Legal Meets Practical

As I begin this blog, I can’t help but think of the words of Ron Swanson of Parks and Recreation:

(to couple in bar)

“Hello. My name is Ron Swanson. In general I try never to speak with people. But I have been drinking this Snake Juice thing, and it is damn good. You should buy it.”

“Yeah, okay. Thanks, man.”

“Son, you should know that my recommendation is essentially a guarantee. Drink this. Now.”

Ron and I have few things in common, as I do not like shooting deer and cannot handle whiskey; also, I cannot grow a mustache. We are, however, similar in our refusal to endorse or recommend anything other than something we can stand behind wholeheartedly.

One thing I can stand behind wholeheartedly is the annual conference hosted by the National Veteran Small Business Coalition (“NVSBC”), a veteran business organization with a mission of transitioning veterans into business owners servicing the federal government. As an attorney who focuses on helping veteran business owners working in federal space, the NVSBC is the one organization with which I’m very active – they’re extremely well-organized, have a tight community of folks who help each other out on procurement issues, offer a boot camp and monthly dinner meeting in the Washington, D.C. area, and are overall a great resource for their members across the country.

Every year, the NVSBC hosts its Veterans Training Symposium, or VETS 16 this year, to bring together veteran-owned businesses who want to learn more about maximizing their federal contracting opportunities. For two years running, the conference has been in Norfolk, Virginia, at the Waterside Marriott. This year, it’s from June 20th through the 23rd at this location.

The NVSBC conference is worth the investment for three main reasons:

• The attendees, the number of which ranges in the several hundreds (at least three hundred), are a very close-knit community. These are folks who know each other, and team with each other and help each other; and interacting with this type of group as opposed to faceless thousands (such as with the VA’s conference), is much more fruitful (especially for teaming opportunities). There are numerous networking opportunities throughout the conference.
• The learning sessions are practical and helpful. This year, there are twelve to pick from, including: what prime contractors expect of subcontractors, pitfalls of VA verification, how to compete in a mid-tier market, when and how to protest, and using social media. This is an opportunity to get free advice from experts. Full disclosure – I am one such expert this year (speaking on bid protests and VA verification).
• As many procurement officials attend, contractors have the opportunity to learn the needs of contracting agencies and how to get in on the opportunities. They also can make valuable connections.

Last year, I recommended this conference to several veteran business owners who attended, and each of them thanked me for the recommendation and highly praised the conference. In other words, I don’t see this entry as a “fluff” piece, but as a continuation of my normal blog – I truly feel that this is information that can help veteran business owners, because this conference is wonderful.

If VETS 16 sounds like something that might be valuable to your business, visit the website to learn more. As a tip, I believe this conference is the best fit for small businesses seeking to learn more about federal procurement, growth opportunities, and how to leverage veteran status.

I hope to see you at VETS 16 in Norfolk!

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran business issues at: https://legalmeetspractical.com.

Ron Swanson approves this message.

Last year, the U.S. Department of Veterans Affairs Office of Inspector General (“OIG”) conducted spot checks (i.e., an audit) at 10 veterans benefits offices around the country to make sure that VA staff members were following Veterans Benefits Administration’s (“VBA”) policies on the management of veterans’ and other governmental paper records.

The OIG came to a disturbing conclusion, finally publicly released ten months after the audit: the VA has been systemically shredding documents related to veterans’ claims – some potentially affecting their benefits. This conclusion is documented in an April report (the “Report”).

The VA Office of Inspector General conducted the surprise audit at 10 regional offices on July 20, 2015, after an investigation into inappropriate shredding in Los Angeles found that staff there was destroying veterans’ mail related to claims.

Investigators arrived unannounced at regional offices and sifted through 438,000 documents awaiting destruction as of 11 a.m. Of 155 claims-related documents, 69 were found to have been incorrectly placed in shred bins at six of the regional offices: Atlanta, Chicago, Houston, New Orleans, Philadelphia and Reno, Nev. There were none at Baltimore, Oakland, San Juan and St. Petersburg, Fla.

Investigators determined that two of the 69 documents affected benefits directly, nine had the potential to affect benefits and the rest would not affect benefits but were required to be in the claims folders before destruction and were not there.

It was enough, the report said, to conclude that not only were the problems systemic, the impact could be serious.

