[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LEARNING FROM WHISTLEBLOWERS AT THE
DEPARTMENT OF VETERANS AFFAIRS,
PART 2
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, JULY 23, 2019
__________
Serial No. 116-26
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40-855 WASHINGTON : 2022
-----------------------------------------------------------------------------------
COMMITTEE ON VETERANS' AFFAIRS
MARK TAKANO, California, Chairman
JULIA BROWNLEY, California DAVID P. ROE, Tenessee, Ranking
KATHLEEN M. RICE, New York Member
CONOR LAMB, Pennsylvania, Vice- GUS M. BILIRAKIS, Florida
Chairman AMATA COLEMAN RADEWAGEN, American
MIKE LEVIN, California Samoa
MAX ROSE, New York MIKE BOST, Illinois
CHRIS PAPPAS, New Hampshire NEAL P. DUNN, Florida
ELAINE G. LURIA, Virginia JACK BERGMAN, Michigan
SUSIE LEE, Nevada JIM BANKS, Indiana
JOE CUNNINGHAM, South Carolina ANDY BARR, Kentucky
GILBERT RAY CISNEROS, JR., DANIEL MEUSER, Pennsylvania
California STEVE WATKINS, Kansas
COLLIN C. PETERSON, Minnesota CHIP ROY, Texas
GREGORIO KILILI CAMACHO SABLAN, W. GREGORY STEUBE, Florida
Northern Mariana Islands
COLIN Z. ALLRED, Texas
LAUREN UNDERWOOD, Illinois
ANTHONY BRINDISI, New York
Ray Kelley, Democratic Staff Director
Jon Towers, Republican Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
CHRIS PAPPAS, New Hampshire, Chairman
KATHLEEN M. RICE, New York JACK BERGMAN, Michigan, Ranking
MAX ROSE, New York Member
GILBERT RAY CISNEROS, JR., AUMUA AMATA COLEMAN RADEWAGEN,
California American Samoa
COLLIN C. PETERSON, Minnesota MIKE BOST, Illinois
CHIP ROY, Texas
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
----------
TUESDAY, JULY 23, 2019
Page
OPENING STATEMENTS
Honorable Chris Pappas, Chairman................................. 1
Honorable Jack Bergman, Ranking Member........................... 3
WITNESSES
Dr. Tamara Bonzanto, Assistant Secretary for Accountability and
Whistleblower Protection, Department of Veterans Affairs....... 4
Prepared Statement........................................... 29
Michael Missal, Inspector General, Department of Veterans Affairs 6
Prepared Statement........................................... 30
Henry Kerner, Special Counsel, Office of Special Counsel......... 7
Prepared Statement........................................... 33
Mr. Tristan Leavitt, General Counsel/Acting Chief Executive and
Administrative Officer, Merit Systems Protection Board......... 9
Prepared Statement........................................... 36
LEARNING FROM WHISTLEBLOWERS AT THE
DEPARTMENT OF VETERANS AFFAIRS,
PART 2
----------
TUESDAY, JULY 23, 2019
U.S. House of Representatives
Subcommittee on Oversight an Investigations
Committee on Veterans' Affairs
Washington, D.C.
The Subcommittee met, pursuant to notice, at 5:02 p.m., in
Room HVC-210, Capitol Visitor Center, Hon. Chris Pappas
[Chairman of the Subcommittee] presiding.
Present: Representatives Pappas, Rice, Rose, Cisneros,
Peterson, Bergman, Radewagen, and Bost.
OPENING STATEMENT OF CHRIS PAPPAS, CHAIRMAN
Mr. Pappas. The hearing will come to order.
Without objection, the chair is authorized to declare a
recess at any time.
Today is the third panel Today's hearing of the Oversight
and Investigation Subcommittee hearing is entitled ``Learning
From VA Whistleblowers.'' Our Committee is constantly exploring
ways to improve the accessibility, quality, and safety of
veterans' health care, create a more timely and accurate review
of benefit applications, and reduce instances of waste, fraud,
and abuse in the department.
On June 25th, the Subcommittee began this hearing to
discuss the importance of VA whistleblowers. We heard testimony
from people inside the VA who raised major questions and
concerns about critical problems that affect the health and
well-being of veterans. These witnesses were willing to blow
the whistle, even when it risked their livelihood and their
careers.
Unfortunately, we learned that the VA continues to struggle
with the culture of retaliation against whistleblowers. In too
many instances, VA leadership and supervisors have turned a
blind eye to those in VA's workforce that have pointed out
serious problems or attempted to expose bad actors who have
abused their positions or broken laws, and, even worse, the
whistleblowers are often the target of active retaliation.
One striking example came from Dr. Katherine Mitchell's
testimony. In 2014, she was one of a group of people working at
the Phoenix VA medical center that exposed the existence of a
secret waiting list of veterans in need of medical care.
Instead of addressing this issue, the Phoenix VA leadership
actively worked to hide the exorbitant wait times. It turned
out that such practices were occurring at VA facilities
nationwide. The coverup was extensive and deliberate, and the
health and well-being of veterans was put at risk.
Congress responded to the allegations with hearings that
confirmed the whistleblowers' revelations of long and difficult
wait times for appointments. Of course, the VA still has a lot
of work to do to ensure that veterans get access to health care
in a timely and transparent manner. In fact, the Committee on
Veterans' Affairs will hold a hearing on this very topic
tomorrow.
The Phoenix VA employees, including Dr. Mitchell, who blew
the whistle in 2014, raised incredibly important concerns
regarding veterans' health care. Instead of being thanked for
raising these issues, however, they have experienced
retaliation. Their jobs were threatened. Unfortunately, their
experience is not uncommon.
Our two other witnesses during the June hearing also
testified about retaliation they are experiencing, all while
continuing to work at the VA. And they have sought protection
as whistleblowers. The June witnesses described many
shortcomings within the VA for protecting the rights of
whistleblowers. Each of these three individuals who testified
described ongoing retaliation that they were experiencing,
despite current laws and institutions designed for their
protection as they try to speak truth to power. For example,
Dr. Mitchell testified that retaliation is ongoing, even after
she secured a settlement agreement with the VA to continue her
work serving veterans. Clearly, the VA must do better.
Make no mistake. This Committee believes the importance of
having people who are brave enough to stand up and blow the
whistle on the missteps and misdeeds within the Department.
These are people who are trying to do the best they can for
veterans, and we should be committed to their protection.
At the beginning of the June 25th hearing, Ranking Member
Bergman requested that we invite before this Subcommittee. I
agree that the Government agency perspective is essential. In
fact, the Subcommittee will hold an additional hearing with
Government witnesses in September. It has been 2 years since
Congress and VA established the Office of Accountability and
Whistleblower Protection. Our September hearing will focus on
the results of an inspector general's investigation of this
particular office.
Today's panel is an early opportunity to hear from VA's
Office of Accountability and Whistleblower Protection. In
addition, the top officials from the Office of Inspector
General, the Office of Special Counsel, and the Merit Systems
Protection Board are present. Each represents a key agency
charged with protecting whistleblowers. I have also invited two
of the whistleblower advocates who appeared on the June 25th
panel to ensure a strong and important dialogue with today's
government officials.
As I have said before, and it needs to be repeated again,
whistleblowers are an important source of information, and they
should not be ignored. Their rights must be protected so that
future whistleblowers will have confidence that their stories
will be heard and assurance that their allegations will be
investigated without reprisal. I look forward to the testimony
of today's witnesses.
With that, I would like to recognize Ranking Member Bergman
for 5 minutes for opening remarks.
OPENING STATEMENT OF JACK BERGMAN, RANKING MEMBER
Mr. Bergman. Thank you, Mr. Chairman.
I appreciate your holding the hearing open to allow us to
employees receive testimony from government witnesses who
administer the whistleblower programs. Scheduling a hearing
this quickly is difficult, and I appreciate you following
through on your commitment to hold this hearing as soon as
possible.
The first witness panel recounted case-specific complaints,
but we had little discussion about the whistleblower process.
The discussion bounced back and forth between complaints with
VA's Office of Accountability and Whistleblower Protection, or
OAWP; the Office of Special Counsel, or OSC; and the VA
inspector general. Witnesses also raised concerns that the
current lack of Merit Systems Protection Board members clouded
its operations. It is critical that we understand the division
of labor and the whistleblower protection system if we are
going to diagnose the problems and craft appropriate solutions.
Let me give you an analogy in my pilot background. There
are four forces that affect an airplane's ability to fly:
thrust, weight, drag, and lift. When a problem arises, that
pilot must understand which force is being affected because the
response will differ depending on the nature of the problem.
The whistleblower process is no different. The remedy for a
disclosure problem may be vastly different than a retaliation
problem. I want to make sure that we have the right framework
and identify the appropriate accountable parties to address
whistleblower concerns.
Behind me is a diagram of what I understand to be the
whistleblower reporting process for VA employees. When we
discuss whistleblowers, we must distinguish disclosures and
retaliation because when an employee is alleging--what an
employee is alleging and where they go for help depends on
whether they are making a disclosure or a retaliation claim.
The disclosure is the initial blowing of the whistle. It is
when an employee brings the attention to the $600 hammer,
secret wait lists, or potential criminal activity.
Retaliation, on the other hand, is what happens after a
whistleblower makes a disclosure and experiences an adverse
impact on their work or career because of their disclosure.
Retaliation may occur when management proposes to remove the
employee or move them to an isolated office without heat or air
conditioning. It might manifest in the form of multiple
investigations or a threat.
A whistleblower can make a disclosure to their supervisor,
OAWP, the VAIG, or the OSC. In fact, a whistleblower may make
the same disclosure to all of these offices, and it is unclear
what type of communication exists between the parallel routes
for investigation.
Similarly, a whistleblower may raise a retaliation
complaint to OAWP, OSC, or the MSPB. Again, a whistleblower can
raise his or her claim in multiple forums, and it could lead to
multiple investigations.
Mr. Dettbarn described the process of seeking whistleblower
assistance as confounding, and the other witnesses echoed that
sentiment. In the Marines, we implore the KISS principle, just
keep it simple.
The whistleblower process depicted in this diagram runs
afoul of that principle. This is another example of Bureaucracy
101, a government program with multiple governing offices and
diffused responsibility which, together, create confusion and a
lack of accountability.
Our witnesses are undoubtedly the experts on what works and
what needs to be improved in the whistleblower protection
system. I would like each of you to explain your office's role
as it relates to disclosure or a retaliation claim.
A common grievance is the lack of communication between the
investigating officer and the whistleblower following a
disclosure or retaliation claim. I would like the witnesses to
explain what an employee should expect from the investigator in
your office, what barriers exist to timely and thorough
communication, and what steps you are taking to improve this
communication.
Mr. Chairman, before I yield, I want to reiterate that
whistleblowers provide an invaluable service to our country.
They must believe that the whistleblowing systems take their
concerns seriously and investigates their complaints
appropriately and efficiently. More importantly, or most
importantly, whistleblowers must feel safe to make a
disclosure.
It is evident that the witnesses on the first panel do not
have faith in the system, but I was surprised to learn in the
written testimony submitted for today that, in fiscal year
2018, the VAIG received 35,000 hotline complaints, that
whistleblowers contacted OAWP 1,965 times, and the OSC received
roughly 2,100 VA-related disclosure and retaliation complaints.
This data suggests that many employees are not afraid to raise
concerns, but this is not cause to celebrate just yet because,
as the prior testimony made clear, problems remain, and there
is a lack of faith by many in the system.
I hope that, with a multifaceted understanding of the
process, we can identify the root causes of the problems and
make a whistleblower system that works better for everyone.
Again, Mr. Chairman, I appreciate your reconvening this
important hearing.
I yield back.
Mr. Pappas. Well, thank you, Ranking Member Bergman. I very
much appreciate your recommendation to hold this session today.
