• P.O. Box 65900 Washington, D.C. 20035-5900
  • 202-257-5446
  • P.O. Box 65900 Washington, D.C. 20035-5900
  • 202-257-5446

April 12, 2016

Sgt. Shaft caricatureDear Sgt Shaft
I read somewhere about a VA employee who was arrested for armed robbery, but is still working for the VA.  Can that be?

George L.
Via the internet

Dear George
As the story goes, a Department of Veterans Affairs employee in Puerto Rico was fired after being arrested for armed robbery, but her union quickly got her reinstated — despite a guilty plea — by pointing out that management’s labor relations negotiator is a registered sex offender, and the hospital’s director was once arrested and found with painkiller drugs.

The woman missed work while sitting in jail but was reinstated in March with back pay.

The incident illustrates how union-backed civil service rules that rely on precedent, coupled with VA’s past failures to discipline problem employees, hamstring the department’s efforts to keep convicted criminals on its payroll.

When veterans at the Puerto Rico VA hospital come to the social work department seeking counseling and guidance, the secretary greeting them, Elizabeth Rivera Rivera, will be wearing a GPS monitor ankle bracelet, a condition of her probation.

Rivera was driving around Puerto Rico in the middle of the night on a Monday with Rolando Rio Febus and robbed a couple at gunpoint. Rivera was charged with armed robbery and her companion with armed robbery and gun charges.

Rebus’ bail was set at $2 million due to multiple previous arrests on gun charges. Bail for Rivera was set at $100,000, which she could not pay, leaving her to miss work while she sat in jail.

When she finally got out, she returned to work, but was detailed to a temporary job with the VA police and security department where she would not interact directly with veterans. She instead was in charge of keeping veterans safe by monitoring security cameras and answering phones.

She was fired from the VA a few months later. She pleaded guilty to two misdemeanors on Feb. 23, 2016, with the more serious charge going away.

This month, she was back at work in her original job as social work secretary, following the successful union grievance. Rivera is close friends with multiple union officials of the American Federation of Government Employees (AFGE) local, referring to one of them as her “sister” on Facebook.

Employees said the union demanded her job back and pointed out that Tito Santiago Martinez, the management-side labor relations specialist in Puerto Rico, who is in charge of dealing with the union and employee discipline, is a convicted sex offender. Martinez reportedly disclosed his conviction to the hospital and VA hired him anyway, reasoning that “there’s no children in [the hospital], so they figure I could not harm anyone here.”

The union’s position — that another employee committed a crime and got away with it, so this one should, too — has been upheld by the highest civil service rules arbiters, and has created a vicious Catch-22 where the department’s prior indefensible inaction against bad employees has handcuffed it from taking action now against other scofflaws.

The same reasoning was used by the Merit Systems Protection Board (MSPB) to justify reinstating VA executives Diana Rubens and Kim Graves after they swindled hundreds of thousands of dollars by bullying others out of jobs and then cashing in on relocation bonuses to take the jobs themselves.

“There is a significant problem created by the inconsistent treatment of a comparable employee, and that this makes the penalty unreasonable under the circumstances,” an MSPB judge wrote.

Axel Roman, a spokesman for the VA Puerto Rico hospital, told The Daily Caller News Foundation that recent violent crime convictions don’t disqualify someone from working for the VA.

“Criminal prosecution or conviction for off-duty misconduct does not automatically disqualify an individual from federal employment. The administrative discipline process for poor performance or misconduct on the job, operates distinctly from the administrative process associated with off-the-job misconduct. Accordingly, one is not necessarily impacted by the other,” Roman told TheDCNF.

A different logic was deployed after the hospital’s director, DeWayne Hamlin, was arrested on suspicion of drunk driving and found in possession of painkillers. He refused to tell police where he got the pills. The diversion of painkillers from VA hospitals for recreational uses has been a major and deadly problem for the VA.

The DWI charge against Hamlin was dismissed because of concerns over the legality of the traffic stop. If discipline and criminal charges are unrelated, as the VA now contends, it could have launched an unrelated internal investigation into whether Hamlin stole drugs. But instead, it used the criminal case’s dismissal to say no administrative action would be taken.

In another case, VA has been paying a nurse’s aide charged with manslaughter of a veteran, citing the inter-relation between criminal and disciplinary matters, at least when it can be used to avoid discipline, such as waiting for a conviction. The union lawyer for another federal employee caught on video stealing from the government argued that disciplinary action can’t take place unless an employee is convicted in court, yet if there is no criminal case, then one can’t be disciplined because the action might unfairly convince prosecutors to build one.

Eugene Lugo, the AFGE local president in Puerto Rico did not respond to request for comment when TheDCNF called him about the Rivera case. James Hutton, VA’s chief spokesman in Washington, D.C. did not respond to a request for comment from TheDCNF.

Rivera answered her work phone but declined to discuss her criminal conviction.

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