions because of a technicality.
Kimberly Graves and Diana Rubens were demoted last month from high-ranking positions at the VA after they helped push through transfers of subordinates from job positions they wanted for themselves and then collected relocation incentives totaling more than $400,000.
The cases – which were linked but were heard independently -- had drawn harsh attention from lawmakers who demanded accountability at the VA. Congressmen portrayed Graves and Rubens as poster children of what is wrong with the lumbering agency that serves more than 2 million veterans.
Some were critical that the VA did not fire the women, but still welcomed the decision by VA Deputy Secretary Sloan Gibson to demote the two out of executive service because it sent a message that career executives will be held to a higher standard.
In separate decisions, administrative judges in Chicago and Philadelphia reversed the demotions, finding that while the women were guilty of the charges against them – namely that their actions created the appearance that they’d put their own interests ahead of veterans -- other executives who’d taken the same actions were not punished so the women could not be either.
Chief Administrative Judge Michele Szary Schroeder at the Merit Systems Protection Board in Chicago made her ruling last week on Graves, comparing Graves’ actions to her boss’ actions. On Monday, Chief Judge William Boulden in Philadelphia issued his ruling on Rubens, finding that similar actions by another senior executive had gone unpunished.
Calling Graves ruling “a twist of tragic comedy,” the chairman of the House Veterans’ Affairs Committee said the case proved the need for drastic reform of the federal civil service system.
“The outcome of this case is a slap in the face to the many dedicated VA employees who do the right thing on a daily basis,” charged Rep. Jeff Miller, R-Fla. “Enough is enough. Every objective observer knows that the federal civil service system coddles and protects misbehaving employees instead of facilitating fair and efficient discipline.”
The cases were similar, involving many of the same witnesses and similar actions on the parts of the two women, and both used the same law firm to argue their case.
Graves orchestrated her move from a more demanding job as the Veteran’s Benefits Administration Eastern Area Director to a position as director the St. Paul, MInn., regional office. Rubens arranged for her transfer from the Deputy Secretary for Field Operations to director of the Philadelphia regional office. Both women were involved in pushing through the relocations of their subordinates who preceded them in those positions, and at least one of them testified that he’d felt coerced to take a different position – though Boulden did not find evidence to support coercion.
Both women were demoted based on the charge of “failure to exercise sound judgement” by not extricating themselves from the reassignment of their subordinate, thus creating the appearance that their actions were not for the “best interests of veterans.”
Deborah D’Agostino, a federal employment attorney and founding partner at the Federal Practice Group, said that from a legal standpoint, Schroeder’s ruling sent a strong message to the VA that it has to start holding its highest officers accountable.
“It really is about time that someone starts pointing the finger up the chain instead of down,” she said.
“This isn’t the place for getting away with misconduct because you are too high up to be punished,” she said. “So they got called out on it and I hope they are embarrassed by it.”
Eugene Fidell, a Yale law professor and partner at the Washington law firm Feldesman, Tucker, Leifer, Fidell, agreed.
“This sounds like a recognition that upper management should have known about this and stopped it,” Fidell said. “At the end of the day, the accountability is accountability of a political nature. We’ve been through several personnel changes at the top of this troubled department and it may take another set of changes – perhaps under another administration.”
The VA did not respond to requests for reaction to the decisions, and a request to interview the deputy secretary was not answered. Also, Graves’ and Rubens’ lawyers at the Washington law firm Shaw, Ransford and Roth also did not return telephone calls.
At Rubens’ appeals hearing last week, Gibson, the deputy secretary, testified that Rubens’ bosses should have counseled her to remove herself from the relocation process of subordinates whose positions were closely linked to her move to Philadelphia. But Gibson said he did not find that those officials should be charged.
For Gibson and other top officials at the VA, the ruling must be frustrating, said John Palguta, vice president for policy at the Partnership for Public Service, a nonprofit that works to strengthen civil service systems to improve government function.
Palguta noted that last year, Congress helped push through expedited punishment of its senior executives following a series of scandals at the VA in which suspected officials were suspended indefinitely on paid leave while their cases worked through an arcane system.
“Congress passed a law and gave the secretary new authority and still the secretary can’t discipline someone who screwed up,” Palguta said. “If I were putting myself in Gibson’s place, I’d have to wonder, ‘How do I move forward? How do I make sure next time something like this arises, I make sure it sticks?"'
Still, he said, except for a twist, Graves would have been demoted. The judge upheld the case against her and found that the penalty was reasonable.
That puts other senior executives on notice that the system will no longer overlook bad conduct on the part of its executives.
“The game has changed,” he said. “And they are going to be under closer scrutiny.”