Legislation (S-2291) recently introduced in the Senate designed to hold agency management more accountable for retaliating against whistleblowers could run afoul of due process protections under the Constitution, MSPB has said.
The board, which hears whistleblower complaints–brought either by the Office of Special Counsel or by individuals who may appeal directly if the OSC doesn’t intervene–issued a statement to the Veterans Affairs Committee, which is considering the newly offered bill.
Under the bill, those found to have committed a personnel practice violation would be subject to an automatic proposal of specified disciplinary action and would have only five days to respond, rather than the usual 30. Rights to appeal to the MSPB would be retained but the hearing officer would have to issue a decision within 21 days or else the discipline would stand by default, and there would be no appeal beyond that level.
The MSPB said that a court case is pending that challenges similar provisions applying only to the SES at the VA under a law enacted last year. In particular, it said, case law requires that public employees be given a “meaningful opportunity” to respond prior to a termination, to be made aware of the charges the employer will make, present a defense to those charges, and appeal the removal decision to an impartial adjudicator. Also in question is whether ending the merit board’s appeal role in such cases would violate that agency’s role under law, it added.
Also under the bill, a central whistleblowing office in the VA would be established to investigate all whistleblower complaints made by or against department employees and treatment of whistleblowers would become a required part of a supervisor’s performance evaluation.
