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Infamous VA Official Fired, but Not for the Reason You'd Expect: 'Like Getting Al Capone for Tax Evasion

"...an agency must connect the dots..."

A Department of Veterans Affairs official who came to symbolize the VA's failure to provide medical care for veterans was officially fired this week — but not for her role in the health care scandal.

On Monday, an administrative judge dismissed the VA's arguments that former director Sharon Helman played a role in those problems in Phoenix, where the wait time issue was first discovered. Instead, he only upheld the VA's complains that Helman took thousands of dollars worth of gifts from a health care company looking to do business with the VA, and for improperly putting a subordinate on administrative leave.

Screen Shot 2014-12-23 at 2.42.34 PM VA Secretary Robert McDonald tried to fire an official for her role in the VA health scandal, but only got her for taking gifts.
Image: Scott Gries/Invision for JPMorgan Chase/AP Images

The gifts were a combination of tickets, trips and other perks — including a visit to Disneyland that cost more than $11,000.

While those charges were upheld and were enough for her to be formally fired, Helman's dismissal now has nothing to do with the huge wait time scandal that led former VA Secretary Eric Shinseki to resign, and prompted Congress to pass a VA reform law earlier this year.

The decision raises immediate questions about whether the law Congress passed will be effective in allowing the VA to fire officials involved in the scandal. The VA was already being criticized for not moving quickly enough to fire those officials, and this week's ruling could force Congress to examine whether the VA needs additional tools.

"This is like getting Al Capone for tax evasion," one House aide told TheBlaze in response to the Helman decision.

House Veterans' Affairs Committee Chairman Jeff Miller (R-Fla.) said he was troubled by the final decision, and said his committee would examine it in the next Congress.

"[T]he fact that the ruling did not connect the central figure of VA's wait time scandal to any wait time schemes demonstrates a huge problem with the way this case was handled," he said. "Either the department did not do a good enough job investigating Helman's misconduct – an assertion underscored by the fact that VA's inspector general did not interview Helman – or the MSPB should have used a little more common sense in evaluating the allegations against her."

The reform law approved over the summer lets the VA secretary quickly fire anyone for misconduct, an authority Congress gave so that the VA could eliminate people involved in the health care scandal. It took several months before VA Secretary Robert McDonald decided to remove Helman from her job — she had been on paid leave since May 1.

But while McDonald said Helman would be formally removed from the VA, the new law gave Helman a chance to appeal to the Merit Systems Protection Board. Herman appealed, and the Board released its decision on Monday.

The 61-page decision examined several claims the VA made as justification for firing Helman. But Chief Administrative Judge Stephen Mish rejected the two main charges — that lack of oversight from Helman allowed service at the Phoenix office to deteriorate.

For example, the VA said Helman failed to see that veterans were waiting months and even years to get health care. But the judge said the VA failed to demonstrate any actions or inactions on the part of Helman that led to that problem.

"To phrase it more colloquially, an agency must connect the dots of fault from the identified failure by the subordinates back up the line to the manager," the judge wrote. "The agency did not attempt to do so here. Accordingly, this specification is not sustained."

Similarly, the VA said Helman failed to process 2,500 new claims that were found, which led hundreds of veterans to be without healthcare for more than a year. But the judge again said the VA did not provide enough information to the Board.

"The agency has not proven the appellant failed to take 'immediate action to remedy the situation,' " he wrote.

Those two decisions seem to raise questions about whether the VA put forward arguments that were detailed enough to withstand a review, and possibly whether the VA is competent to submit arguments that can be approved by the Board. The judge indicated that the VA could have done more to show explicit examples of Helman's failures.

But it also raises the question of whether the Board itself wants to approve the VA's requests to fire officials. Earlier this year, the Board released a rule in which it openly questioned the constitutionality of the law allowing for faster firings at the VA.

In the Helman ruling, the judge also indicated that the law only gives the Board a few weeks to do "what normally requires several weeks or more to do correctly," and that expectation is "simply not realistic."

Those problems aside, the judge did accept the VA's argument that the roughly $15,000 in gifts that Helman accepted were inappropriate. The gifts came from Jefferson Consulting Group, a health care company that was trying to do business with the VA.

The judge also accepted the argument that Helman erred when she put a subordinate on administrative leave after that subordinate gave information to Sen. John McCain (R-Ariz.). That action appeared to be retaliatory, and Helman should not have done it.

The judge noted that Helman argued against all of the VA's claims against her, including the taking of gifts. The judge strongly disagreed with her on that charge, and said in his opinion, it's not worth reinstating her at the VA because she is not likely to be rehabilitated.

"I conclude the appellant has little rehabilitative potential," he wrote. "She has steadfastly denied any wrongdoing in the course of this appeal and attempted to deflect attention from her own actions by pointing to political considerations and complaining the agency has been looking in to her private life."

One last thing…
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