2 VA senior executives heading back to work without demotions – for now
By DIANNA CAHN | STARS AND STRIPES Published: February 2, 2016
Two Department of Veterans Affairs senior executives found guilty of wrongdoing will go back to work at full pay and status after administrative judges sustained the charges against them but reversed their punishments based on technicalities.
Their reinstatement might not be for long, though.
VA Deputy Secretary Sloan Gibson said Tuesday that he planned to pursue lesser disciplinary actions against the two executives and he hoped the punishments would stick this time.
“What we find ourselves with are two individuals – senior executives – that are being restored to their positions; the charge has been sustained in both cases and there has been no punishment,” Gibson said. “I do not believe that was the intent of Congress so I intend to propose some disciplinary action on both of those two individuals.”
“It’s the right thing to do for veterans and it’s the right thing to do for taxpayers,” he said.
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 – drew 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.
But in rulings reached by two separate judges at the Merit Systems Protection Board – one Friday, the other Monday – the disciplinary actions for Graves and Rubens were not upheld. Both judges found that while the women were guilty of at least part of the charges – namely that they’d exercised poor judgment when their actions created the appearance that they had put their interests ahead of those of veterans – the VA lacked consistency in punishing other executives and therefore, the penalties for Graves and Rubens were unfair or excessive.
The findings fell heavy on the embattled veterans agency, which has been embroiled in scandal over its care for the nation’s former servicemembers.
“Once again, VA’s long and well-documented aversion to accountability is creating major problems for the agency,” said Rep. Jeff Miller, R-Fla., the outspoken chairman of the House Committee on Veterans’ Affairs. “For the second time in less than a week, a judge prevented VA from disciplining an employee involved in a relocation scandal because of the department’s refusal to hold accountable other workers linked to the same scandal.”
Chief Administrative Judge Michele Szary Schroeder in Chicago made her ruling last week on Graves, comparing Graves’ actions to those of her boss at the time, now acting undersecretary for benefits Danny Pummill. Graves arranged her move from Eastern Area director to director of the regional benefits office in St. Paul, Minn.
On Monday, Chief Judge William Boulden in Philadelphia issued his ruling on Rubens, finding that similar actions by another senior executive – Rubens’ deputy at the time, Beth McCoy – had gone unpunished. Rubens arranged her transfer from Deputy Secretary of Field Operations in Washington, D.C., to director of the troubled Philadelphia regional benefits office. When she transferred, McCoy was promoted to replace her.
Boulden also found that because he could not sustain the entirety of the allegations against Rubens, the punishment was excessive. Boulden said he would have been inclined under other circumstances to impose a lesser penalty on Rubens. But the case was being conducted under a law passed by Congress last year regarding VA senior executives that did not allow the judge to mitigate a punishment.
Gibson said he believed that by saying this, the judge was “opening the door” for Gibson to offer up a lesser penalty.
“I think that’s the intent here,” Gibson said. “I am not going to be so narrow here so as not to follow this all the way through to its logical conclusion.”
At Rubens’ appeals hearing last week, Gibson testified that Rubens’ bosses – Pummill, then principal deputy undersecretary for benefits, and Alison Hickey, who resigned as undersecretary for benefits over the scandal – should have counseled her to remove herself from the relocation process of subordinates whose positions were closely linked to her move to Philadelphia. Gibson said he did not find that those officials should be charged.
On Tuesday, Gibson said he asked an investigator to review the new evidence that came out during the proceedings in these cases to determine whether there were grounds to bring Pummill or McCoy up on charges similar to those against Rubens and Graves.
He said he gave the investigator a week to come up with findings, then he will review the information and announce what actions he plans to take.
In notifying Rubens of his decision to demote her, Gibson had stated that he had “lost confidence” in her ability to effectively function as a senior executive.
Asked Tuesday whether he thought Rubens could now return to the Philadelphia regional benefits office and be effective, Gibson said he wasn’t sure. But he said that he was outraged that this case had become a media sensation with “two good women who erred in judgment” whose “reputations have been trashed.”
“I think it’s a disgrace to the process that that is allowed to happen. This is not substantiated by the evidence,” he said.
For VA employee Kristen Ruell, a whistleblower at the Philadelphia office who had been avidly watching the proceedings, Boulden’s ruling came as a blow.
“I have not spoken to one employee that is happy with the way the VA handled this,” she said.
She noted that the judges gave credence to testimony from Gibson, stating that the original investigation into the two women had been flawed. Gibson said the VA Office of Inspector General had failed to prove its conclusions that the two women were guilty of crimes. For that reason, he decided not to fire them, instead disciplining them for failure to exercise sound judgment.
“If they had punished everyone as the Office of Inspector General report suggests, we would have a very different outcome,” Ruell said.
Congressional oversight committees have been pressing for an overhaul of the accountability process at the VA, and Miller and Sen. Johnny Isakson, R-Ga., who chairs the Senate Committee on Veterans’ Affairs, on Tuesday again called for reform.
“Leadership at the Department of Veterans Affairs continues to defend what any casual observer would call a broken system of accountability,” Isakson said. “Actions speak louder than words, and the VA continues to prove that the system they insistently defend before Congress and the American people is in desperate need of change.”
The cases against Rubens and Graves were similar, involving many of the same witnesses and actions by the two women, and both used the same law firm to argue their cases.
Both women moved to less demanding positions while keeping their pay and enjoying hefty relocation incentives. Both were involved in pushing through the relocations of their subordinates in those positions, and at least one of them testified that he felt coerced to take a different position – though Boulden did not find evidence to support coercion.
Deborah D’Agostino, a federal employment attorney and founding partner of the Federal Practice Group, said the rulings sent a strong message to the VA that it has to start holding its highest officers accountable on a consistent basis.
She said the Merit Systems Protection Board rarely rules in favor of the employees. The judges found the women had committed misconduct and yet still decided to reverse the punishments.
“That’s really the agency’s burden – they have to treat everyone equally and if they don’t they have to lay out the reasons why,” she said. “The VA botched it up again.”
Graves’ and Rubens’ lawyers at the Washington law firm Shaw, Ransford and Roth did not return telephone calls.
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, noted that except for technicalities, the demotions would have gone through.
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.”