“The potential effect should not be minimized,” the Report concluded. “Considering that there are 56 [VA regional offices], and if weekly shredding is conducted, it is highly likely that claims-related documents at other VAROs are being improperly scheduled for destruction that could result in loss of claims and evidence, incorrect decisions and delays in claims processing.”

In the Report, the OIG determined that the errors in destroying claims documents in general stemmed from a lack of understanding of the Veteran’s Benefits Administration policy on managing paper records. The OIG recommended that the Acting Under Secretary for Benefits Danny Pummill revise the policy to ensure claims documents are clearly identified, and develop/implement detailed and standardized procedures for records management staff to review documents. It also called for safeguards to ensure that the documents get the mandated levels of review, that employees comply with the policy, and that supervisors conduct periodic reviews of the claims-related documents slated for shredding.

In its response, the Veteran’s Benefits Administration concurred with the recommendations and agreed to revise the policy and also realign staff responsibilities to “ensure procedures are in place to track all shredding violations identified.”

But it denied that the findings indicated a systemic issue. “VBA knows that every veteran’s record is important and regrets these human errors,” the response said. “However we disagree that a fraction of a percentage error rate is indicative of a systemic issue.”

What do you think? Are these findings an anomaly, or do they reflect a systemic issue? (As a note, I’ve blogged on this before, so this isn’t a new issue). I do find it interesting that the VA denies this is a systematic issue, while its OIG waited nearly a year after the audit to publicize the findings. If it didn’t need to hide a systematic issue, why not be transparent?

Also, if you’re a veteran who has waited five years to have your claim decided, and then receive a denial that fails to account for an important medical decision that would have granted your claim, does that distinction matter to you?

Access the OIG’s Report here. Also, if you found this article informative, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: https://legalmeetspractical.com.

As an employer, if one of your workers was convicted of armed robbery, would you feel comfortable keeping them on your payroll? Here’s your access to our electronic system, and office key. . . .  Probably not, but hey – you’re not the U.S. Department of Veterans Affairs (VA). You have standards. Also, to be fair, you’re not constrained by laws in place to protect an employee who happens to hit up a liquor store.

During a House committee hearing last week, current VA Health Under Secretary David Shulkin was challenged to explain why the VA continues to employ an individual charged with armed robbery at the VA Caribbean Healthcare System in Puerto Rico, in the social work department. First, Mr. Shulkin denied that the individual was still employed, but he changed his tune after some not-so-gentle prodding.

Despite missing a good deal of work because she was – er, required elsewhere – Ms. Robber still pulls a paycheck from the VA. And she’s not alone in her situation. A host of other VA employees at the same facility have been involved in serious crimes, including a convicted sex offender, and the hospital director, who was charged in 2014 with driving under the influence and possession of a controlled substance. Clearly, to protect its integrity and to maintain consistency, the VA did not want to treat Ms. Robber any differently. (In fact, her being “treated differently” from these other offenders was the winning argument in the hearing that resulted in her being reinstated). As such, we will continue to pay her salary with our tax dollars.

The VA told Congress – with a straight face – that how an employee entertains herself when she is off the clock is none of our business — even if it is blatantly illegal behavior endangering herself and others.

Even if we were to accept this argument, the fact of the matter is that when you are being tried for a crime, this takes a good deal of your time. Weeks, perhaps months. Maybe the employee was incarcerated and unable to show up for work for weeks at a time. That’s okay – the VA still held her job for her, while others working in her department were likely required to pick up the slack. They also compensated her with back pay.

And when she came back? Would you feel comfortable working with someone convicted of armed robbery, immediately after the conviction? (In this case, the employee entered a guilty plea for participating in the gunpoint robbery of a couple enjoying an evening stroll).

While the VA should be bashed for its decision to keep Ms. Robber on the payroll, the fact of the matter is that it is almost impossible to fire a federal employee. If the VA is not permitted to fire an employee due to constitutional protections in place, and it does it anyway, those pillars of our society can sue for their jobs back before the Merit Systems Protection Board (remember Diana Rubens and Kimberly Graves?). And receive them, with back pay. This is not the case with private employers – so long as a contract doesn’t provide otherwise, and the employer is not discriminating in any way, the employer can fire an employee for something as simple as the employee not being a “good fit.”

When will it end? Last summer, the House passed the VA Accountability Act, but due to constitutional issues, it’s not likely to get past the President. Is there anything that can (or will) be done to stop the VA’s continued downward spiral?

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran and small business issues at: https://legalmeetspractical.com.