VA Faulted in Nearly Failed Effort to Fire Phoenix Hospital Boss

In the end, the former head of the VA medical center in Phoenix lost her job because of inappropriate gifts she accepted -- not because of her role in a far more serious scandal involving secret waitlists.

Sharon Helman was in charge of the Phoenix facility when it was manipulating wait times to hide the fact that veterans faced long delays to see doctors and receive care. But were it not for concert tickets, trips and other gifts she received from her onetime boss-turned-consultant, she would be back at her job, said Cheri Cannon, a former deputy general counsel for the Air Force at the Pentagon.

"They mishandled this," said Cannon, an attorney with the law firm Tully Rinckey in Washington, D.C., referring to the VA inspector general's office, headed by Richard Griffin. "The inspector general didn't do what it should have done, including talking to Helman."

Cannon was also critical of the law the VA used to fire Helman. The statute is intended to speed up terminations but was still being crafted on Capitol Hill at the time of the agency's investigation into the matter. Helman appealed the decision to a federal administrative panel, known as the Merit Systems Protection Board, which upheld her dismissal.

The details of Helman's case aren't lost on Rep. Jeff Miller, R-Florida, chairman of the House Veterans Affairs Committee and one of the law's principal backers.

"While I am glad the [Merit System Protections Board] upheld Sharon Helman's firing, the 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," Miller 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," he added.

Miller said his committee will take up the issue when Congress reconvenes in January in order to "help maximize the [VA's] ability to get rid of corrupt and reckless managers in the future. "

Helman was fired in late November after being on administrative leave for about seven months.

During months of congressional hearings, many lawmakers demanded Helman's ouster. They held her responsible for a scandal in which officials manipulated patient wait times that resulted in delays in care and, some argued, even deaths.

But there wasn't a whisper on Capitol Hill over the illegal gifts of air travel, concert tickets and a Disneyland vacation -- all paid for by Dennis Max Lewis, her onetime boss within VA who had left the agency to become a healthcare consultant.

Cannon said the VA lucked out by discovering the gifts Helman accepted because it was evidence of actual wrongdoing that it could prove, and the administrative board could validate her firing based on those charges without having to directly address shortcomings in other aspects of the law and how it applied to her case.

The problem the VA still must face is that the law intended to make it easier to fire employees, including senior executives, is unconstitutional, Cannon said.

The law stipulates, among other things, that if the administrative panel doesn't rule on a fired employee's appeal within 21 days, then the dismissal is upheld. Cannon said that the Fifth and 14th Amendments to the Constitution state that government cannot deprive a person of property without due process of law, and the Supreme Court has previously ruled that a public-sector job is the employee's property.

"Therefore employees cannot be removed or demoted from such jobs without due process," she said.

Arbitrarily limiting the time a board has to act to three weeks, and then making a firing permanent if it fails to act in that time, doesn't pass as due process, according to Cannon, who believes the first time a U.S. District Court is asked to rule on that law, it will strike it down.

Helman does have the right to bring her appeal before a federal district court, but Cannon believes she is unlikely to do that. Given the charges that were proven against her, she would not be a good candidate to press the case.

Cannon said the VA also messed up by giving fired employees only five days to appeal their termination. That was not in the law, but created by the agency, she said, to lend an appearance of due process. The VA could just as easily have made it seven days or 10 days or longer, she said.

The appeals board, she said, was able "to punt" on making a real call on the fairness of the five-day period by claiming that Helman's five months of administrative leave -- prior to being fired -- gave her plenty of advance warning.

For now, one thing the VA can do to strengthen its position is extend the appeal period beyond five days.

It can also choose to go back to using the law and process it used before President Obama signed the new statute in August. Cannon said the new language didn't supersede the previous statute, but was put in place as another tool to be used.

Congress can remedy some of the flaws by removing the provisions stating that a firing is permanent if an appeals board does not act within 21 days, she said.

 Miller isn't worried about the law since Congress and President Obama believe it's constitutional.

Another takeaway from the appeal board's ruling for Miller is the judge's contention that higher-ups in the agency knew or should have known about the nationwide scheduling problems.

The ruling quotes testimony from one witness who claimed to have briefed former VA Secretary Eric Shinseki and other senior officials on the problems as far back as 2009.

"[This] underscores the need for a detailed investigation into whether VA officials in Washington knew about widespread wait time fraud and when they knew it," he said. "VA leaders owe it to our veterans and America's taxpayers to seek answers these unknowns."

-- Bryant Jordan can be reached at bryant.jordan@military.com.