Appearing before us today are four witnesses selected by
Ranking Member Bergman to offer testimony, and I would like to
recognize them, first, starting with Dr. Tamara Bonzanto. She
is the Assistant Secretary for the Office of Accountability and
Whistleblower Protection.
The Subcommittee thanks you for appearing today, Dr.
Bonzanto. And you have 5 minutes for your testimony.
STATEMENT OF TAMARA BONZANTO
Ms. Bonzanto. Chairman Pappas, Ranking Member Bergman, and
Members of the Subcommittee, thank you for the opportunity to
testify today regarding whistleblower protection at the
Department of Veterans Affairs.
Protecting whistleblowers from retaliation is a priority
for the VA and the Office of Accountability. To protect
whistleblowers, OAWP directly investigates all whistleblower
retaliation allegations made by employees and applicants for
employments against VA supervisors. This mitigates the
possibility that whistleblowers may face retaliation for making
a lawful disclosure.
Since my confirmation as the first Assistant Secretary,
OAWP has engaged with other Federal agencies, including the
Office of Special Counsel, the Department of Defense, the
Department of Justice, the Department of Labor, and the
Department of Homeland Security, to obtain best practices to
investigate disclosures and protect whistleblowers.
OAWP has also developed a process to regularly update
whistleblowers who make a disclosure to OAWP about the status
of their investigation into the allegations. The Secretary and
I recognized the need for improvements to whistleblower
protection within the VA. OAWP is actively working to implement
several initiatives that will better protect whistleblowers,
and I appreciate the opportunity today to address a few of
them.
We are currently working on standardizing investigator
training to ensure that all investigators understand the law,
including whistleblower protections, and can apply it in the
investigations consistently. We are finalizing written policy
and how OAWP investigates, the disclosures it receives. The
policy is undergoing concurrence within VA, and I anticipate it
will be issued before October 1st, 2019. We are also engaged
and collaborating with VA's Office of Inspector General and OSC
to finalize training for all VA employees as required by the
Accountability Act. The training addresses methods for making a
whistleblower disclosure, prohibitions against taking action
against an employee for making a lawful disclosure, and
penalties for whistleblower retaliation. The training should be
available later in the fall.
In addition to continuously improving whistleblower
protection, OAWP is actively working on complying with other
requirements, also authorizing statute, including standing up a
division to fulfill our requirement to record, track, review,
and confirm VA's implementation of recommendations from audits
and investigations conducted by the Government Accountability
Office, the Office of Inspector General, VA's Office of Medical
Inspector, and the Office of Special Counsel.
Since my appointment, I have met with several internal and
external stakeholders, including VA's HR staff, supervisors, VA
leaders, Veterans service organizations, and nonprofits, such
as Whistleblowers of America. I value the input I receive and
look forward to continuing to discuss ways to improve
whistleblower protection with all stakeholders.
As a Veteran, a registered nurse, former investigator on
this Subcommittee, and now the Assistant Secretary for OAWP, I
understand that whistleblowers have a critical role in stopping
misconduct within the organization. The Secretary and I value
all VA employees and whistleblowers and their commitment to
improving care and services for our Veterans. I want the VA to
be a place where an employee can trust that his or her
management will take allegations of retaliation or wrongdoing
seriously, encourage staff to raise concerns and not retaliate
against staff who raise those concerns.
Mr. Chairman, we look forward to working with this
Committee and our internal and external stakeholders to
identify opportunities and best practices to enhance VA's
ability to protect whistleblowers.
This concludes my testimony, and I am prepared to respond
to any questions you may have.
[The prepared statement of Tamara Bonzanto appears in the
Appendix]
Mr. Pappas. Thank you very much, Dr. Bonzanto.
I would now like to recognize the Inspector General at the
Department of Veterans Affairs, Mr. Michael Missal.
STATEMENT OF MICHAEL MISSAL
Mr. Missal. Chairman Pappas, Ranking Member Bergman, and
Members of the Subcommittee, I appreciate the opportunity to
discuss the importance of whistleblowers to the Office of
Inspector General. We treat all complainants as whistleblowers.
That is, we provide the same protections, respond with respect,
carefully evaluate their concerns, and safeguard
confidentiality. The OIG relies heavily on allegations,
complaints, and information from VA employees, veterans, and
their families, Congress, and the public when deciding where to
focus our resources. There are countless examples of how
whistleblowers and other complainants have driven change, not
only for the matter under review but frequently at the system's
level through changes in policies, practices, and personnel.
An individual's decision to bring allegations forward
should not have to be weighed against possible adverse actions.
The Whistleblower Protection Act prohibits reprisal against
public employees, former employees, or applicants for
employment for reporting a violation of law, rule, or
regulation. That prohibition extends to reports of gross
mismanagement, a waste of funds, abuse of authority, or the
substantial and specific danger to public health or safety.
The OIG operates a hotline that is staffed by a dedicated
team to receive whistleblower complaints and other information.
Our hotline received over 35,000 contacts in fiscal year 2018
and over 15,000 contacts for the first 6 months of fiscal year
2019. Every contact is reviewed, processed, and acknowledged by
an analyst upon receipt. We receive information via telephone,
fax, regular mail, and through a web submission form on our
website. In addition, there are also posters in VA facilities
on how to contact the OIG. As a result of our site visits and
other engagements with stakeholders, OIG staff may also be
contacted by individuals directly with information or
allegations of wrongdoing.
The OIG interacts with other oversight entities to ensure
that all available resources and protections are available to
complainants. There are many agencies that complainants can go
to for redress.
The OIG's website includes frequently asked questions
related to hotline inquiries that outline the types of
complaints that are addressed by the OIG and other offices. It
also provides contact information for those entities. This
information is further provided to individuals who call or
write the OIG hotline. Although the OIG advises individuals
contacting our hotline how to reach many agencies with the
authority to provide relief, we have formalized the exchange of
information, particularly for allegations of retaliation. The
OIG directs those complainants to the VA Office of
Accountability and Whistleblower Protection and to the Office
of Special Counsel.
As part of our continuous efforts to improve our responses
and further our relationship with whistleblowers, I will be
delivering the keynote address at the annual Hotline Worldwide
Outreach conference, which honors whistleblowers on National
Whistleblower Appreciation Day this July 30th. This conference,
sponsored by the Department of Defense OIG, analyzes best
practices, discussing lessons learned, and provides examples of
the challenges facing the hotline oversight community.
In addition, we recognize that some VA employees and
contractors may be confused about when it is appropriate to
contact the OIG about fraud, waste, and abuse in VA's programs
and operations. To that end, we have requested that VA share
with all employees an email on National Whistleblower
Appreciation Day that has information on how and when to
contact the OIG. We are also working with VA to offer more
formal training on the OIG and the various avenues for redress
available to those with complaints.
The OIG values whistleblowers and the information they
provide as we explore areas for potential oversight of VA. It
is incumbent upon VA stakeholders to protect whistleblowers
from retaliation and foster an environment where no one fears
the consequences of reporting problems or ideas for potential
improvement.
I encourage all whistleblowers to contact us with their
concerns, and we will treat them with respect, dignity, and in
confidence to the greatest extent possible.
Mr. Chairman, this concludes my statement. I would be happy
to answer any questions that you or other Members of the
Subcommittee may have.
[The prepared statement of Michael Missal appears in the
Appendix]
Mr. Pappas. Thank you, Mr. Missal.
I will now recognize our third witness, Mr. Henry Kerner.
He is the special counsel.
Mr. Kerner, you are recognized for 5 minutes.
STATEMENT OF HENRY KERNER
Mr. Kerner. Thank you, Mr. Chairman.
Good evening, Chairman Pappas, Ranking Member Bergman,
esteemed Members of the Committee. Thank you for holding this
important hearing.
OSC is deeply committed to veterans, and I am honored to be
here to discuss the ways in which OSC can assist the VA in
providing the best possible service to veterans.
Whistleblowers are vital to ensuring that problems within
an organization are identified and fixed. OSC's contribution in
this process is twofold. First, OSC provides a safe channel for
VA employees, applicants for employment, and former employees
to make disclosures of wrongdoing. OSC has the authority to
demand a full investigation of any disclosures that warrant
one.
Second, OSC works to ensure that VA whistleblowers do not
face retaliation. We seek corrective and disciplinary action
where we can establish retaliation, and we work with VA
leadership to train VA management employees on prohibited
personnel practices. We are committed to helping the VA by
ensuring that those patriotic employees who have devoted their
professional lives to serving veterans, some being veterans
themselves, can do their jobs without fear of reprisal.
Like you, I watched with significant concern as brave
whistleblowers came forward at your hearing last month to
describe their ordeals at the hands of VA management. I have
submitted a longer statement, laying out OSC's processes and
procedures in detail, but I thought I would focus my brief oral
remarks on chronicling some of the efforts I have undertaken in
support of our veterans and whistleblowers.
Our commitment to whistleblowers is manifested in our
external outreach to VA leadership and through internal process
enhancements. I met with the leadership of the VA as soon as I
became the head of OSC, first with then-Secretary Shulkin in
November 2017 and later with Secretary Wilkie in August 2018, a
short time after his confirmation. I have also had several
constructive discussions with the general counsel and now
Acting Deputy Secretary, Mr. Jim Byrne, who is also an OSC
alumnus, and with Dr. Bonzanto at OAWP. I have also met Mr.
Missal.
In all these meetings, I explained my fierce commitment to
supporting whistleblowers and preventing retaliation. I found
each and every one of these VA leaders supportive. While it is
clear that more needs to be done to stem whistleblower
reprisals at the VA, I take these leaders at their word and
count on them to assist us by improving the culture at their
Department.
Internally, the cornerstone of my leadership at OSC
involves what I call old-style customer service. That means
providing whistleblowers accurate information as quickly as
possible, even or perhaps especially if it turns out we are
unable to assist them. I am keenly aware of the criticism that
OSC can take too long to process cases, which is why one of my
very first managerial decisions was the creation of an
efficiency and effectiveness working group. Following its
recommendations, I undertook a major reorganization of OSC by
merging two of our units into one.
As a result of these new internal processes, OSC has been
much more efficient at assigning cases to attorneys and closing
casing where OSC may not have jurisdiction. OSC staff attorneys
are forwarding me emails from complainants grateful to have
received introductory email within the first week of filing
with us.
Of course, we still face a nearly 2,600-case backlog and it
will come at no surprise to you to learn that we do need more
funding to be able to reduce this backlog and provide faster
processing times to whistleblowers, but despite this backlog,
we strive to be as responsive as possible:
OSC is part of a mosaic of whistleblower resources
available to VA employees, which includes the Office of
Accountability and Whistleblower Protection, OAWP; the VA
inspector general; and the MSPB. As an independent agency, OSC
offers a distinct advantage and delivers benefits that only we
can provide. Part of that advantage lies in the world of
disclosing wrongdoing where the whistleblowers are afforded the
opportunity to directly participate in OSC's assessment of the
agency's investigation of the allegations by providing comments
to OSC, and those comments and the report itself are then made
public. This is a feature unique to OSC, and whistleblower
comments are crucial to my final evaluation of the sufficiency
and reasonableness of the agency's investigation.
On the retaliation side, OSC offers unique enforcement
authority with our ability to litigate corrective and
disciplinary actions before the MSPB, taking the decision of
whether to correct a retaliation out of the hands of agency
management. Together, these OSC-specific features allow OSC to
stand out in the field of whistleblower- related entities.
Thank you for holding these hearings. I look forward to
answering your questions.
[The prepared statement of Henry Kerner appears in the
Appendix]
Mr. Pappas. Thank you, Mr. Kerner.
Next, I would like to recognize our fourth witness, Mr.
Tristan Leavitt. He is the general counsel of the Merit Systems
Protection Board. Mr. Leavitt is the most senior official
currently serving the board as Acting Chief Executive and
Administrative Officer.
Mr. Leavitt, you are recognized for 5 minutes.
STATEMENT OF TRISTAN LEAVITT
Mr. Leavitt. Good evening, Chairman Pappas, Ranking Member
Bergman, and Members of the Subcommittee.
