The Birds Nest - Training, Educational, & Opinions

OPINION: Could a Veterans Affairs Employee be Liable for Failing to Meet the ICARE Regulation (38 CFR 0.600-0.602)

It turns out the Department of Veterans Affairs (VA) adopted Title 38 Code of Federal Regulations (CFR) 0.600-0.602, on or about July 13, 2012, the Core Values of ICARE; which stands for Integrity, Commitment, Advocacy, and Excellence.

The complete law can be found on the US Government Publishing Office website and we have provided the page(s) of importance to this publishing:

So, could they be liable? We believe they could be liable in many ways. One way may be through the Federal Tort Claims Act (FTCA) and we have such belief in practice; as we have submitted an FTCA claim related to the failure of these values to the Department of Veterans Affairs, Office of General Counsel, Tort Law Group.

At the core, the VA has a duty to its veterans. It even says it in the mission statement. They have tons and tons of policies which cover the conduct and expectations of their employees, but there seems to be a systemic problem with adhering to the standards (at least through what we have heard (the rumors)). We have been subjected to the lack of proper performance of duties and such topic is one we can speak to with affirmation.

In our case, a VA Police Chief decided to conduct a campaign of conduct which is outside the legal limits of his office. He even performed such harmful acts in his private capacity and a Federal Lawsuit has been filed on such actions too.

The concept of liability becomes even more interesting when one reviews the language of one law within the State of Texas Penal Code (TPC).

The law of review is the Abuse of Official Capacity statue found under 39.02 of the TPC:

The TPC requires an intent to benefit, harm, or defraud someone by violating (intentionally or knowingly) a law of one’s office or employment.

The TPC also allows for intent to benefit, harm, or defraud someone by intentionally or knowingly misusing government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.

Many agencies do have some form of minimum use policies, so we are not referencing the lower level concerns within this publishing, but the more intentional acts of neglect of veterans.

Again, there needs to be a law related to the individuals office or employment and it has to impose a duty on the person (directly or indirectly) or govern the conduct of the person.

In order for the State of Texas to recognize something to be a law, for TPC purposes, it must be part of the Constitution, a written opinion of a court of record (this would not include Justice of the Peace Courts (as they are not Court of Records; however, there may be some overlap with other concepts)), a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statue.

A rule includes a regulation, such as the Code of Federal Regulations. So, in conclusion, in our opinion, one could be liable for violation of the ICARE Regulations if he does not do his job, knowing the values exist and intentionally neglecting his duty which may harm, benefit, or defraud another.

This is not a far stretch. The Government has a duty to the people. If the government employee does not perform his duty “faithfully,” per his Oath of Office, and under the CFR within this publishing, he may be criminally and civilly liable; in our opinions.

Maybe it is time for the State of Texas to take an active role in how veterans are treated within the VA system? The only other concern to address would be a matter of jurisdiction. The only land the State of Texas would not have interest to act is exclusive jurisdiction of the US.