President Donald Trump after signing the Department of Veterans Affairs Accountability and Whistleblower Protection Act, June 23, 2017. (Photo credit The White House)
On July 10, 2017, the New York Times published an article on something that may seem like a rare event: Congress working in a bipartisan manner to get things done. The article notes that, like few other committees at the moment, Republicans and Democrats on the Veterans’ Affairs Committees in both the House of Representatives and the Senate have been able to work together and show the true meaning of the word “compromise”.
The article describes the relationship between the chairman and ranking member of both Veterans’ Affairs Committees and how they have been able to work together despite their differences. For example, Senators Johnny Isakson (R-GA) and Jon Tester (D-MT), Chairman and Ranking Member of the Senate Veterans’ Affairs Committee, respectively, are quoted as saying that they do their best to put aside their differences and move forward with legislation. It also helps that both parties, according to the article, “remain cautiously confident in the Department of Veterans Affairs secretary, David Shulkin,” whom the Senate approved unanimously.
The Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 was one of the major pieces of legislation the committees helped pass, described in the article as “a long-held priority for both parties.” The bill allows the VA secretary to have more power in the hiring and firing of department workers. For the latter, the bill emphasizes the suspension or termination of employees for misconduct or low performance. It also creates the Office of Accountability and Whistleblower Protection (OAWP), which is supposed to focus on stronger whistleblower protection for VA employees who report misconduct. The head of the office is appointed by the President and confirmed by the Senate. The bill is meant to be one of many reforms that restore trust in the VA. It also seeks to correct the problems that came to light in 2014 amid the scandal over falsified wait times for VA medical appointments.
In May this year, the Project On Government Oversight submitted testimony on this bill to the Senate Veteran’s Affairs Committee, supporting its improvements to whistleblower protections and the creation of the OAWP, addressed under Title I of the bill, which addressed some of the concerns POGO had with the previous office charged with handling VA whistleblowers. However, POGO also raised significant concerns about, and presented recommended fixes for, the bill’s short timeframes in which an employee can respond to notices of removal and file an appeal to the Merit Systems Protection Board (MSPB), under Title II of the legislation. This infringes due process rights and protections for civil servants. In addition, POGO emphasized the importance of extending protections to veterans and contractors who may suffer retaliation.
However, the bill was signed into law with no changes. In June, The Make It Safe Coalition—of which POGO is a member—wrote a letter condemning the bill for continuing to include the Title II language. The letter explained the bill would turn MSPB hearings into “window dressing” which would actually make it more difficult for VA whistleblowers to win their appeals and thus make it easier to fire federal employees. Bipartisanship may have created a promising new whistleblower office, but it will also undercut these efforts with the bill’s Title II that threatens the merit system’s protections and exposes VA employees to retaliation.
This is not the first time this year the civil service has been attacked. In January, the House rules package for the 115th Congress included a provision to revive the Holman Rule, first used in 1876 by Rep. William Steele Holman (D-IN). The rule endured until 1983. It allows members of the House of Representatives to cut salaries and employees on any agency by simply including such language in an appropriations bill.
The rule, set to expire at the end of the year unless lawmakers vote to keep it, causes concern among the watchdog community because it undermines civil service protections and leaves federal employees vulnerable to partisan retaliation. Recently, a Holman Rule amendment was introduced by Rep. Morgan Griffith (R-VA) to cut the Budget Analysis Division of the Congressional Budget Office (CBO), but it was defeated by a vote of 116 to 209. The amendment’s sponsors were accused of pushing the measure to punish the CBO for its damaging analyses of various Republican plans to repeal and replace Obamacare.
Similarly, critics fear Title II of the new VA legislation could be used to politically purge VA employees who now have fewer due process protections.
The VA bill and the OAWP are still relatively new. So new, in fact, that at the time of this writing, no one has been nominated to head the office in a permanent capacity. For now, VA Secretary Shulkin has named an executive director to lead the office until someone is nominated for the position and confirmed by the Senate. However, this interim appointment from the Secretary of the VA undermines the independence that POGO celebrated in the original bill text.
Another recent hire, however, is that of VA whistleblower Brandon Coleman, who will be working with the new accountability office. Coleman was previously an addiction therapist who had spoken up about the treatment that suicidal veterans were receiving at the VA hospital in Phoenix, Arizona. In retaliation, he was placed on administrative leave for more than a year until his recent assignment. He told POGO that the exact nature of his role in the OAWP is still being defined, but it involves communicating with the press and public and acting as a liaison to the whistleblower community.
As an additional accountability measure, Shulkin recently announced that the OAWP website will release a weekly public listing of employees terminated or suspended for misconduct and low performance. It is meant to promote transparency and accountability; however, employee unions and civil society groups, including POGO, have criticized it. For example, it does not include the specific reasons for a VA employee’s termination or suspension, and the bulk of those listed are lower-level employees rather than high-level officials with broad responsibility for the kinds of problems that have plagued the VA in recent years.
Given the previous track record of the VA, Congress should continue working in a bipartisan manner to oversee the work of the OAWP and ensure that it is working to protect whistleblowers and not be used as a management weapon against them. One place to start would be with the appointment and confirmation of a VA Assistant Secretary for Accountability and Whistleblower Protection to head the office. That person must ensure whistleblowers can report wrongdoing without fear of retaliation.
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