My name is Tristan Leavitt, and I am the general counsel of
the Merit Systems Protection Board. Because there are no
Senate-confirmed members of the board, I am also serving as the
Acting Chief Executive and Administrative Officer of the
agency, as the Chairman said.
Thank you very much for this opportunity to testify. As
requested, my testimony will focus broadly on the process by
which whistleblower cases are brought before the MSPB and
adjudicated.
This years happens to mark the 40th year of the MSPB
opening its doors following the passage of the Civil Service
Reform Act of 1978. This law was the first statute prohibiting
retaliation for employees of the Federal Government. It opened
with a series of findings, stating: It is the policy of the
United States that Merit System principles should be expressly
stated to furnish guidance to Federal agencies, and prohibited
personnel practices should be statutorily defined to enable
Federal employees to avoid conduct which undermines the Merit
System principles and the integrity of the merit system.
(sic) in The Civil Service Reform Act explicitly recognized
the value of whistleblowers. The ninth Merit System principle
states employees should be protected against reprisal for
lawful disclosures.
The MSPB was established to fill an adjudicatory role that
had previously been filled by the Civil Service Commission. Its
role in whistleblower cases is to provide a full and fair
opportunity for both parties to develop a record on the issues
and then to hear and decide the matters appealed based on the
evidence submitted and in accordance with applicable statutes
and case law.
As someone who previously received many allegations of
Executive Branch whistleblower retaliation when I worked on
Capitol Hill, I recognized that this mission as established by
Congress is critical in helping distinguish which reprisal
claims are meritorious.
The prohibited personnel practices related to retaliation
prohibit reprisal based on different types of protected
activity. Under the statute, in order to receive corrective
action in a whistleblower retaliation claim, the appellant must
demonstrate that he or she made a protected disclosure, the
agency has taken or threatened to take a personnel action
against him or her, and his or her protected disclosure was a
contributing factor in the personnel action.
Even after a finding that a protected disclosure was a
contributing factor in the personnel action, corrective action
is not granted under the law if the agency demonstrates by
clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure.
The MSPB is the forum before which OSC litigates if they
believe a prohibited personnel practice like whistleblower
retaliation occurred. Outside of cases brought by OSC, the MSPB
hears two types of whistleblower cases. The first type of case
is called an otherwise appealable action. This involves an
adverse personnel action that is directly appealable to the
board, such as a removal, reduction in grade or pay, or
suspense of more than 14 days. In such as an appeal, both the
appealable matter and the claim of reprisal for whistleblowing
will be reviewed by the MSPB.
The claim of whistleblower retaliation is termed an
affirmative defense. That is, if the agency proves that it has
met the evidentiary standard for taking the action, the
appellant may attempt to prove that the agency nevertheless
took the action in reprisal for his or her protected
whistleblowing activity.
The second type of whistleblower case is those cases in
which the individual has filed a complaint with OSC but OSC has
not sought corrective action on the individual's behalf. This
is called an Individual Right of Action, or IRA, appeal. Most
of those cases surround personnel actions that are not directly
appealable to the board, for example, the suspension under 14
days or a reassignment with no reduction in pay or grade. In
such circumstances, the appellant is required to exhaust the
administrative remedy of first filing a complaint with OSC. In
an IRA appeal, the board will not decide any aspect of the
challenged personnel action other than its connection with the
claim of reprisal for whistleblowing.
In both types of cases, an administrative judge may grant a
stay of the personnel action at issue under appropriate
circumstances. Similarly, OSC may under appropriate
circumstances may request that any member of the board order a
stay. Needless to say, this authority has been significantly
complicated by the lack of any current sitting board members.
That said, despite the lack of a board quorum since January
2017, the 60 or so administrative judges at the MSPB continue
to hear and adjudicate cases. Of the 5,447 cases administrative
judges decided in fiscal year 2018, approximately one fifth
were from VA employees. The MSPB has decided an average about
180 IRA claims from VA employees for each of the past 3 fiscal
years and is on track to decide approximately the same number
in fiscal year 2019.
In closing, one general trend I do want to note that is not
specific to the VA is the increasing complexity of both
whistleblower complaints and their adjudication. It is
increasingly rare to see a case in which the appellant asserts
that he or she made a single disclosure in retaliation for
which the agency allegedly just took one personnel action. As
OSC can attest, the typical case often involves multiple
allegations of several instances of alleged whistleblowing and
several alleged retaliatory personnel actions.
Because of the multipart test for jurisdiction over and
proof of the claims must be applied to each protected
disclosure, whistleblower appeals are often difficult, and time
consuming to hear and decide. Nevertheless, I believe the MSPB
understands that Congress, the executive branch, and the
American public are counting on it to be the front lines of
sorting through these issues. Accordingly, I know the MSPB
aspires to give full and fair consideration to each appeal in
accordance with applicable statutes and case law.
Again, thank you for the opportunity to appear before you.
I am happy to answer any questions you may have.
[The prepared statement of Tristan Leavitt appears in the
Appendix]
Mr. Pappas. Thank you very much, Mr. Leavitt.
We do have to additional witnesses on the panel today. Mr.
Tom Devine, he is the Legal Director of the Government
Accountability Project. Also, we have Ms. Jacqueline Garrick.
She is the founder of Whistleblowers of America. They both
offered testimony at our June 25th session on the earlier
panel, and we brought them back here to allow a more full
discussion today, but since they already gave testimony at that
time, they won't give additional testimony today.
With that, I want to thank each of our witnesses for their
testimony. We will now begin the questioning portion of this
hearing, and I will begin by recognizing myself for 5 minutes
of questioning.
Dr. Bonzanto, if I could start with you, I appreciate your
comments here today, and I think it was made very clear to us
by some of the witnesses we heard from earlier, by folks who
have reached out to my office, that we have a culture problem
at the VA, and I believe you recognized this during the
nomination process.
After our hearing last month, we heard from whistleblowers
about retaliation that is ongoing. It's clear to me that there
still needs to be culture change underway at the VA. You are 6
months into your job. I am wondering how you can assess that
transition that you said needed to happen and how you will
continue to address that as you move forward.
Ms. Bonzanto. Thank you so much for your question.
I do have to say, coming from the Subcommittee as an
investigator and now being on the other side of VA, there has
definitely been a change in the culture where there is more
support from leadership about engaging staff and having
conversations regarding retaliation or regarding the importance
of engaging staff in addressing concerns.
For the first 6 months I have been there, I have seen
Secretary Wilkie lead this in conversations with leadership,
the importance of customer service, the importance of
engaging--we engage our Veterans and we listen to our Veterans
but also engaging our staff and listening to them and the
internal customer service, breaking the silos and having
conversations across the administration to improve staff
engagement, and I think that is definitely a positive thing.
I do have to say, when I came onboard, too, the Partnership
for Public Services, which assesses best places to work in
Federal Government, from 2017 to 2018, VA moved from the bottom
third best places to work in government to the top third. I
think that is a positive sign from 2017 to 2018. I think that
is a good sign we are heading in the right direction. Now,
there is room for improvement, and I admit to that, and I think
the Office of Accountability is a part of that change in
culture as engaging with stakeholders to improve our processes.
Mr. Pappas. Well, thank you for that.
I am wondering if I could ask the other government
witnesses who are here the same question. How would you assess
the culture that exists at the VA in terms of being hospitable
to whistleblowers? What needs to be done? What steps need to be
taken by the VA to ensure that whistleblowers are listened to,
that they are protected?
Mr. Kerner. Sure, I will take a stab at that.
I think it is very important that it obviously starts at
the top. We need good leadership. I think when you have good
leadership with people--as I indicated, I have met with Dr.
Bonzanto. I have also met with the GC and, of course, the
Secretary. I have their commitment that they are committed to
trying to make--to improve the culture. I take them at their
word.
We at OSC have a very extensive relationship with the VA.
The VA has the most cases with us. We obviously have a lot of
communication with them. It starts at the head, but also my
team meets with--we have monthly meetings with them. We also
have bimonthly meetings on the 714 process, which involves
discipline.
In addition to leadership, you also have to have education.
You have to have people know what the whistleblower laws are.
Obviously, once you have the commitment, to then abide by the
laws. Then finally you also need accountable. You have to have
discipline. You have to have accountability. This is where OSC
comes in as well, to try to assist with this culture change at
the VA.
Mr. Missal. It certainly takes time to change culture. I
think that culture was in place for a number of years. A little
more than a year ago, we were dealing with the Office of
Accountability and Whistleblower Protection by fighting with
them about access to documents. Certainly, we have come a long
way from that time. I think with Dr. Bonzanto's leadership,
they are headed in the right direction. It is going to take
time. With whistleblowers, they have to prove to them that it
is a place where they feel comfortable coming forward and there
would not be adverse actions against them.
Mr. Leavitt. I would just add, along with IG Missal, it
does take time and in the same way that culture can be really
nebulous to define, right, looking at an agency, it can also be
very difficult to change. There are a lot of layers in the VA,
right. You know, my experience from on the Hill was when you
had a culture problem at a place, it took a very long time, a
sustained effort, along with just commitment from individuals,
but to help people really have the confidence that things can
work out for the best.
Mr. Pappas. Well, thank you.
Dr. Bonzanto, you know, I am specifically concerned about
whistleblower protection. That is a charge of your office. I
understand that new policies are underway, and you have alluded
to those. I just want to get some higher degree of confidence
today that the steps are underway for you to improve the
protection of these individuals who are so valuable to the
process.
Could you highlight those steps again for us to make sure
that we are going to have greater confidence coming out of this
hearing that things are headed in the right direction?
M. Bonzanto. Of course, sir. I do have to say one of the
things I was listening through in the hearings and also
engaging with stakeholders, some of the things that I have
learned in our process and meeting with other Departments
within the executive branch is to improve anonymity and
communication with whistleblowers' rights so they understand
where they are in the process. That customer service, like Mr.
Kerner said, that is that soft skill. Understand that this is--
understand that there might be a fear of retaliation and giving
them confidence in the system and understanding that they're
putting their jobs on the line, coming forward, and that is
something we are working on improving internally to OAWP.
The other thing is empathy, empathizing with whistleblower
and understanding their perspective, and that is something that
those skills have to be developed with my staff, and I am
working on that.
As I am working on rolling out these policies, it is also
improving training with my staff to understand the importance
of this and engaging with leadership throughout the VA, and
taking this from the top, you know, and working with the
Secretary to improve communication and engage the staff. The
importance of staff engagement, I think, is where we are at.
You have my commitment to that, and that is something that
I will continue to have these conversations about.
Mr. Pappas. Well, thank you. I appreciate your response.
I am not satisfied with where things stand today, but I
look forward to continuing to work with you on this and
certainly others will have questions as well.
With that, I would like to turn it over to the Ranking
Member, General Bergman, for 5 minutes of questioning.
Ms. Bonzanto. Thank you, Mr. Chairman.
As we put up our chart here on the, you know, on the front
end, it does violate the KISS principle a little bit from the
confusing of the most important people I think to understand
that how it works are the people who would be your
whistleblowers. Whether they understand--they may not
understand on the front end how protected they are, but if they
have confidence, and they can see how the system is designed to
work for them initially, that will build their confidence to
come forward.
Having said that, communications being key, now this is Dr.
Bonzanto and Mr. Missal and Mr. Kerner. I would like a quick
response from each of you on the following.
One of the major grievances we hear is that whistleblowers
believe that organizations investigating their disclosures do
not communicate interoffice, if you will, effectively. What
level of communication should a whistleblower expect from your
offices and what barriers exist to meeting the whistleblowers'
expectations today with respect to that communication?
Ms. Bonzanto. Sir, I can tell you a barrier that exists in
my office is that I can't disclose who the individuals are to
the OIG or the OSC without their permission. If they choose not
to, that makes it difficult. If they already reported that they
shared information with anyone of these entities, that makes it
very complicated. We continue investigating, but we might be
investigating the same thing without knowing.
