On May 9, 2017 the Court of the Appeals for the Federal Circuit issued a ruling about disgraced former Veterans Affairs Phoenix
hospital administrator Sharon Helman. Helman oversaw the Phoenix VA, when the scandal broke about fictitious waitlist times. The waitlist times were used to assess bonuses handed out by the VA. After a suspension and investigation, Helman was eventually fired for charges related to the appointment data, retaliation against whistleblowers, and conflicts-of-interest involving gifts from lobbyists. Helman was later convicted and given probation in the conflict-of-interest case.
The court overturned a provision of the Veterans Access, Choice and Accountability Act. The intent of the bill was to give the Executive Branch more power to fire high level employees for cause. If there was any government employee that deserved to be fired for cause, it was Helman.
Veterans turned out to vote for President Donald Trump in droves in 2016, now it is time for him to fulfill his promise. But after this preposterous ruling by Court of the Appeals for the Federal Circuit, President Trump may not be able to fix the VA. That is, without further action by Congress.
The court ruled that, even though an administrative judge previously upheld Helman’s removal by the VA, she should be allowed to appeal that ruling to the Merit Systems Promotion Board (MSPB). The court ruled the procedure violated the Constitution’s “appointments clause”. Even if an employee commits a crime, he or she cannot be fired for it by an administrative judge.
What is management to do?
How is President Trump supposed to “drain the swamp” if the courts keep throwing the swamp monsters back in the marsh? There are two options. The first option is new legislation that makes these government employees “at will”, meaning they can be fired at any time. The second option is impeachment.
Article 2 Section 4 of the U.S. Constitution states “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
When people think impeachment, they generally think Presidents or judges. But the Constitution clearly states all civil officers. Every federal government employee takes The Oath of Civil Service Employees. This means every government employee is impeachable. Impeachment proceedings begin in the House of Representatives. A member of the House introduces the legislation and it is assigned to the appropriate committee. Once the House votes on impeachment, it goes to the Senate for trial. The House only needs a majority vote for passage.
The Senators act as a jury, taking an oath that they will perform their duties honestly and with due diligence. The accused is allowed to mount a defense. Once the case is heard the Senate deliberate, usually in private. Conviction requires a two-thirds majority for conviction. After conviction, the official is removed from the position they held.
Reform does not seem to be taking hold within the VA, let alone the rest of the federal government. It’s time for President Trump and Congress to take drastic measures. First by attempting to introduce new legislation to make all employees “at will,” reforming the existing civil service system to make it easier to get rid of problem employees—and eliminating performance bonuses that create perverse incentives to behave badly.
But if the Senate blocks that, then Congress should move to impeach employees like Helman, and send them to the Senate for trial. When there’s a waiting list there for all the terrible civil servants who need trials, perhaps then the Senate will allow the legislation to go to President Trump for his signature — so he can clean house and take care of our nation’s veterans.