VA scandal should remind fed employees of their entitlement to disobey

Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

President Barack Obama – in the wake of emerging details about the Phoenix VA secret waiting list scandal – recently threatened that “anybody found to have manipulated or falsified records at VA facilities has to be held accountable.” With this threat out there, I believe one issue that needs to be ascertained is whether, or to what extent, any federal employees were “cooking the books” under orders.

An interim report by the Department of Veterans Affairs’ Office of the Inspector General (OIG) stated schedulers at various VA locations claimed scheduling supervisors told them “to review…[clinic appointment availability]reports and ‘fix’ any appointments greater than 14 days.” These schedulers claimed they “were instructed to reschedule the appointments for less than 14 days.” However, Phoenix VA officials reportedly denied ever ordering staff to conceal waiting times.

With the president saying he intends to hold “anybody” accountable for their involvement in the alleged deceptive scheduling schemes, that means the hammer could come down on people in management who allegedly ordered the manipulation or falsification of records, if any, and any rank-and-file employees who allegedly carried out those orders. Only time will tell if any federal employees will attempt to avoid discipline for their involvement in the secret waiting list scandal by raising an obedience to orders defense.

While serving as the chairman of the Merit Systems Protection Board (MSPB), I adamantly believed federal employees’ obedience to orders is absolutely crucial to the federal government. As I stated in a dissenting opinion to Pedeleose v. Department of Defense (2007), “an employee must obey an instruction from a superior, even if he disagrees with it, and grieve the propriety of the instruction later.” I added that only in “unusual cases” are employees not required to obey orders. In Pedeleose, I disagreed with the Board’s attempt to create a new exemption to the MSPB’s so-called “obey now, grieve later” principle under which an employee would be allowed to disobey an order to cooperate with an investigation into workplace rumor spreading.

Exceptions to the obey now, grieve later principle that I identified in my dissenting opinion included situations involving “an unlawful instruction,” orders that would put the employee in “danger of serious harm” or orders that would result in an employee’s “surrender of a constitutionally-protected right.” I’d add that in Larson v. Department of the Army (2001), the U.S. Court of Appeals for the Federal Circuit said an employee would be entitled to refuse an order when he “reasonably believed that the order in question placed him or others in imminent danger.”

Looking at these exceptions, I believe there is a chance a federal employee would have been entitled to disobey any such alleged orders to manipulate or falsify documents at VA facilities, so long as such actions would have put patients’ safety in danger. The VA OIG identified 1,700 veterans were not on existing wait lists, and CNN reported that at least “40 American veterans died in Phoenix while waiting for care at the VA there.” If these allegations are true, they may satisfy the obey now, grieve later exception’s safety concern element, at least in any instances that exposed patients to “imminent danger.” I’d note, too, that the Federal Circuit in Larson said concerns over waste – instead of safety – “are subject to the general rule that an employee must obey now and grieve later.” In other words, an employee would not be entitled to disobey an order to manipulate or falsify records that would result in a gross waste of funds.

While orders to manipulate or falsify records are generally unlawful, meaning employees would be entitled to disobey them, it may be debatable as to whether the orders were clearly unlawful. And the government’s ability to discipline employees who carried out any unlawful orders may hinge on how clearly unlawful those orders were to a particular individual. While well-educated, experienced employees may have been cognizant of the ramifications of keeping secret waiting lists, it is possible less-educated, less experienced subordinates would be aware of such consequences. The defense, “I was just following orders,” may work for the subordinates, but it would be a stretch for the veteran employees.

Federal employees also need to remember that the decision to disobey an order carries its own risks, namely a charge of insubordination. If employees are concerned about an order that seems unlawful, they should consult with an experienced federal employment law attorney who can assess its lawfulness. Depending on that assessment, the employees may be entitled to disobey the order or be required to obey it and then file a complaint with the Office of Special Counsel or the agency’s OIG. One misstep here can order an end to an employee’s career in the federal civil service.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.