Mr. Missal. When a complainant contacts our office, their
contact is acknowledged. If they do it through a web
submission, a fax, other than a phone call, we send out an
acknowledgment that we got it. We also then while we are--and
if the case is accepted, we let them know that the case has
been accepted. At that point forward until we are done, due to
confidentiality and other reasons, it is really difficult to
give an update on where we are, but when the case is closed,
meaning either we don't have an allegation or we have finding,
we will publish a report. The complainant will then be able to
see the results of their complaint.
Mr. Kerner. When I talked about the customer service at
OSC, what we are basically talking about is three pillars. One
is we want to give accurate information in a timely manner, in
a polite way. It is really important that we provide that
customer service to people. When we get contacted, we try to
get to people as soon as possible.
We have under the statute, for example, on what you have
described as the retaliation section, we have 15 days to get
back to people that file with us. We try to do it under 5 days
to make sure that we get back to them right away, that we tell
them that we have their case, that they have an assigned
investigator or attorney who they can contact to make sure that
they are heard, that we get to their cases with some dispatch,
and that we handle the cases in a timely manner.
When you ask about barriers, we have not insufficient staff
for the cases we have. We have 6,000 new filings roughly every
year. We have a small office of over about 140 full-time
employees including some in field offices. The barrier is we
try to get to their case as soon as possible, but sometimes we
just have a lag and a backlog that takes a while to get to.
Mr. Bergman. Okay. Thank you.
Dr. Bonzanto, OAWP seems to perform functions that are
similar to those of OIG and OSC. To what extent can OAWP create
a synergy among the organizations in order to best address the
whistleblower cases that arise?
Ms. Bonzanto. one of the things that is different with the
OAWP is that we are within the Department. I report directly to
the Secretary. Part of the law requires us to review, receive,
track, and confirm implementation of recommendations from the
investigative entities. That is something that is unique.
It is also within the Department we have one area where we
are receiving disclosures. It is getting the data where we can
now have the whistleblower disclosures recommendations from the
IG, OSC, GAO, and the Office of Medical Inspector and pulling
that data together to identify opportunities for improvement
within the Department and that is something that is very unique
in what we are doing in OAWP, and I think that is different
than what the other entities do. They give their
recommendation, but within VA, we now have the responsibility
of ensuring those recommendations are implemented.
Mr. Bergman. Thank you.
Mr. Chairman, I yield back.
Mr. Pappas. Thank you.
I would now like to recognize Miss Rice for 5 minutes of
questioning.
Miss Rice. Thank you, Mr. Chairman.
Dr. Bonzanto, although the VA has procedures for
investigating whistleblower complaints, these procedures have
allowed the program office or facility where a whistleblower
reported misconduct to conduct the investigation. GAO even
found instances in which managers investigated themselves for
misconduct. How do you plan on addressing this issue going
forward to ensure independence in the investigation and things
are done in an unbiased way?
Ms. Bonzanto. That, for OAWP, we investigate all
allegations related to retaliation. We also investigate the
allegations into senior leadership poor performance and
management. We do have the authority similar to OSC[PAC(1] to
refer cases back to the administration. Part of improving our
processes internally is we develop a questionnaire. We are
working on a questionnaire to basically triage these cases to
ensure that we are not referring cases back to the program
office where a manager who is involved in the case is going to
be part of that investigation.
It is improving my internal training for my staff and also
creating these templates where they can have a checklist of
standard questions to go through to, again, improve anonymity
and improve communication and ensure that people who are
involved in the allegation are not part of the investigation.
Miss Rice. I mean, that is good because I know we have
heard before about a level of frustration on the part of
whistleblowers that it is hard to have an unbiased approach
when the person heading the investigation is involved.
One of the other--what we heard--and it was really
disturbing in the last hearing--how actions taken by the VA
against whistleblowers follow them for the rest of their
careers and impact their future employment opportunities if
they were to leave, but it doesn't seem to be the case for the
more senior-level employees who retaliate against them.
One issue that I would be interested to hear yours and
anyone else's feedback on that I think speaks to addressing the
cultural issue and holding senior-level employees accountable
is how relevant information or documentation on instances of
whistleblower retaliation or a substantiated misconduct is
shared across the VA at the leadership and facility levels. If
a senior-level employee had been implicated in a whistleblower
retaliation disclosure, but no official action had been taken
against them for misconduct, is this type of information shared
across the VA? If not, do you think it should be?
Ms. Bonzanto. Are you--to clarify, you are speaking about
if an individual, there is a claim against retaliation that
would substantiate --
Miss Rice. Yeah.
Ms. Bonzanto. If there is a recommendation regarding that,
we have to report back. If the recommendation coming out for
disciplinary action regarding retaliation is not followed, we
actually have to share that information back. I report directly
to the Secretary. So, leadership is aware of that doesn't
happen.
Miss Rice. I mean, it just seems that there are more
negative--there is a much more--much greater negative impact on
the whistleblowers obviously --
Ms. Bonzanto. Right.
Miss Rice.--than the people who retaliate against them.
There doesn't seem to be that much accountability at the higher
levels in the VA for actions they may take against a
whistleblower versus the sometimes career-ending impact it has
on the whistleblowers themselves. How can we make that a more
consistent across-the-board? I mean, the whole culture of the
VA starts at the top. If people in higher positions are not
being held accountable when whistleblowers are actually having,
you know, a much larger impact, professional and personal
impact, how do we address that inconsistency there?
Ms. Bonzanto. Part of our office, when we are talking about
disciplinary action, is to actually track those. That is part
of the data analysis we have to do. We will be able to identify
those areas where a leader is refusing to take action against
someone who is, you know, claiming, who has an allegation,
substantiated allegation of retaliation.
Miss Rice. Is this something you are just starting to try
to get information on?
Ms. Bonzanto. Right. This is something--so I have been in
the office for 6 months. This is something that is important
and critical, and the Committee has also said that we want to
know where these data points are.
Miss Rice. How are you going about compiling that
information?
Ms. Bonzanto. It is through recommendations for
disciplinary action. When we give a recommendation for
disciplinary action, if those actions are not taken, that is
something we have to track within our office.
Miss Rice. Can we--you will obviously be sharing those
results with us, too.
Ms. Bonzanto. Yes.
Miss Rice. Okay. Thank you very much.
Thank you, Mr. Chairman. I yield back.
Mr. Pappas. Thank you.
I would like to recognize Mr. Bost for 5 minutes.
Mr. Bost. Thank you, Mr. Chairman.
Dr. Bonzanto, as you know, we had issues in my district in
the Marion VA of the alleged whistleblower retaliation. One of
the main concerns that the staff has heard about and
communicated several times is individual VA employees so--is
the communication between your office and individual employees.
In your opinion, what is a reasonable expectation of
communication time from your office to disclosure and
retaliation complaints? Obviously, not everything reported is
going to have the evidence to back it up on the initial claim.
When this happens and the claim cannot be confirmed, does your
office let the VA employee who sent the disclosure or
retaliation know so that they know the actions are being taken?
Ms. Bonzanto. That is something that we are working
internally to improve. As Mr. Kerner said, they are at 5 days,
I think, for something. That is a goal for us to strive to get
to. I would say my expectation is that each employee has about
within 7 working days that we give a response that we received
your allegation. One of the things we are also working on is
understanding where in that journey, you know, from blowing the
whistle to getting to the investigative phase, looking at those
touch points; and we also have communicating to my staff in the
OAWP the importance of informing both the whistleblower, the
person that is being investigated, of where they are in the
process.
One thing that I do want to recognize here and say is that
a lot of times employees want to know whether or not
disciplinary action was taken, and employees do have a right to
privacy, and that is something that we inform them how to go
about getting information regarding the case, the person that
we are investigating. I can't--as an entity, we don't disclose
to the whistleblower whether or not disciplinary action was
taken against the person that they alleged something.
Mr. Bost. That is because they are both employees.
Therefore, they are both --
Ms. Bonzanto. Right. They both have the right to privacy in
the process.
Mr. Bost. Right. Right.
The next question I have is actually for all the government
witnesses. Sometimes during these processes, obviously,
whenever they want anonymity, sometimes that doesn't happen. Or
sometimes you find that the person who has had the whistle
blown on them all of a sudden finds out who it was that did
that. How do you handle those situations? Each one of you, if I
can, or if it doesn't happen, tell me.
Mr. Leavitt. For MSPB, it is just somewhat inapplicable
because we don't conduct investigates in the way the other
three entities do. If it is known, someone files before us who
the parties are, the agency will know.
Mr. Missal. We work very hard to make sure it doesn't
happen. Sometimes, though, if it is an office which has a very
small number of people, it sometimes is fairly obvious. We
always balance the individual's right to privacy when they do
report it to us with the need to go further. We may talk to the
individual as well who provided us the information and explain
to that person, ``For us to go forward, these are the steps we
are going to have to take,'' just to make sure the person is
aware of it.
We try very, very hard to protect the confidentiality of
anyone who comes to us who asks to remain confidential, and I
believe we do accomplish that.
Mr. Kerner. No, we don't disclose the identities of the
person making the claim unless they want us to. Obviously, if
there is a need for them, for example, by getting a stay of
their personnel action against them, et cetera, sometimes they
will volunteer. For the most part, we protect people's
identities as well.
Ms. Bonzanto. OAWP, we are committed. We are also
protecting whistleblowers. I do have to say, in retaliatory
cases, if you choose to remain anonymous, it is very difficult
to ask questions regarding retaliation if you are choosing to
remain anonymous in disclosing that information. But employees,
we do not disclose employees' information unless they choose
to.
Mr. Bost. One last question because I have only got less
than a minute here and this is going to be for all three of
you.
Individual VA employees understand the process of bringing
forward a disclosure and retaliation complaint. Or do the
employees think that--all of your why offices can handle a
complaint. Do they know the process? General Bergman was very
clear about the KISS process which, as a nonofficer, we
understood very clearly. Do you think these new--these
employees under this process now understand how to file and
truly file the claims?
Ms. Bonzanto. I am not confident that is happening. With
that being said, we are working, OAWP is working with the OIG
and the OSC to develop training regarding whistleblower cases
like whistleblower reporting when you want to make a
disclosure.
Mr. Missal. I don't think they do. That is why I frequently
ask VA employees what do they know about the OIG. Where would
they go for a complaint? It is all levels at VA. It is some of
the more senior people don't really understand the relationship
between OAWP, OSC, OIG, and that is why we feel so strongly
that VA ought to put out a training that we have prepared on
when to come to the OIG, when to come to some of the other
avenues, and we hope that training gets implemented.
Mr. Kerner. Yes, we work very hard to try to get
whistleblowers to know about us. We try to raise our profile.
We do press releases. We also count on the agency, the VA, to
notify them. We have an agreement with the General Counsel's
Office at the VA that, if there are significant personnel
actions, to let them know that OSC exists as a channel. We also
do trainings. There are some mandatory training for supervisors
and others about PPPs, prohibited personnel practices.
We are hoping that employees do know about OSC. As I said,
as we have press releases and other ways to make ourselves
known, I think they do. We get a lot of cases from the VA. We
do think a lot of them know about us.
Mr. Bost. Thank you.
Thank you, Mr. Chairman. I apologize for going over time.
I yield back.
Mr. Pappas. Thank you.
Mr. Rose, you are recognized for 5 minutes.
Mr. Rose. Thank you, Mr. Chairman.
I want to follow up with what you all were just saying
about these trainings because I do feel like we can do this in
a bit more of a deliberative and quantitative manner.
First of all, Mr. Missal, you had mentioned that there are
trainings that you hope could be happening. Is that--am I
correct in saying that?
Mr. Missal. Correct.
Mr. Rose. What is going on? Who is saying no to you?
