New Report Confirms Whistleblower Retaliation is Alive and Well at Department of Veterans Affairs
The Government Accountability Office released a new report in July focused in part on evaluating the Department of Veterans Affairs’ (VA) centralized Office of Accountability and Whistleblower Protections (OAWP). The Office is a newly created entity within the VA responsible for receiving and investigating whistleblowers’ allegations of misconduct. Unfortunately, the report concluded that the VA as a whole is largely failing when it comes to preventing whistleblower retaliation and holding wrongdoers accountable, and that the new Office has achieved little to remedy that failure.
Failing to prevent and punish illegal retaliation against whistleblowers is a big deal. As our community is fond of reminding folks, whistleblowers are our first line of defense against waste, fraud, and abuse—and we mean it. But whistleblowers at the VA are particularly important: Disclosures by VA whistleblowers save patients’ lives by freeing up wasted money that can go toward providing resources and care, eliminating unnecessary barriers to timely and effective medical services, and removing officials who have perpetuated a culture of abuse for decades.
In short: If we care about the wellbeing of our veterans, we must protect VA whistleblowers. According to the GAO’s report, not only is that prioritization not happening under this program, whistleblowers may actually be worse off.
A Long History of Retaliation
Whistleblowers at the VA have been fighting an uphill battle for years. In 2014, POGO worked to publicize the importance of VA whistleblowers by asking for their stories. Within weeks, we received nearly 800 submissions from current and former VA employees and veterans reporting VA corruption in 35 states and the District of Columbia. The overarching theme of those submissions was a fear of speaking out publicly—a fear of reprisal for blowing the whistle.
One of these whistleblowers was a former VA nurse in Appalachia. She was forced out of her job after blowing the whistle on the persistent neglect of veterans with serious injuries in her facility. These veterans told her that they were afraid to speak up for themselves because they were afraid of losing their benefits or of suffering further neglect for doing so. Bravely, the nurse spoke for them but lost her job as a result. She explained to POGO that it was “‘such an upsetting thing for a nurse just to see this blatant neglect occur almost on a daily basis. It was not only overlooked but appeared to be embraced. There’s a culture of bullying employees….it’s just a culture of harassment that goes on if you report wrongdoing.’”
This is just one example of many, evidencing the importance of protecting whistleblowers at the VA and the need for institutionalized safeguards against retaliatory practices when employees speak up about wrongdoing. Unfortunately, this report shows a repeated pattern at the VA of punishing whistleblowers. This is a deterrent for federal employees like the VA nurse from coming forward at all. In fact, according to this report, VA whistleblowers are “10 times more likely…to receive disciplinary action within a year of reporting misconduct [than VA employees who don’t blow the whistle.”
In 2014, we began to see efforts by the VA and later by Congress to address the deluge of horrific stories coming out of the VA showing that patients were dying after languishing for years on never-ending wait lists. The latest iteration of these efforts is the creation of the Office of Accountability and Whistleblower Protections.
Creation of the Office of Accountability and Whistleblower Protections
President Trump created the Office by executive order in April of 2017, and Congress codified it in the Accountability and Whistleblower Protection Act of 2017 last June. Its mission reads:
The Office of Accountability and Whistleblower Protection serves to improve the performance and accountability of VA senior executives and employees through thorough, timely and unbiased investigation of all allegations and concerns. Where these actions are found factually true, the Office will provide recommended actions related to the removal, demotion or suspension based on poor performance and/or misconduct. Additionally, OAWP provides the protection of valued VA whistleblowers against retaliation for their disclosures.
Part of the impetus behind the Office’s creation was a need to shift the internal culture of punishing whistleblowers at the VA in order to hide the misdeeds of higher-ups. For years, this culture fostered corrupt and abusive behavior. But creating an internal office to combat this culture is rarely a good idea because it relies largely on the self-policing of bad actors. As POGO’s Executive Director, Danielle Brian, noted at the time of the Office’s creation: “we have grave concerns and think it’s irresponsible to create a Central Whistleblower Office at the VA without proper independence. By housing this office within the VA, we worry it risks becoming an internal clearinghouse to help agency managers identify and retaliate against whistleblowers.”
To achieve the necessary independence, POGO stressed that the Office needed a Senate-confirmed leader as well as a clear separation from the VA General Counsel’s office to prevent conflicts of interest. Unfortunately, neither of these provisions seem to have been implemented in good faith.
The Office’s recent annual report to Congress did little to subdue our apprehensions about its ability to function as intended. Based on its own reporting, the Office largely failed to discipline higher-ups at the VA, with senior executives making up only 0.1 percent of all disciplinary actions. In the 23 cases where the Office did recommend disciplinary action against senior executives, the agency followed through with the recommended action in less than half of the cases. Instead, the VA continued to disproportionately discipline lower-level employees.
Senator Tammy Duckworth raised concerns about the Office’s track record in a letter she sent earlier this year to then-VA Secretary David Shulkin pointing out that initial data out of the Office “indicates that removal efforts are being targeted on less senior, frontline employees, rather than managers who play a critical role in establishing cultures of accountability that protect whistleblowers.”
