VA “Office of Accountability and Whistleblower Protection”

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Wishful Thinking that an Internal Department Can Do a Better Job than Outside Oversight

“THE PROJECT ON GOVERNMENT OVERSIGHT”

“An internal VA office handling whistleblowers “may do far more damage than good.

It is incredibly important that whistleblowers have the ability to go to an independent office to report wrongdoing, since an internal office could be pressured to act in the VA’s interest by covering up problems and silencing whistleblowers.

The new office aims to address the lack of accountability at the VA and stop widespread retaliation against VA whistleblowers. Will this new office turn the VA around? Or is it just window dressing? And what will its relationship be with the Central Whistleblower Office that Congress created by law to address these problems late last year? Or to the Office of Accountability Review created by the VA in 2014 to “ensure leadership accountability for improprieties related to patient scheduling and access to care, whistleblower retaliation, and related matters that impact public trust in VA?”

This new executive order is the latest reaction to a scandal that blew open in 2014 whose wounds still fester to this day. News stories involving rampant access-to–care and other healthcare problems at VA facilities reached a fever pitch at the time. Whistleblower disclosures fueled media coverage and Congressional hearings, led by the House Veterans’ Affairs Committee. Retaliation claims by VA employees swamped the independent Office of Special Counsel (OSC), where I used to work. The Project On Government Oversight (POGO) was subpoenaed by the VA Office of Inspector General (OIG), an overreach of the OIG’s authority that sought to sought to uncover information about whistleblowers coming to POGO. Though the news coverage has waned, the VA continues to be the subject of widespread whistleblower disclosures and retaliation complaints. A common thread in a number of troubling cases is the failure of the VA to remove or otherwise discipline bad managers, some of whom retaliated against whistleblowers.

The new office “will help the Secretary of Veterans Affairs to discipline or terminate VA managers or employees who fail to carry out their duties in helping our veterans. The Office will also identify barriers to the Secretary’s authority to put the well-being of our veterans first,” according to text of the draft executive order obtained by Axios. The rest of the executive order has not been made public yet.

At a press briefing on April 26, VA Secretary David Shulkin provided some additional information about the new office. He said the Central Whistleblower Office (CWO) will be part of this new Office of Accountability and Whistleblower Protection (OAWP), and that the Office of Accountability Review (OAR) will not be replaced by the OAWP. The OAWP “is a broader office that will be taking a look at all our employees,” said Secretary Shulkin, according to Federal News Radio. The head of the OAWP will report directly to the Secretary, unlike the OAR, which is inside the VA’s Office of General Counsel. The executive order will also create a task force to root out duplication in the VA and waste, fraud, and abuse — functions that are already being done by the VA’s OIG and the Government Accountability Office.

“The Devil’s in the details for the Office of Accountability and Whistleblower Protection at the VA,” wrote Eric Hannel, former Republican staff director of the House Veterans’ Affairs Oversight and Investigations Subcommittee. Mr. Hannel led the Congressional investigations into the VA and worked with scores of VA whistleblowers. “Just creating an office doesn’t accomplish anything, especially when many of the same processes to remove employees remain in place as do many of the same employees with the same ‘look away’ mentality.”

Mr. Hannel had direct experience with the VA’s Office of Accountability Review, meant to do many of the same tasks as the office being created by President Trump’s new executive order.

“The new office added the words ‘whistleblower protection’ to its name, but that doesn’t mean anything and whistleblowers should be cautious in assuming anything has changed in VA,” Mr. Hannel wrote in an email to POGO.

One VA whistleblower is optimistic. “I applaud President Trump for not waiting on VA to change, but instead forcing VA to change,” Brandon Coleman told POGO. Mr. Coleman is a VA employee who raised concerns regarding the Phoenix VA Medical Center’s care of suicidal veterans.

Mr. Coleman’s attorney, Tom Devine of the Government Accountability Project (GAP) — a longtime advocate for whistleblowers and their rights — believes the whistleblower community should rally around the new office to try to make it a success. But Mr. Devine said, “as a general rule, GAP is wary of agency whistleblower protection offices.” He said they can be “Trojan horses” that “trap whistleblowers, rather than serve as effective shields for freedom of speech.”

“If it [the new office] operates in good faith, that would be unprecedented,” said Mr. Devine.

“It is for this reason that most federal employees make whistleblower disclosures to their agency’s Inspector General or to the Office of Special Counsel,” POGO wrote. Last year’s law creating a Central Whistleblower Office, which Secretary Shulkin says will be subsumed within the bigger Office of Accountability and Whistleblower Protection, “requires that all whistleblower disclosures and claims of retaliation go through that one office,” POGO wrote. This VA requirement is at odds with other recent whistleblower legislation that allow employees to make disclosures through a wider range of channels.

POGO recommends Congress conduct close oversight of the Central Whistleblower Office as well as the broader Office of Accountability and Whistleblower Protection. And Congress should eliminate the requirement that VA whistleblowers go through this internal channel.

One feature the OAWP has going for it is that it reports directly to the Secretary. According to Mr. Devine, this is essential if any agency whistleblower office is to have a shot at being successful. Another feature Mr. Devine said would improve its effectiveness is if the office had an independent mediation and binding arbitration program. Given that the Merit Systems Protection Board has not historically been a favorable venue for whistleblowers, a mediation program would be a useful alternative that could assist many VA employees with retaliation claims.

Mr. Hannel stressed the need for independence, but prefers an office outside of the VA altogether. “If the President, VA, and Congress truly want to protect whistleblowers, create an Office of Whistleblower Protection within or in concert with the Office of Special Counsel and away from VA leadership,” he wrote.

The timeliness of the new office’s investigations will also be key to making it a reputable place for whistleblowers to turn. “To strike the right balance” between protecting employee rights and disciplining employees who engage in misconduct, “infractions require immediate action to substantiate (or not) and properly address, according to the situation and disciplinary options. No back peddling, no excuses, and no unnecessary delays,” Mr. Hannel wrote.

Mr. Coleman, the VA whistleblower in Arizona, said that the staffing of the office is a critical factor: “Whistleblowers should be included in running this new division. We are the ones who know what it’s like to be sent home, fired, retaliated against by management all for simply exposing the truth.”

“We are a valuable resource within the VA,” Mr. Coleman said.

The greatest challenge for this office, Mr. Devine told POGO, is it will face an environment that has a “deeply ingrained intolerance for whistleblowers.”