Mr. Missal. Nobody has said no. We are working through the
process. It is a long process. We put together a training
program. VA has a pretty extensive training program for a lot
of different areas, including the maintaining confidentiality
of documents, protected information, et cetera.
Mr. Rose. No one is saying no. What is the timeline for
when this happens?
Mr. Missal. We hope it is sooner than later, but it has
been months in the works, and we keep telling another step
needs to happen, another step needs to happen.
Mr. Rose. Do you feel like it could go faster?
Mr. Missal. Yes, absolutely.
Mr. Rose. Who do we have to talk to for it to go faster?
Mr. Missal. Senior leadership at VA.
Mr. Rose. Can you give us a name? Talk to all of them?
Mr. Missal. Secretary Wilkie.
Mr. Rose. We should talk to Secretary Wilkie to urge him
for this training to go faster so people understand who to go
to, when to go to them.
Mr. Missal. That is correct.
Mr. Rose. Okay. You can count that we will do that.
What about staffing? Whether it is OIG or any of the other
offices you all represent, you know, the VA is the second
largest Department, hundreds of thousands of employees,
billions of dollars in budget. Do you all feel like you are
adequately staffed to both respond to whistleblowers as well as
protect them thereafter?
We will start with you, Dr. Bonzanto.
Ms. Bonzanto. Currently, sir, I am adequately staffed for
what I am doing.
Mr. Missal. I don't think we are adequately staffed for
what our requirements, obligations, and responsibilities are.
As VA has grown in tremendous size over the last five to 10
years, our office for a long time remained relatively flat.
Mr. Rose. Okay.
Mr. Missal. We appreciate the increases Congress has
recently given us, and we are getting to a better level, but I
don't believe we are adequate now.
Mr. Rose. Let's try to go into the details a little bit
there. What do you think you do need in order to adequately
fulfill the expectations that we all associate with your, the
OIG or its other respective responsibilities?
Mr. Missal. For the next fiscal year, the House has
appropriated $222 million for us which would be an increase
from the previous year. Just given we want to grow in a
measured, controlled way, we think that would be adequate, but
we hope that would be just a series of increases going forward.
Mr. Rose. Okay.
Sir?
Mr. Kerner. Yes, thank you. We are also understaffed, as I
alluded to a couple of times. We have had a tremendous growth
in cases. Because of that, we have a significant backlog. We
have about 2,600 cases that are backlogged.
Mr. Rose. You have a 2,600-case backlog.
Mr. Kerner. Yeah.
Mr. Rose. How long is it going to take you to get through
that?
Mr. Kerner. It depends on our staffing level, right.
Mr. Rose. If your staffing level is maintained.
Mr. Kerner. Well, then every year we get about 6,000 new
cases. Wwe resolve about 6,000 new cases. We have a backlog of
2,600 every year.
Mr. Rose. You are telling me that is relatively a 6-month
backlog?
Mr. Kerner. Yes, that sounds right.
Mr. Rose. Walk me through, then, from an individual's
perspective, right?
Mr. Kerner. Yes.
Mr. Rose. Whistleblower comes forth, gets--becomes a part
of the backlog.
Mr. Kerner. Correct.
Mr. Rose. 6 months.
Mr. Kerner. Well, I don't know if it takes 6 months because
not all cases are the same, right? Some are more fact-specific.
Some are more intense.
Mr. Rose. Yeah, but in the aggregate, 6,000 cases in a
year, roughly 3,000 backlogs. That is 6 months. What are some
of the consequences we have seen of that backlog?
Mr. Kerner. Well, so the consequences are we just don't get
to someone's case, which means you might have a very
meritorious case of whistleblower retaliation. Unfortunately,
by the time our examiner gets to that, weeks or months have
gone by, and their frustration level goes up.
Mr. Rose. Can you give us a specific example?
Mr. Kerner. Well, I mean, there is just--I mean, I don't --
Mr. Rose. You can pick out of the hat. What has happened
where there has been a consequence of that backlog?
Mr. Kerner. The consequence of that backlog would be that a
whistleblower had their case sitting with us and doesn't--we
don't get to it for a while and the case--I thought you had
testimony at the last hearing where one of the witnesses talked
about how a case took a couple of years. Now why does this case
take a couple of years? It takes a couple of years sometimes
because of the discovery, right. You are waiting for documents.
Sometimes there is also either changes in staffing or people
don't get their cases --
Mr. Rose. What do you need to address this backlog?
Mr. Kerner. More staffing.
Mr. Rose. How many more?
Mr. Kerner. We currently, as Mr. Missal said, in the House
bill we are at 28 million, which is a million and a half more
than we have now. That would certainly be a big help.
Mr. Rose. Okay. Thank you very much.
Mr. Kerner. Thank you.
Mr. Pappas. I will recognize Mrs. Radewagen for 5 minutes.
Mrs. Radewagen. Thank you, Mr. Chairman.
Mr. Missal, the IG received 35,000 hotline contacts in
fiscal year 2018. What percentage of hotline cases are closed
without investigation? What percentage are investigated? Could
you please explain how your office decides whether a complaint
merits further investigation or should just simply be closed
without action?
Mr. Missal. Of the 35,000 contacts, as I testified, we
analyze and evaluate each and every one of those. The number
that turn into an OIG investigation is a relatively small
percentage. Again, it is a resource issue. We take the matters
that we believe are the most significant, most impactful, have
the greatest risk to veterans or tax dollars, and so we can
only take a relatively small number.
A number of the other contacts we get we may refer over to
VA and ask them to take a take a look at it and report back to
us or just refer to them. Or a number of the others we may send
to another agency such as OSC, which is more capable of
handling it if it is a retaliation case since Mr. Kerner's
office has more authority over retaliation than we do.
Mrs. Radewagen. Mr. Kerner, of the approximately 2,100 VA
cases OSC received last year, how many were disclosure cases?
What percentage of disclosure cases did OSC close without
investigation? How does OSC determine whether a disclosure
warrants further investigation?
Mr. Kerner. Yes. What happens is we--in terms of
determination, we have to meet a legal standard. The legal
standard is called substantial likelihood. When we get a case
from someone who files a disclosure, we have 45 days by statute
to make the substantial likelihood determination.
If it does rise in the opinion of the investigator or the
lawyer to the standard, then we refer to the agency. The agency
then assigns it for investigation. We don't actually do the
investigation. If it doesn't reach that level, then we close
that case.
I think in terms of the last cases--let's see. One second.
We have approximately 2,100 VA cases. The disclosure cases
at VA were about 431. I don't have the--so it is about 39
percent. I don't have the exact number of how many we closed.
We almost certainly dealt with all 431. We refer --
Mrs. Radewagen. They were closed without investigation?
Mr. Kerner. Some of them--yes. Some of them, if they do not
rise to the level of a substantial likelihood, then those cases
would be closed, yes. Almost all of them were addressed
certainly by last--by this--sorry--for fiscal year 2019, we had
431. For fiscal year 2018, we had 642 VA disclosure cases, and
they would definitely be addressed, certainly at this point,
within the 45-day statutory requirement.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back the
balance of my time.
Mr. Pappas. Thank you very much.
I now would like to recognize Mr. Cisneros for 5 minutes of
questioning.
Mr. Cisneros. Thank you, Mr. Chairman.
Dr. Bonzanto, you had said earlier that, you know, the VA
definitely needed a culture change and that really needed to
happen at the top, in which I wholeheartedly agree at that.
How is that change, you know--the Secretary is dedicated to
this. How are we getting that down to the VA facilities so that
they know that a culture change is happening? How is your
office making sure that those individuals, the supervisors at
the facilities, know that retaliation against whistleblowers is
no longer going to be tolerated?
Ms. Bonzanto. Sir, thanks so much for that question. That
is something, when we speak about internal customer service and
the conversations, I can give you the example in my office also
that we are doing is having--the Secretary does have townhalls
with employees. He is leading from the top. Then promoting
that, the importance of staff engagement throughout the
organization.
Something even internal to OAWP, having the division calls
with my staff, having all-hands calls with my staff. Those are
things, as an example, that we are doing internally to promote
the importance of staff engagement, and listening to employees
when they have --
Mr. Cisneros. Yes. But he is talking he is talking to your
staff.
Ms. Bonzanto. I am giving you an example--he is taking the
leadership, and I am also doing that in my staff as an example
of what we are doing.
The other part of it is also the training that we are
developing regarding the whistleblower retaliation and why it
shouldn't be happening and what each one of our offices is
doing to protect whistleblowers.
Mr. Cisneros. Is this training for supervisors or is it for
every employee?
Ms. Bonzanto. Every employee, sir. By the --
Mr. Cisneros. What specifically are we doing regarding
supervisors to let them know that this treatment is no longer
going to be tolerated? I mean, is there anything being done
specifically for them, or are they just getting the same
training that everybody else is getting?
Ms. Bonzanto. All employees have the same training. But
also, supervisors--our office investigates retaliation. That is
what we are charged to do in OAWP, and we will start--those
cases, there is accountability --
Mr. Cisneros. I get that, but how are we changing the
culture, right? I get that you are putting things out to
employees and you are letting them know that it is okay to come
out and to report the whistleblowers. How are we letting them
know--how are we letting supervisors know that this isn't going
to be tolerated anymore? That retaliation--the way that used to
be done is going to change?
I mean, what is being done different to address supervisors
that they need to change the way they are doing business--
business has been done in the past.
Ms. Bonzanto. That is through training and promoting the
offices that we do have here is --
Mr. Cisneros. I know. You are saying the training is for
everybody. It is--pretty much it is probably a general training
that is given to all employees.
Ms. Bonzanto. Right.
Mr. Cisneros. But is there a specific training that is
dedicated to supervisors to let them know that when you are a
supervisor, you know, like just last week I had to go to a
training that was meant for Members of Congress and how I treat
my staff. It wasn't an overall, you know, all Members,
everybody who is employed by the House of Representatives
training.
What are we doing specifically for supervisors to let them
know that business is changing, the way that things used to be
done in tolerating--we are not going to tolerate the way that
we treated whistleblowers in the past?
Ms. Bonzanto. I could find out exactly, and I could take
that--the exact training that is happening for the supervisors
regarding retaliation. I know we have the all-employee training
for every employee. Specifically, for supervisors I could take
that for the record get back to you.
Mr. Cisneros. Mr. Missal, you are chomping at the bit
there.
Mr. Missal. In 2017, Congress passed the Chris Kirkpatrick
law which requires retaliation and whistleblower training for
all supervisors. Our office does that training for all
supervisors. We do that on an annual basis.
Mr. Cisneros. Has that been effective?
Mr. Missal. I think it is very effective. It is a very good
training program. I recently took it, and so I can personally
say I found it very helpful.
Mr. Cisneros. All right.
Ms. Garrick. Mr. Cisneros, if I could answer some of this?
Mr. Cisneros. I was just going to let you, Mr. Devine and
Ms. Garrick,--I wanted to give you a chance, right? I know it
has been like 6 months, but I would love to hear your thoughts
and really what you are hearing from those that you represent.
Ms. Garrick. I think the real issue here, what you are
really asking is about accountability. When we talk about
training, we have talked about training for years and years and
years. That is a paper tiger answer, and it is so infuriating
because there is no fear at training. There has been all kinds
of whistleblower training. Mr. Devine does a lot of training.
It is online. There is lots of training.
The fact that we can show from so many of the people who
contact us that--they never get responses to their emails.
There is no policy in place that explains any of this.
The VA put out a report, a 14-page report with a pneumonic
we too care instead of a policy statement. That is just so
unprofessional. I am at a loss for words. The fact that we
don't have a good bargaining agreement with the union, we don't
have a mentor program that we started that got disbanded. There
is a lot of things that the VA was doing, could be doing. We
have tried to get regular accountability meetings, scheduled
quarterly meetings with the VSOs to go over some of the
disclosure issues.
The fact that not a single Senior Executive Service (SES)
or a single manager who has wasted government money has put
veterans and their care at risk has not been held accountable,
that should be something that this Committee should be furious
about.
