Helman faces a legal battle in lawsuit to regain VA job

Former Phoenix VA Health Care System Director Sharon Helman is suing in federal court to get her job back, but the Department of Veterans Affairs argues she will have to overcome a law written specifically to bar such appeals.

In a one-page petition, Helman's attorneys asked the U.S. Court of Appeals in Washington, D.C., to review an administrative-law judge's decision that upheld Helman's firing. Neither that filing nor follow-up materials in the court docket explain the grounds for her appeal.

However, a response filed April 27 by the VA argues that the request should be thrown out.

It says the Veterans Access, Choice and Accountability Act of 2014 was drafted by Congress in part to expedite the firing of VA executives for misconduct or negligence, and includes a provision that chief administrative judge rulings are "final and shall not be subject to any further appeal."

The VA also contends that, even if the court ignores that provision of law and accepts the case, Helman's appeal is moot because it was filed after a 60-day deadline imposed by statute.

In an e-mail statement, Rep. Jeff Miller, R-Fla., chairman of the House Committee on Veterans' Affairs, told The Arizona Republic: "I think Sharon Helman's arguments will be about as successful in a court of law as they were in the court of public opinion. Nevertheless, I still have serious concerns about the overwhelming lack of accountability at VA in the wake of the biggest scandal in the department's history."

In response to inquiries, a VA spokeswoman noted that, since last June, 91 percent of the department's medical facilities have new leaders or leadership teams.

Helman has rejected interview requests since she was suspended last May amid a nationwide VA health-care controversy. Her attorney, Debra Roth, did not respond to e-mail or phone messages Tuesday.

Helman became a central figure in the veterans' health-care crisis after physicians and patients at the Carl T. Hayden VA Medical Center complained about delayed appointments and a fraudulent record-keeping system.

Helman and two other Phoenix administrators — Associate Director Lance Robinson and Health Administration Systems chief Brad Curry — were placed on administrative leave a year ago pending investigations.

The VA Office of Inspector General ultimately found that the Phoenix VA hospital, and at least 109 other veterans health-care facilities, were providing untimely care and manipulating appointment data.

The OIG report concluded that Helman, who was paid $169,000 a year plus bonuses, knew of falsified statistics and received extra pay based on performance evaluations touting those numbers.

The VA has sought to retrieve a $9,080 bonus received in 2014. Helman is contesting that action as well in a separate administrative case that has not concluded.

Meanwhile, Helman was subjected to an internal investigation and fired on Nov. 24 for lack of oversight, whistleblower retaliation and failure to report gifts.

Helman appealed that decision to the Merit Systems Protection Board, claiming her due-process rights were violated and disputing the allegations.

In December, Chief Administrative Judge Stephen Mish threw out most charges against Helman related to fraudulent wait times and whistleblower reprisal, saying they were based on unproven hearsay.

In a news release at the time, Helman's lawyers said VA officials used their client as a scapegoat.

"Sharon Helman did not kill veterans," they wrote. "Sharon Helman did not manipulate wait-time data. The VA's preferred story line has been proven a fabrication ..."

However, in that same ruling, Mish upheld Helman's termination based upon the inappropriate gifts.

According to investigative records, Helman accepted a family vacation to Disneyland, concert tickets and thousands of dollars in other perks from Dennis "Max" Lewis, a lobbyist who had previously been a VA administrator and her boss.

Those gifts were not reported as required on financial-disclosure forms.

The feud over Helman's fate is part of a larger, national controversy about the VA's ability to hold employees accountable for misconduct.

Members of Congress have hammered VA Secretary Robert McDonald for months about the failure to fire corrupt and incompetent employees.

The passage of more than a year without disciplinary decisions for Robinson and Curry also has been a key issue.

VA leaders did not launch an internal investigation of their conduct until late 2014. That inquiry was halted and restructured after revelations that at least one investigator had been discredited in Mish's Merit Systems decision.

A new panel convened weeks ago and has been conducting interviews, but the investigation apparently remains open.

Meanwhile, Robinson and Curry have been paid more than $250,000 while at home under suspension, according to federal records.

Congressional outrage was compounded early this year when McDonald claimed in a television interview that the VA had fired 60 employees for wait-time manipulations.

Subsequent analyses of VA records by Miller's committee showed only eight were disciplined in connection with the scandal, and not one was fired for falsifying data.

Rep. Kyrsten Sinema, D-Ariz., who last week joined Miller in sponsoring new legislation that would hold corrupt and incompetent VA employees accountable, expressed disgust with the department's failure to compel integrity and performance standards.

"It's now been over a year and these two (Robinson and Curry) are on paid administrative leave," she told The Republic. "That's ridiculous. They've been sitting at home eating bonbons getting paid — and they've done jack.

"Every time I talk to the secretary, I'm like, 'Why have you not fired more people?' ... And the secretary says, 'Well, the process is very long and there's due process, there's all these steps, blah, blah, blah.' "

Referring to the newly proposed VA Accountability Act, Sinema added, "It's bipartisan, and I feel like we're going to be able to get it through the House and I think we can get it through the Senate, too. So that's my new big VA project. We keep hearing excuses from the VA about why they haven't taken action on these cases after — for crying out loud — a year. We're going to help them along."

Miller also excoriated the department: "VA has not successfully fired any employees at all for wait-time manipulation," he wrote. "At the epicenter of the scandal in Phoenix, two facility leaders have been on paid leave since May of 2014. This is precisely the type of situation that makes the average citizen lose faith in their government ..."

Late last month, Miller's panel unanimously voted to subpoena VA records. It was only the third House committee subpoena to the department ever.

McDonald objected in a letter to Miller, claiming that the VA strives to cooperate with congressional oversight and complaining that the committee's staff has released some documents to the press.

In a blistering response, Miller noted that the subpoena was approved unanimously by Democrats and Republicans.

He cited numerous instances of "mismanagement, malfeasance and dishonesty" from the VA. Among the listed examples: McDonald's statement that 60 employees were fired, and assertions by other VA officials last year that there were no wait-time manipulations or secret appointment lists in Phoenix.

"One can only wonder what the situation at VA would be like today if we had simply believed the VA officials," Miller wrote. "... The department's continuing and pathological aversion to provide prompt, complete and accurate responses to our requests can only be judged as an attempt to cover up bad information."

Republic reporter Paul Giblin contributed to this article.