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Whistleblowers at the Department of Veterans Affairs say nearly two years after Congress passed its signature legislation designed to bring more accountability to the organization, a culture of retaliation is still prevalent.
Congress passed the VA Accountability and Whistleblower Protection Act into law back in 2017 with much fanfare. Beyond setting new timelines and disciplinary review procedures for employees and senior executives, the law also codified the creation of a new office within the department. The Office of Accountability and Whistleblower Protection (OAWP) was supposed to give VA the tools to discipline and fire poor-performing employees more quickly — while protecting whistleblowers and their rights.
But according to the three whistleblowers who testified this week before the House Veterans Affairs Committee, little has changed since 2017.
If anything, they said, OAWP adds another layer of complexity to a long and complex whistleblower complaint process.
Katherine Mitchell, a VA internist and specialty care medicine consultant, blew the whistle back in 2014. Her insights helped reveal the wait time scandal at the Phoenix VA hospital several years ago. The department placed her in a new position after those experiences.
“The retaliation never stopped,” Mitchell said at Tuesday’s hearing. “The only difference is that the way the retaliation is occurring has changed. Before, it was making me work unlimited hours without compensation or dropping my performance evaluations. Now, it is basically excluding me from any opportunity I have to oversee patient care and address the problems.”
VA Secretary Robert Wilkie said in a letter addressed to committee leadership the hearing would be too one-sided. He also took issue with the whistleblowers who testified, because they submitted complaints years before VA stood up OAWP back in 2017.
Rep. Chris Pappas (D-N.H.), chairman of the VA Oversight and Investigations Subcommittee, said the department would testify at another hearing on the topic in the near future.
VA insists it’s not using the accountability act to target low-ranking employees
Mitchell and Minu Aghevli, a program coordinator of the opioid treatment program at the VA medical facility in Baltimore, Maryland, said their interactions with the new OAWP have been disappointing.
Aghevli said she was told to schedule imaginary appointments at a fake clinic to mask wait times at the facility. She’s filed complaints with multiple entities, including the Office of Special Counsel.
“I love my job,” she said. “It’s scary to just feel like at any moment I could come into work and something else is going to happen.”
Members of the House VA subcommittee on Tuesday tried to understand where the root causes of these problems originated. Members on both sides of the aisle acknowledged VA’s challenges were systemic and not dependent on the administration in charge.
For Mitchell, the problem starts with leadership, which she described as “malignant” even when she first joined the department back in 1989.
“Leadership people promote people who are like them,” she said. “That’s very common. You have a culture of people who are like-minded. I don’t want to paint all leadership with a broad brush, because I’ve known some very ethical, very good people, supervisors and administrators who are wonderful. The problem is that two types of administrators or leaders in the VA — those who wield power unethically and retaliate and those who wield power ethically but don’t have the power to stop the retaliation.”
VA, like many agencies, has seen high turnover among its top leadership positions. It took OAWP nearly a year before it had a permanent, confirmed assistant secretary to lead the new office.
“A high turnover rate can be troubling for many reasons,” Rebecca Jones, policy counsel for the Project on Government Oversight, told the subcommittee. “One of them is a lack of institutional buy-in at the top about changing the culture of retaliation, ensuring that the people who are leading the agency are determined to make the change.”
Employees at GS-1-6 make up 36.8% of all disciplinary actions at the department, according to VA’s report on its implementation of the accountability act after the first year. GS-7-10 employees made up 13.9 percent of all actions in the wake of the new accountability act, while GS-10-15 made up 12.2 percent.
Senior executives made up 0.1% of all disciplinary actions at VA.
“They’ll identify a major problem, like there’s improper management of a wait list, and what they’ll focus on is the front line staff,” Aghevli said. “All of these front line staff are scheduling improperly. But they’ll fail to look at whether this is being directed in some way, and even if it isn’t one person… is there a culture at that facility that is influencing people to do these things? Over and over again we’re not looking at that as a system. We’re just picking off the people at the very bottom, the low-hanging fruit, and so it keeps happening.”
VA said last year it wasn’t using the new accountability act to disproportionately fire lower-ranking employees over senior managers and executives.
Improvements for OAWP
VA whistleblowers offered a variety of suggestions to improve the functioning of VA’s OAWP.
Mitchell suggested VA develop a standard checklist that OAWP investigators can use to review retaliation and disciplinary cases. The guidance, for example, should prohibit the same VA official from both proposing and deciding a removal or disciplinary action.
More clear guidelines may also help OAWP more quickly resolve complaints and wrap up investigations, which Mitchell said, can drag on more more than a year.
“If you’re talking about a major action where an employee is suffering a risk of termination or demotion or suspension, those actions can occur in a week or two,” she said. “OAWP should have processes in place to be able to mobilize quickly to go in and examine whether or not those personnel actions are appropriate.”
VA’s own whistleblower training needs improvements, many witnesses said.
“There very much needs to be training of OAWP in the whistleblower protection end,” said Tom Devine, legal director for the Government Accountability Project, which represents many whistleblowers. “They don’t seem to be in practice [and] consistently familiar with its provisions. So many of the staff have come from institutions where they spent their entire lives on assignment to conduct what turned out to be retaliatory investigations against whistleblowers. This accumulated a real bias. That doesn’t change with a new location and new job description. They need to get it.”
Devine offered up a more dramatic suggestion.
“They should be an independent watchdog within the agency, but in practice, their decisions are controlled by the Office of General Counsel,” he said. “OAWP needs to be freed.”