Mr. Devine. Congressman, we certainly welcome the cause for
improved culture and attitude. We welcome Dr. Bonzanto's
appointment, and the whistleblower community pledges full
support for her.
Better attitudes at the top aren't a substitute for
results, and the results aren't getting better from our
experience, sir. Before the hearing last month, a day before
the hearing, one of the key witnesses was fired by the VA. That
is intended to send a message.
GAP has been working with Office of Special Counsel
mediators and attorneys for the last year in trying to resolve
six whistleblower cases. Despite beyond-the-call-of-duty
efforts by the Office of Special Counsel, the VA hasn't been
willing to resolve any of those cases in a civilized manner.
I think if there was any issue that is a good weathervane
for whether or not this talk is making it into realty, it is
the secret waiting list issue.
Five years ago that scandal broke, and it horrified the
Nation. The VA promised to do much, much better. At last
month's hearing, all three whistleblowers were disclosing
ongoing problems with secret waiting lists. Three out of the
five GAP clients I talked about in my testimony were on secret
waiting lists. The problem isn't going away, and it is not
surprising why it is not going away.
The VA had a very effective corrective action program that
was doing outstanding work with hands-on efforts in the medical
centers to correct the problem of secret waiting lists. That
was canceled and replaced with a pork bureau contract, a kind
of buddy system contractor scheme. If you look at the
transition, which happened within the last 2 years, it is
impossible to be optimistic what is happening at the VA.
Mr. Pappas. Mr. Devine, I apologize. We are a little bit
over on his time for questioning.
Mr. Devine. Yes, sir.
Mr. Pappas. A couple of us will ask additional questions,
and we might get --
Mr. Devine. Yes, sir.
Mr. Pappas.--to allow you to expand upon that a bit. I
appreciate your response.
With that, I would like to recognize Mr. Peterson for 5
minutes.
No.
Okay. Well, maybe we will pick up there, then, Mr. Devine.
You know, we were asking, you know, our government
witnesses to gauge a little bit the culture change that needs
to happen and the steps that they have outlined. You are not
satisfied with that.
Would you like to continue or offer anymore comments in
that vein?
Mr. Devine. Well, yes, sir. It is the secret waiting list
issue that is just eating at us. The VA had a very effective
unit, VERC was its acronym, that was going in and working with
the hospitals and cleaning up this mess.
However, it was replaced, and the congressionally chartered
commission on care applauded their work, recommended giving
them more resources and authority so that they could better
pursue their mandate. The VA responded to that recommendation
by canceling the work of the VERC merging it into another unit
which laid off all 127 career employees who were seasoned
veteran professionals at solving these problems and replaced
them with an outside contractor under the sleaziest of
conditions.
The outside contractor had access to inside budget
information in order to customize their proposal. The
reorganization that brought them into power was instituted
without prior congressional authorization as required by law.
The outside contractors were benefiting from Federal spending
for a study on how to replace Federal employees with
contractors, which is illegal. The outside contractors were
violating Federal acquisition regulations by supervising
Federal employees.
What has happened with this? Well, now, instead of having
hands-on work at the hospitals, it is a paperwork review where
the medical centers certify themselves on an honor system to
the outside contractors, that they have solved the problems.
They have canceled the site visits. They have stopped making
progress. The cost of this has increased from $45 million to
$150 million.
We have replaced effective corrective action with a buddy
system pork barrel scam, Mr. Chairman. That doesn't leave me
feeling very encouraged about the progress at the Veterans
Administration.
Ms. Garrick. When we have--and we have the wrongdoers
investigating themselves. We have government money that doesn't
get properly spent. The OIG--one of the reports that I cite all
the time is this $11.7 million that went to Calibre while
O'Rourke was head of the OAWP. There was no resolve to that.
The money doesn't get called back. None of the Veteran Benefits
Administration (VBA) people that were responsible for that
contract--there was no accountability for that. There was--they
recommended more training.
That is why I get so frustrated when--and then we have caps
on arbitration. Why are caps at $5,000? Who is going to go
through that process when that is the resolve? We have VA
employees experiencing cyber bullying.
There is no one at the VA that will investigate threats,
threats of stalking and actual physical harm to VA employees
who are whistleblowers. The OIG doesn't do it. The VA police
doesn't do it. Who does it? There is no accountability for that
kind of cyber stalking.
Then why do these things take years? I have filed an OIG
complaint on the waste, fraud, and abuse with suicide
prevention money at the VA, something this Committee has said
is its number one priority. That case has sat open since 2016
while veterans are dying by suicide. Why aren't we asking OIG--
no the GAO, I am sorry, said that $6 million wasn't spent.
Well, what happened to unspent money? Who is being held
accountable for that?
Mr. Pappas. Well, I appreciate your perspective. It is
valuable. I just want to get one more question in before my
time is up here, and then I defer to General Bergman for a
final question.
Dr. Bonzanto, I want to go back to you, because in the
report that your office issued most recently, there is a
section called on the horizon. I am very concerned and eager to
learn more about what is just over the horizon for your agency.
Included, there are some very fundamental steps issuing a
policy on whistleblower disclosures and OAWP investigations,
communicating with whistleblowers, developing standardized
training for OAWP investigators, developing specialized
investigatory teams including those trained in whistleblower
retaliation matters.
Not included in there are very specific timelines. I heard
you mention a date earlier with respect to the training
program. I am very interested in understanding and learning
more about the specifics of these things, the timelines for
these, so that we can follow the progress and look to hold your
agency accountable in the future.
Can you provide any of those for us today or follow up with
us with those details?
Ms. Bonzanto. Yes, sir. I could speak for the timeline as
the policy is rolling out. We expect by October 1 to actually
have our investigative--the directives involving investigations
and what we do, how we do it by October 1. As for the rest of
the requirements in here, by the end the calendar year, I
expect to have actually all of these implemented.
Hopefully we can start measuring some progress in
developing the metrics to really give you some type of idea
where we are and what our challenges are by the end of this
calendar year.
Mr. Pappas. Okay. That is vital. I appreciate that.
Ms. Bonzanto. Yeah. I will keep --
Mr. Pappas. I would like to follow up and continue that
conversation on those issues. We need to know that information.
General Bergman, I would like to turn it over to you for
any final questions.
Mr. Bergman. Thank you, Mr. Chairman.
I want to set the record straight here just to make sure I
understand it. Dr. Bonzanto, Mr. Devine just said that Dr.
Aghevli was fired the day before the last hearing. I sent a
letter asking VA to review under the 714 hold procedures and
was advised that she was put on a hold.
Can you confirm--do you have the ability to confirm where
we are on that on this one? Or if you can't, if you could take
it for the record, I will just --
Ms. Bonzanto. I will take that one for the record, sir.
Mr. Bergman. Okay. Yeah. Because I just wanted to make sure
that we understand where we are in the process for --
Ms. Bonzanto. OAWP does have the ability to place holds on
actions taken under 714, and that is something we do have in
our statute to protect whistleblowers.
Mr. Bergman. Okay. Mr. Kerner, I mean, is there a chance
you might know that?
Mr. Kerner. Yes, I believe we have a hold on it.
Mr. Bergman. Okay. Okay. Well, let's just double check
here, because we didn't--again, this is--all of this is
recorded, and we want to make sure that we didn't misstate.
Mr. Kerner. Yeah. I checked with the person who does this
in our office, and she informs me that we do have a hold.
Mr. Bergman. We do have a hold.
Mr. Kerner. Yes.
Mr. Bergman. Okay. Well, anyway, my question is, again, Mr.
Kerner, when we talk about training programs and getting people
up to speed on the same sheet of music, what is the 2302(c)
certification program? Has VA completed the certification? What
does the certification convey?
Mr. Kerner. Yeah. VA and, actually, the VA IG as well are
currently in the process of recertifying. They had previously
been certified under the program, but we are recertifying them
now. The 2303(c) program is a program where OSC has taken on
the responsibility to voluntarily have an active role by
teaching and educating supervisors and making sure that
everybody complies with the retaliation and other legal
requirements.
Specifically we have--we act as a certifying entity for
agencies. As part of that role, we work closely with them to
ensure that they are meeting all the standards outlined in
2302(c) to educate and protect whistleblowers and other Federal
employees.
There are roughly 170 agencies, and we have fairly limited
resources. For a lot of them we don't actually do the training,
but we do provide a lot of the slides or other materials for
the training. Then we certify when they come back to us and
comply with the training program.
That is what we do with that.
Mr. Bergman. Thank you.
Mr. Chairman, I yield back.
Mr. Pappas. Well, thank you.
Do any of the Members have any additional questions before
we close?
Well, seeing none, I just want to highlight a couple of
points here before we close the hearing.
First, the Subcommittee takes these issues very seriously.
We are going to continue to track the disclosures and the needs
of VA whistleblowers.
Let's be clear on one fact. Whistleblowers are performing a
public service. They are a critical resource, and they need to
be protected. The inspector general will be issuing a report
about VA's Office of Accountability and whistleblower
protection, and a September hearing of this Subcommittee will
focus on that review, and we await those details, Mr. Missal.
We are also awaiting further information from the Office of
Accountability Whistleblower Protection. As I asked for today,
we are very much interested in further details, further
policies and procedures and timelines of how we can best track
that progress moving forward.
Frankly, the testimony today left me wanting more, and so I
think further discussions and further hearings are warranted to
ensure that things are moving in the right direction. I remain
concerned. Concerned after a hearing at the end of June where
we had three witnesses describe some pretty harrowing
circumstances that unfolded over many years, individuals who
stepped forward just wanting to try to do the right thing.
We have more work to do. We look forward to talking with
you all in that process. I want to express my appreciation for
each of those who appeared here before us today for offering
your testimony, your thoughts, your views. We heard a lot of
important thoughts from our government witnesses and from the
whistleblower advocates. We thank you for being a part of this
again today.
There wasn't always agreement, certainly. The dialogue is
important, and it must continue. Ultimately, we are all working
toward the same goal, and that is ensuring that the VA serves
our veterans as best it can. There are certainly ways we all
understand that that process can be improved, and
whistleblowers are part of that process.
I look forward to working with all of you. Dr. Bonzanto,
clearly you have, you know, an important job ahead of you. You
all do as you move ahead and make sure that things are headed
in the right direction, and we stand ready to work with you
every step of the way.
It is pivotal that we all come together to improve the
protections that exist for whistleblowers and, in turn, improve
services for our veterans.
With that, I would like to turn it over to Ranking Member
Bergman for any closing comments he may have.
Mr. Bergman. Thank you, Mr. Chairman. Very briefly, to echo
what the Chairman said, we all have a responsibility to protect
the whistleblowers to create a culture in which everyone is
held accountable, and we will do our part as the elected
oversight part of this. We are counting on all of you to do the
same.
Thank you very much for holding the hearing, Mr. Chairman.
I really appreciate it.
Mr. Pappas. Well, thank you.
Members will have 5 legislative days to revise and extend
their remarks and include any extraneous material.
Without objection, the Subcommittee stands adjourned.
[Whereupon, at 6:25 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Dr. Tamara Bonzanto
Chairman Pappas, Ranking Member Bergman, and Members of the
Subcommittee, thank you for the opportunity to testify today regarding
whistleblower protection at the Department of Veterans Affairs (VA).
Background
VA's Office of Accountability and Whistleblower Protection (OAWP)
was established by the President of the United States on April 27,
2017, under Executive Order 13793. OAWP was statutorily established by
the VA Accountability and Whistleblower Protection Act of 2017, Public
Law 115-41, and its functions are codified under section 323 of title
38 of the United States Code (U.S.C.). OAWP is committed to ensuring
accountability within VA and protecting whistleblowers from
retaliation. I was confirmed as OAWP's first Assistant Secretary in
January 2019.
