Lawyer Pans VA's Explanation for Not Firing Convicted Employee

An attorney and expert in federal employment law panned the claim by the Veterans Affairs Department that it could not fire a San Juan VA hospital employee following her arrest in connection with an armed robbery.

Cheri Cannon, a partner in the Washington, D.C., office of Tully Rinckey LLC, said the VA could easily have made the legal argument necessary to fire Elizabeth Rivera. Rivera pleaded guilty in 2015 to a misdemeanor after initially being arrested in connection with -- though not charged with -- armed robbery.

"They have to show that whatever [the crime] was, that it has a nexus to the efficacy or relationship to the job," Cannon told Military.com on Wednesday. "Any good lawyer for the VA could have made the case that the VA's reputation and ability to do its job and services are harmed when you have known criminals working in the department."

"Any judge would have bought that argument," Cannon said.

The VA has not said to what Rivera, a clerk at the hospital, pleaded guilty.

Rivera was in a car with a man identified as Rolando Rios Febus when Febus allegedly stepped out of the vehicle armed with a gun to rob a couple, according to a June 16, 2015, online report on the San Juan news site Metro. After police spotted the robbery in progress, Febus fled on foot, leaving Rivera in the car.

VA Under Secretary for Health Dr. David Shulkin told lawmakers that Rivera ultimately was not charged with armed robbery, but pleaded guilty to a misdemeanor and was given probation.

After first being let go from her job, Rivera was reinstated, angering members of the House Veterans Affairs Committee. In testimony April 19, Shulkin provided lawmakers with an update -- saying he believed that Rivera had been fired.

He later issued a statement saying he was wrong, that she remains employed at the hospital, but that the VA can act only within the scope of the law and federal authority when it comes to discipline.

"As is true in private-sector employment, a federal employee generally cannot be terminated for off-duty misconduct unless there is a clear connection between the misconduct and the individual's employment," Shulkin said.

Rep. Jeff Miller, R-Florida, who chairs the House veterans' panel, called Shulkin's explanation "more proof that the federal government's dysfunctional civil service system makes it almost impossible for VA to adequately discipline most employees, including those involved in serious crimes."

Until the VA gets serious about holding its people accountable, he said, it "will never shake its well-deserved reputation as an agency that coddles and protects corrupt and incompetent employees for wrongdoing."

Cannon said that, as a matter of record, an arrest such as Rivera's would usually end up with the employee fired.

"Unless there are extenuating circumstances, like she didn't have a clue what was going to happen, and maybe someone bought that story," Cannon said. "Maybe an administrative judge sided with her and put her back to work."

-- Bryant Jordan can be reached at Bryant.jordan@military.com. Follow him on Twitter at @BryantJordan.