DATE: June 1, 2017
TO: Congressional sponsors of S. 1094
FROM: The Make It Safe Coalition
RE: Sponsorship of S. 1094 “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”
The undersigned organizations write to express our dismay at provisions that severely threaten the merit system in S. 1094, the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” Ironically, Title II of the legislation would functionally cancel due process, the foundation for whistleblower protection and all other merit system rights. It is not possible to strengthen whistleblower protection rights on paper, while canceling a fair day in court to defend against retaliation or an intra-agency hearing while encouraging political purges.
We recognize and appreciate the stronger rights proposed in Title I of the legislation. The bill proposes a precedent-setting Assistant Secretary of Whistleblowing, and its Office of Accountability and Whistleblower Protection strengthens President Trump’s Executive Order creating a VA whistleblower office. The legislation properly makes whistleblower protection as a critical element in supervisory performance appraisals. It also requires stepped-up, personal training in whistleblowing law for employees. If the bill ended there, we would be expressing unqualified appreciation.
Unfortunately, Title II creates a Faustian bargain and without modifications to the due process provisions, is not something we can throw the full support of the whistleblower community behind. Title II creates a system to fire employees in two weeks, while canceling intra-agency appeals and turning Merit Systems Protection Board (MSPB) hearings into window dressing. While Board review would still be available, the MSPB would have to approve any decision supported by “substantial evidence,” which means “more than a scintilla.” The bill does not even leave crumbs for Performance Improvement Plans and all other performance-related actions, canceling all civil service rights. Those actions would make it much more difficult than it already is for employees to win when they act on Whistleblower Protection Act rights, or even merely seek justice.
The bottom line is that Title II creates thinly disguised civil service martial law. It cancels pre-existing rights against management abuse of power, whether through whistleblower retaliation, political purge or any other merit system violation. None of our organizations is opposed to “draining the swamp.” But this approach means that we may lose dedicated public servants instead of the alligators.
Marcel Reid, President
Tom Devine, Legal Director
Government Accountability Project
Michael Ostrolenk, President
David Williams, President
Taxpayers Protection Alliance
Elizabeth Hempowicz, Policy Counsel
Project On Government Oversight
Emily Gardner, Worker Health and Safety Advocate