Protecting Whistleblowers
The Secretary and I recognize the need for improvements to
whistleblower protection within the Department. OAWP:
(1) directly investigates all whistleblower retaliation allegations
made by VA employees and applicants for employment against VA
supervisors. This mitigates the possibility that whistleblowers may
face retaliation for making a lawful disclosure;
(2) has engaged with other Federal agencies, including the Office
of Special Counsel (OSC), the Department of Defense, the Department of
Justice, the Department of Labor, and the Department of Homeland
Security, to obtain best practices to develop training to protect
whistleblowers; and
(3) has developed a process to regularly update whistleblowers who
make a disclosure to OAWP about the status of the investigation into
their allegations.
The Secretary and I understand the sense of urgency to improve
operations and my team is actively working to implement the following
to better protect whistleblowers by:
(1) providing standardized training for all OAWP investigators.
This ensures that all OAWP investigators understand the law and can
apply it in their matters in a consistent manner;
(2) issuing written VA policy on how OAWP investigates
whistleblower disclosures that it receives;
(3) working with VA's Office of Inspector General (OIG) and OSC to
finalize training for all VA employees as required under 38 U.S.C.
Sec. 733, which addresses, among other things, methods for making a
whistleblower disclosure, prohibitions against taking an action against
an employee for making a lawful disclosure, and penalties for
whistleblower retaliation; and
(4) refining the investigative processes to ensure that
investigations are done in a timely manner.
Complying with the Law
In addition to continuously improving whistleblower protection at
VA, OAWP is actively working on complying with the other requirements
of 38 U.S.C. Sec. 323, including:
(1) standing up a team to record, track, review, and confirm VA's
implementation of recommendations from audits and investigations
conducted by the Government Accountability Office, OIG, VA's Office of
the Medical Inspector, and OSC;
(2) developing written policies to implement the above statutory
requirement; and
(3) ensuring that VA is compliant with the reporting requirement in
38 U.S.C. Sec. 323(f)(2), specifically, that it report to Congress
when VA ``does not take or initiate'' disciplinary action that I have
recommended.
Engagement with Whistleblowers
The Secretary and I value all VA employees and whistleblowers and
their commitment to improving care and services for Veterans. The
Secretary and I want VA to be a place where employees are encouraged to
raise concerns about our operations and can trust that management will
take allegations of wrongdoing seriously and that they will not face
retaliation for raising those concerns. Since my appointment, we have
met with several internal and external stakeholders, including Veterans
Service Organizations and non-profits, such as the Whistleblowers of
America. We value the input received during these engagements and look
forward to continuing to discuss ways to improve whistleblower
protection.
Conclusion
Mr. Chairman, Ranking Member Bergman, I look forward to working
with this Committee and continuing to engage with our internal and
external stakeholders to identify opportunities to enhance VA's ability
to protect whistleblowers. This concludes my testimony. I look forward
to answering your questions.
Prepared Statement of Inspector General Michael J. Missal
Chairman Pappas, Ranking Member Bergman, and Members of the
Subcommittee, thank you for the opportunity to discuss the role of the
Office of the Inspector General (OIG) in receiving complaints;
evaluating them; and protecting those who report allegations of waste,
fraud, abuse, and other wrongdoing regarding the programs and
operations of the Department of Veterans Affairs (VA).
The OIG is committed to serving veterans and the public by
conducting oversight of VA programs and operations through independent
audits, inspections, reviews, and investigations. We rely heavily on
allegations, complaints, and information from VA employees, veterans
and their families, Congress, and the public when deciding where to
focus our resources. The OIG treats all complainants as whistleblowers
as we respond with respect, safeguard confidentiality, and diligently
evaluate their concerns.
An individual's decision to bring allegations forward should not
have to be weighed against possible adverse actions. The Whistleblower
Protection Act prohibits reprisal against public employees, former
employees, or applicants for employment for reporting a violation of
law, rule, or regulation. That prohibition extends to reports of gross
mismanagement and waste of funds, abuse of authority, or a substantial
and specific danger to public health or safety.\1\
---------------------------------------------------------------------------
\1\ P.L. 101-12, April 10, 1989.
---------------------------------------------------------------------------
BACKGROUND
VA is the second-largest Federal agency with a budget for fiscal
year (FY) 2019 of over $200 billion and more than 395,000 employees and
contractors. In contrast, the OIG has a staff of approximately 950
employees and a budget for FY 2019 of $192 million.\2\ The size of the
OIG relative to VA presents significant challenges for conducting
oversight. The OIG operates a hotline to receive whistleblower
complaints and other complaints that is staffed by a dedicated team.
The hotline received more than 35,000 contacts in FY 2018 and over
15,000 contacts for the first six months of FY 2019. Every contact is
reviewed and processed by an analyst upon receipt. We receive
information via telephone, fax, regular mail, and through a web
submission form on the OIG's internet site. In addition to the OIG's
many outreach efforts, a link to the submission form is prominently
displayed on the OIG's website. There are also posters in VA facilities
on how to contact the OIG. As the result of site visits and other
engagements with stakeholders, OIG staff may also be contacted by
individuals directly with information or allegations of wrongdoing.
These contacts are also routed through the hotline for tracking and
potential follow-up.
---------------------------------------------------------------------------
\2\ The OIG is actively hiring to further expand our oversight
activities.
---------------------------------------------------------------------------
The OIG does not investigate complaints that are unrelated to VA
programs and operations or issues and may forward such complaints to
other Offices of Inspector General or to other investigative agencies.
We also typically do not accept complaints that are more appropriately
addressed through other legal or administrative forums, including
claims of whistleblower retaliation.
The OIG does not generally investigate claims of whistleblower
retaliation. We will investigate the underlying complaint but not
whether the individual was reprised against for making a protected
disclosure. The Whistleblower Protection Act vests the authority to
provide relief for violations in other specific entities. The OIG does
not investigate allegations of whistleblower reprisal made by VA
employees or applicants because the OIG cannot provide direct relief to
those individuals. It has been our longstanding policy to refer
complainants alleging whistleblower retaliation to the Office of
Special Counsel (OSC) or directly to the Merit System Protection Board
(MSPB), if appropriate. OSC not only has the authority to investigate,
it also has the authority to seek corrective action through the MSPB on
behalf of an employee or former employee. We now also have the option
of referring VA employees to VA's Office of Accountability and
Whistleblower Protection (OAWP), which has statutory authority to
investigate allegations of retaliation and make recommendations to the
Secretary for disciplinary action.\3\
---------------------------------------------------------------------------
\3\ P.L. 115-41, June 23, 2017.
---------------------------------------------------------------------------
There is an exception to this general rule, the OIG will
investigate appropriate complaints alleging retaliation against
employees of VA contractors for engaging in protected activity. VA
contractors are also protected against whistleblower retaliation but,
because they are not VA or government employees, do not have recourse
through the OSC or MSPB.
INTERACTION WITH COMPLAINANTS
The OIG hotline staff work with personnel from within the OIG's
oversight directorates with the relevant expertise to engage in an
extensive triage process. Together they determine the best course for
disposition and identify the most critical and impactful issues for
priority attention, particularly individuals at imminent risk of
harm.\4\ Allegations become cases based on a variety of factors,
including issues having the most potential risk to veterans, VA
programs and operations, and for which the OIG may be the only avenue
of redress. Specifically, the hotline accepts information and
complaints that result in reviews of the following types of misconduct:
---------------------------------------------------------------------------
\4\ The OIG has five directorates that carry out oversight activity
- Office of Investigations, Office of Audits and Evaluations, Office of
Healthcare Inspections, Office of Contract Reviews, and Office of
Special Reviews.
VA-related criminal activity
Systematic or other patient safety issues
Gross mismanagement or waste of VA programs and resources
Misconduct by senior VA officials
Allegations that are not selected by an OIG directorate for review
may be referred by the OIG hotline to VA for additional information or
action. When we do refer a complaint to VA, we may do so either as a
case referral or a non-case referral. A case referral requires that the
VA office or facility to which the matter is referred review the matter
and respond back to the OIG about its findings and any actions taken.
The appropriate OIG directorate reviews that information and determines
if it is responsive and appropriate. If so, the OIG will close the
referral. If not, the OIG may ask for additional information and
clarification or may decide to open our own review of the matter. This
practice acts as a force multiplier and allows the OIG to provide
oversight of significantly more issues than if it relied solely on its
own resources for all review activity. A non-case referral is for
matters that we believe need to be brought to VA management's attention
but do not rise to the level of requiring additional OIG oversight of
the response.
Examples of OIG Work
There are countless examples of how whistleblowers and other
complainants have driven change, not only for the matter under review,
but oftentimes at the systems level through changes in policies,
practices, and personnel. The following are three such examples:
Washington DC VA Medical Center - The OIG received
allegations from a whistleblower describing medical supply shortages at
the Washington DC VA Medical Center. In response OIG staff went on site
and confirmed serious deficiencies. The OIG staff further determined a
more extensive review was warranted. As the OIG's involvement became
evident, additional complainants came forward with other allegations.
The hotline staff continued to monitor all allegations relating to the
facility and helped inform the scope of a comprehensive review. This
work highlighted deficient conditions that required VA to take actions
that resulted in reductions in cancelled surgeries, improvements in the
facility's cleanliness and in sterile processing of surgical
instruments, advancements in supply availability, better financial
management, and increases in the consistency of patient safety event
reporting and follow-up. This review, while narrow at its start,
expanded due to additional information received from whistleblowers.
The information obtained was the basis for a published report on how to
ensure core hospital systems function effectively to support quality
patient care and protect government resources. The report and its 40
recommendations, which were the subject of several congressional
hearings, provide a roadmap for the more than 140 VA medical centers
nationwide.\5\
---------------------------------------------------------------------------
\5\ Critical Deficiencies at the Washington, DC VA Medical Center,
March 7, 2018.
---------------------------------------------------------------------------
Veterans Crisis Line (VCL) - The OIG conducted an
inspection of the VCL in 2016 and again in 2017, the latter in part
because of additional allegations received regarding care provided to a
specific veteran and VHA's inability to implement the OIG's 2016
recommendations. Those inspection findings prompted changes to the
leadership structure and to VCL operations that improve the services
offered to veterans.\6\
---------------------------------------------------------------------------
\6\ Health Care Inspection - Evaluation of the Veterans Health
Administration Veterans Crisis Line, March 20, 2017.
---------------------------------------------------------------------------
Millions of dollars were identified in an audit that was
sparked by allegations made by a VA employee to our hotline that
artificial limb and device orders were being improperly billed,
resulting in VA overspending by more than $7 million over three
years.\7\ As a result of that audit, VA agreed to put controls in place
to prevent waste and ensure that taxpayer dollars are being properly
spent.
---------------------------------------------------------------------------
\7\ Use of Not Otherwise Classified Codes for Prosthetic Limb
Components, August 27, 2018.
---------------------------------------------------------------------------
Communication with Complainants
Because complainants can contact the OIG through various methods,
the way in which the OIG communicates back to them will vary. If they
call, the OIG hotline analyst listens carefully and asks probing
questions to ascertain as much relevant information as possible. The
information is then forwarded to the OIG personnel who can determine
next steps. OIG staff also advise the caller of the other agencies that
should be contacted if there is an allegation of retaliation or other
matter not within our jurisdiction. This will be annotated in the
electronic file for that contact. If they contact the OIG hotline
through mail or fax they will, at minimum, receive either a standard
response or a semi-custom response.\8\ A web submission will generate a
screen explaining the process, including advising that it generally
takes six weeks for a response if we take action, and providing
information on the types of complaints that the OIG is not authorized
or best situated to address. For example, the form advises complainants
that whistleblower retaliation complaints should be addressed to OSC.
The OIG's website also identifies other offices that complainants may
contact regarding personnel issues (including retaliation), such as
MSPB, OAWP, VA's Office of Resolution Management, and the Equal
Employment Opportunity Commission.
---------------------------------------------------------------------------
\8\ A semi-custom response provides general information as well as
specific information related to the issue that the complainant brought
forward. The OIG is in the process of making further improvements to
this procedure.