Then-Acting VA Secretary Peter O’Rourke claimed that this breakdown is typical in federal agencies, but as members of the House Veteran Affairs Committee pointed out, high turnover among lower ranking employees is disconcerting because it sends a message to the workers’ colleagues that if they stick their necks out and blow the whistle, they will face retribution. Even more concerning, those rank-and-file VA employees still hadn’t been trained in their whistleblower rights when the Office’s report came out.
We are disheartened to see that, even a year after the creation of the Office of Accountability and Whistleblower Retaliation, little has changed.
What the Government Accountability Office Found
The GAO’s July report confirms the whistleblower community’s biggest fears about the Office of Accountability and Whistleblower Protection: Rather than functioning as a safe house for whistleblower disclosures that keeps their source secret, the Office is instead collecting evidence of the disclosures and is exposing whistleblowers to retaliation.
While the office was created to root out misconduct involving senior officials, it is, in many instances, allowing those same officials to make decisions involving allegations of their own misconduct.
Certain revelations from the GAO’s report are particularly demonstrative of dysfunction of the Office and of the VA as a whole when it comes to protecting whistleblowers:
1. Whistleblower retaliation has persisted for many years at the VA, and the report shows that whistleblowers are historically much more likely to face reprisals than their non-whistleblower peers. While this isn’t indicative of behavior during the existence of the Office, it shows a disturbing pattern at the VA, and confirms why a robust, independent system is sorely needed:
- Whistleblowers were 10 times more likely to experience retaliation than their non-whistleblower peers at the VA between 2010 and 2014.
2. Under the Office’s system of investigating allegations of misconduct, employees accused of misconduct are participating in the investigations into their own behavior because the VA does not use adequate oversight measures to make sure this doesn’t happen. This obvious conflict of interest can only lead to fewer whistleblowers coming forward:
- OAWP allows “VA employees, who are the subject of the allegations brought forward by whistle-blowers [sic] to review or participate in investigations, or both, which could make the whistle-blower feel uncomfortable or intimidated.” (p. 55).
- For example, “…an OAWP representative who was also associated with the human-resource office…that oversees the whistle-blower’s [sic] facility, placed the whistle-blower [sic] under oath and questioned her about issues unrelated to the referred allegations." (p. 55).
- “VA does not have oversight measures to ensure that all referred allegations of misconduct are investigated by an entity outside the control of the facility or program office involved in the misconduct, to ensure independence. As a result, GAO found instances where managers investigated themselves for misconduct, presenting a conflict of interest.” (Introductory Summary, p. 2).
- “Our review of…[the Office’s database of adverse employment actions]…identified examples where VA officials did not follow separation of duty requirements.” These require that the decision on whether to take an adverse action against an employee must come from someone higher up than the person who proposed the action. However, “VA officials acted as both the proposing and deciding official in cases involving removals for employees found to have engaged in misconduct. (p. 44).
- “Our review of 29 VA officials found that none received disciplinary action for violating separation-of-duty policy. (p. 45).
3. Senior officials who are engaging in misconduct are not being held accountable for engaging in misconduct:
- “The VA does not consistently ensure that allegations of misconduct involving senior officials were reviewed according to investigative standards and these officials were held accountable” for substantiated misconduct. (p. 31).
- “GAO found that the disciplinary action proposed was not taken for 5 of 17 senior officials with substantiated misconduct.” (Introductory Summary, p. 1).
4. The VA’s own Office of General Counsel is reviewing the Office’s proposed disciplinary actions against senior VA leaders, which is seemingly at odds with the law:
- According to the VA, after an investigation, “The Advisory and Analysis Division [of the Office] then prepares a draft proposed action, which is submitted for legal review to the Office of General Counsel…” (p. 94).
- The Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 “establishes the Office within the VA and requires that the Office be headed by the Assistant Secretary for Accountability and Whistleblower Protection, who will not report to the Office of the General Counsel.” (p. 7).
These findings, read in the best possible light, indicate that the Office is not functioning as intended. Taken at their worst, they show that it is entirely under the thumb of wrongdoers—all on the taxpayer’s dime.
The VA, the President, and Congress have all implemented programs and laws to combat the VA’s culture of protecting bad actors by attempting to streamline their removal. Unfortunately, without proper independence from the agency, these programs can weaken existing civil service protections by funneling whistleblower disclosures through self-policing, internal systems like the Office of Accountability and Whistleblower Protection. As a result, the whistleblower often faces retaliation and the actual bad actor goes unpunished.
As Eric Hannel, a former Republican Congressional staff director, explained to POGO: “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.”
The GAO report makes it clear that the Office is not adequately maintaining independence from the VA—quite the contrary, bad actors are actually investigating and making decisions regarding their own illicit behavior. Without sufficient independence from the VA itself, this Office will be an abject failure if its goals are truly to protect whistleblowers while rooting out corruption. In theory, the Office should be a one-stop shop to eliminate waste, fraud, and abuse in the VA. In reality, it’s making matters worse for veterans and the whistleblowers they rely on.
The problems uncovered by GAO are indicative of a system that is failing to achieve its mission in nearly every conceivable way. POGO hopes that Veterans Affairs will take the GAO’s recommendations to heart and will redouble its efforts to protect whistleblowers.