Making It Easier To Fire Executives Won’t Fix The VA

Last summer, Congress and President Obama, reacting to the scandals at the Department of Veterans Affairs, rushed through a law giving the Secretary of Veterans Affairs a speedier process with which to fire underperforming executives.  Problem solved? Not so fast. There’s a wee thing called due process – which has created a loophole for bureaucrats in the crosshairs to retire instead of being fired.

The law’s drafters seem to have forgotten something every first year law student knows, Goldberg v. Kelly, the 1970 Supreme Court case that requires the state to allow for due process before terminating a benefit.  For the VA executives, that benefit would be their pay, and due process would be the opportunity to challenge the basis for the termination.

Thus while the new law shortened the due process timeline, it could not eliminate it altogether, or, shorten it in such a way that the employee would be deprived of ‘adequate’ time to respond (a potential litigation piñata).

Instead of waiting for the due process clock to run out and risk being fired, certain VA executives have taken the time-honored option to retire (with full benefits) instead.

Longtime federal employees frequently have their retirement papers prepared years in advance, so they can hit the ‘eject’ button at will.

Congressman Jeff Miller (R-FL), the chairman of the House Veterans Affairs Committee, is upset about this. But he ought not to be surprised. He was in the House when the 2010 Arlington Cemetery scandal broke – with the Senate finding as many as 6,600 burial mistakes.

And just how were Arlington Cemetery Director Jack Metzler and Deputy Director Thurman Higganbotham punished? They retired with full benefits (as former high-ranking civil servants, they’re probably each receiving a six-figure pension). Metzler received a letter of reprimand, but it was removed from his personnel file when he retired.

The good news is the outrage resulted in heightened scrutiny, coupled with a complete turnover in management, resulting in a new operational culture and practices. Notably a 2013 Defense Department Inspector General Report stated that Arlington had made “great progress in their overall operations” since 2010.

Yes, Metzler and Higganbotham should have been punished, but that’s a sidebar issue – the real issue at Arlington was the culture of ineptitude.

Significantly, Metzler’s father had been the cemetery’s director, and Metzler had grown up in the director’s house, which is located in the north section of cemetery.

I mention this fact as it is one of the root causes of mismanagement – a sense of entitlement to a management position. Metzler must have felt he was destined to be Arlington’s director, and thereby above scrutiny or accountability. I expect all Metzler had to do was to mention to every incoming Army Secretary that he stood at his father’s side as Metzler, Sr. flawlessly directed the burial of President Kennedy, wait for the Secretary to metaphorically hand over the keys, and let Metzler, Jr. have his way.

Do some people at the VA also harbor a sense of entitlement about their jobs? I expect they do – and reformers need to be ready to dig deeper, beyond the executive level, to change the culture.

Metzler’s case was extreme, but let’s take a quick look at how the job entitlement issue occurs in common bureaucratic practice.

For example, Arnie is a senior executive (technically, in the Senior Executive Service or SES, the top level of civilian pay) at an federal agency. He’s worked for the government for his entire career. A few years ago, Arnie attended a ‘succession planning’ seminar, and was advised to have someone eligible for SES status in his office – to ensure a smooth transition when Arnie retires.

Back at his office, Arnie talks to his most trusted manager, Julia about the seminar. A few weeks later, the personnel office announces a training opportunity for managers in Arnie’s division – with the chosen person receiving SES-eligibility certification when the training is over.

Everybody in Arnie’s division knows that Julia is Arnie’s favorite, and, not surprisingly, she’s the sole applicant for the training. A year later, she receives her SES certification.

A few years later, Arnie is struggling to run his division, which is responsible for a certain government program. His boss, Paul, a political appointee, reads negative press reports about Arnie and his handling of the program. Paul, in turn, is getting heat from the Secretary’s office to do something to stop the negative press.

Many tense meetings and stern words result, and finally Arnie hits the ‘eject’ button and retires. Paul needs to hire Arnie’s replacement. The personnel office tells Paul there is only one person who is qualified for the job: Julia … who was hand-picked by Arnie. She’s the only one who is familiar with the program and is SES-eligible.

Will the program management undergo a much-needed culture change under Julia? Not likely, unless her new boss, Paul, is willing to exert a great deal of pressure. Meanwhile, Paul is distracted as new issues crop up from the Secretary’s office, and Julia counts the months until the new administration arrives.