---------------------------------------------------------------------------
The OIG treats all whistleblowers and others who provide
information to the OIG with the utmost respect and dignity, including
protecting to the fullest extent possible the identities of individuals
who wish to remain confidential or anonymous sources. When a case is
opened, the OIG notifies the complainant, if known, in writing or via
email. For a number of reasons, including privacy issues, the OIG
cannot provide updates to requests from complainants for the status of
cases. The complainant is notified when the case is closed. The OIG
does not provide complainants the complete results of cases when they
are closed. However, complainants are provided with specific
information on how to request the results of their case under the
Freedom of Information Act. Complainants generally will not be entitled
to receive information on disciplinary or adverse action taken against
subjects of their complaints because of privacy rules that limit
disclosure of that type of information.
Whistleblower Protection Coordinator
The OIG also plays an important role in helping whistleblowers
access other potential avenues for redress. Under the Whistleblower
Protection Coordination Act, the OIG must designate a Whistleblower
Protection Coordinator.\9\ The coordinator cannot represent or advocate
for the whistleblower, but educates employees on the following:
---------------------------------------------------------------------------
\9\ The Whistleblower Protection Coordination Act, P. L. 115-92
(June 25, 2018), applies to all Federal OIGs.
Prohibitions against retaliation for protected
disclosures
Rights and remedies against retaliation for protected
disclosures
Roles of various entities to include the OIG, the OSC,
the MSPB, and other relevant offices such as VA's OAWP
Timeliness and availability of alternative dispute
mechanisms and avenues for potential relief
INTERACTION WITH OTHER AGENCIES
The OIG interacts with other oversight entities to ensure that all
available resources and protections are available to complainants. As
previously discussed, there are many agencies that complainants can go
to for redress. The OIG's website includes Frequently Asked Questions
related to hotline inquiries that outline the types of complaints that
are addressed by the OIG as well as other offices and provides contact
information for those entities. This information is also provided to
individuals who call or write to the OIG hotline when applicable.
Although the OIG refers individuals contacting our hotline to many
agencies, we have formalized the exchange of information particularly
for allegations of retaliation, for which the OIG refers complainants
to OAWP and OSC.
Office of Accountability and Whistleblower Protection Coordination
Among OAWP's responsibilities under the Accountability and
Whistleblower Protection Act of 2017, is the receipt, review, and
investigation of allegations of misconduct, retaliation, or poor
performance involving senior leaders; employees in a confidential,
policy-making position; or supervisors accused of whistleblower
retaliation. The OIG is conducting a review of VA's implementation of
the Act, which also includes OAWP's first two years of operations and
expects to publish a report in September.
OIG hotline staff may refer complainants to OAWP who are seeking
assistance. Similarly, OAWP staff refer complaints that are more
appropriately addressed by the OIG, such as allegations of serious
criminal misconduct, to the OIG's hotline.
Office of Special Counsel
OSC is a Federal agency with authority to review allegations of
prohibited personnel practices, including reprisal for whistleblowing.
The OIG has designated our Counselor's office as the liaison to OSC.
That office coordinates any action the OIG may take on the underlying
allegations from the whistleblower and provides information to OSC.
CONCLUSION
The OIG values whistleblowers and the information they provide as
it helps explore areas for potential oversight of VA. It is incumbent
upon VA stakeholders to protect whistleblowers from retaliation and
foster an environment where no one fears the consequences of reporting
any concern, problem, or ideas for potential improvement. The OIG
encourages all whistleblowers to contact us with their concerns and
will treat them with respect, dignity, and in confidence to the
greatest extent possible.
Mr. Chairman, this concludes my statement, and I would be pleased
to answer any questions you or other Members of the Subcommittee may
have.
Prepared Statement of Henry J. Kerner
Good evening Chairman Pappas, Ranking Member Bergman, and esteemed
Members of the Committee. Thank you for holding today's hearing on the
importance of whistleblowers and how Federal agencies, such as mine,
work to protect them.
The Office of Special Counsel (or OSC) was created as part of the
Federal civil service reforms of the late 1970s with the principal
purpose of upholding the Federal merit system by protecting Federal
workers from prohibited personnel practices (or PPPs) and providing a
secure channel to receive disclosures of wrongdoing within the Federal
government. Because of this important mission, in 1989 Congress further
established OSC as a unique, independent agency, detached from partisan
pressures. OSC's independence is essential to our work defending the
Federal merit system and protecting whistleblowers from retaliation.
And I am proud that OSC's successes in protecting whistleblowers
continues to encourage individuals to come forward and expose waste,
fraud, and abuse in the government.
To quote Senator Chuck Grassley, Chairman of the Senate
Whistleblower Caucus, ``Whistleblowers are our first line of defense
against problems in government. They bravely shine the light on fraud,
waste and abuse so government can function better for the people it
serves.'' But without strong protections from the retaliation too many
whistleblowers face, that first line of defense fails. OSC serves as a
shield for Federal whistleblowers, holding agencies accountable and
protecting whistleblowers from retaliatory actions. Our work enables
future whistleblowers to feel secure when disclosing wrongdoing.
It is important to prevent retaliation from occurring in the first
place by creating a culture that recognizes the value of
whistleblowers. OSC provides robust outreach and training to agencies
to help them understand the importance of whistleblowers and to attempt
to prevent retaliation before it begins. We view the agencies that we
interact with as partners, not adversaries, and our goal is to work
with agencies like the Department of Veterans Affairs (VA) to address
the issues that arise between whistleblowers and the agencies they work
for.
As we heard in the Committee's June 25th hearing, unfortunately,
retaliation does occur. And when it does, OSC works to make the
whistleblower whole again. Not only does our intervention on behalf of
individuals subjected to retaliation provide relief to those
individuals, it helps to restore confidence in the merit system.
OSC is a primary channel for individuals to file disclosures and
complaints of retaliation. For the past few years, OSC has received
nearly 6,000 new filings per year from Federal employees either
identifying wrongdoing or seeking relief from retaliation and other
PPPs. VA employees have accounted for a significant portion of the
roughly 6,000 new cases filed with OSC each year-comprising
approximately 35 percent of all matters filed. Because OSC provides
both a secure channel for whistleblowers to disclose government
wrongdoing and protects individuals against retaliation and other PPPs,
there are two distinct processes that VA employees can utilize when
working with OSC. In both of these processes, OSC does not represent
the whistleblower or complainant. Instead, OSC is acting to protect the
merit system and hold Federal agencies accountable for any wrongdoing.
I am going to start by describing OSC's process for disclosures of
government wrongdoing. Similar to an Inspector General's office, OSC
provides a safe channel for VA employees to disclose information that
the person reasonably believes evidences one or more categories of
wrongdoing. OSC is authorized to receive disclosures of wrongdoing that
describe a violation of law, rule, or regulation, gross mismanagement,
gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
Once OSC receives a disclosure, it is assigned to an attorney. OSC
does not itself investigate the disclosure, but instead reviews the
whistleblower's filing to determine if there is a substantial
likelihood of its veracity. By statute, OSC has 45 days to either refer
the disclosure for investigation to the head of the subject agency or
close the case, during which time the assigned attorney speaks with the
whistleblower and reviews any documents or information the
whistleblower provides.
To refer the disclosure, OSC must determine there is a substantial
likelihood that the information provided is evidence of one of the
statutory categories of wrongdoing mentioned earlier. Disclosures that
do not meet the substantial likelihood standard are closed, and the
whistleblower receives a letter, and often a phone call, from the
assigned attorney explaining OSC's rationale.
If the disclosure meets the substantial likelihood threshold, it is
referred to the head of the subject agency, who is required by statute
to initiate and complete an investigation within 60 days. Generally,
agencies request additional time to complete the investigation, which
are granted on a case-by-case basis.
Once the agency's investigative report has been completed, OSC acts
as a quality control check, ensuring that the whistleblower's
disclosure was actually investigated and that the problems identified
are being addressed. Equally important, at this stage OSC provides the
whistleblower an opportunity to review the report and provide comments.
The Special Counsel determines whether the report meets all the
statutory requirements and whether the findings appear reasonable. The
report, the whistleblower's comments, and a cover letter by OSC stating
OSC's determination are then sent to the President and appropriate
Congressional Committees.
OSC's processing of PPP complaints is quite different, more
extensive, but equally important to creating a strong culture of
protecting whistleblowers. When a VA employee files a complaint of a
PPP such as retaliation for whistleblowing, OSC conducts an initial
review for jurisdiction. If it is determined that OSC has jurisdiction,
the complainant is assigned an attorney or investigator who will work
with him or her throughout the process. Importantly, OSC works hard to
make that initial introduction as soon as possible, so that the
complainant has an immediate point of contact for the case. OSC then
begins reviewing the complaint, along with any additional evidence
provided by the complainant. Because these reviews are time intensive,
OSC maintains regular communication about its progress of the case with
the complainant.
As with any investigation, there are triggering points to determine
if further work is appropriate or if the investigation should be
closed. For OSC's PPP investigations, one of those initial triggering
points is determining whether the complainant has alleged a PPP as
defined by the statute and whether investigation beyond what is
contained in the complaint would yield a prosecutable PPP. If OSC
determines that there is nothing more that we can do for the
complainant, we send a predetermination letter explaining to the
complainant that, based on the information received so far, OSC is
unable to proceed and intends to close the case. Importantly, OSC's
letter provides the complainant with time to respond with additional
information that will be reviewed before a final decision is made. We
work hard to make sure that even if we are unable to help a
complainant, he or she is fully heard and feels respected while going
through our process.
If the case is not closed after the initial review, OSC conducts a
more intensive, neutral, fact-finding investigation into the PPP
claims. Throughout this process, as OSC works with the complainant or
the complainant's counsel, there may be opportunities to settle their
claims with the agency or refer the case to OSC's own Alternative
Dispute Resolution (ADR) program to mediate a resolution for the
complainant. In certain cases, where the personnel action is
particularly harmful, such as a removal, OSC may seek to stay the
action to prevent it from taking effect. OSC typically attempts to
obtain an informal stay from the subject agency, and if unsuccessful,
OSC may seek a formal stay from the Merit Systems Protection Board
(MSPB), when-unlike now-there is at least one board member serving.
Upon conclusion of the investigation, if OSC is unable to resolve
the complaint through settlement or ADR, OSC may pursue corrective or
disciplinary action, or both, against parties responsible for the
retaliation through litigation before the MSPB, or, if no further
action is warranted, close the case.
Much of OSC's work overlaps with that of the agencies represented
by the other witnesses on the panel today, particularly the Inspector
General and the VA's Office of Accountability and Whistleblower
Protection. OSC does, however, provide distinct benefits to both
individuals disclosing wrongdoing and those who have been subjected to
retaliation or other PPPs. For example, when a whistleblower discloses
wrongdoing to OSC, if their disclosure is referred, the VA is
statutorily required to investigate. In addition, OSC's process
provides the whistleblower an opportunity to comment on and review the
agency's report. On the PPP side, OSC's independent nature provides an
additional layer of protection to complainants who may be afraid that
the information or documents provided by the whistleblower will be
shared with their agency. In addition, as the agency charged with
conducting PPP investigations, OSC has its own enforcement authority
and ability to prosecute cases before the MSPB.
No matter which process at OSC an individual uses, OSC focuses on
protecting these brave whistleblowers and the merit system. This is
especially true in regard to our veterans. We do our part by allowing
the employees who care for these veterans to perform their jobs to the
best of their abilities-and without fear of retaliation. The VA is our
number one customer, and the most recent former VA secretary was the
first department head that I met with upon taking office.
OSC and the VA continue to maintain a positive working
relationship. Together, we have made significant strides in producing
favorable outcomes for whistleblowers. But difficulties persist. We
continue to see a very high level of cases (about one-third of our
workload) just from VA employees. We also strive to improve our
collaboration on matters involving appropriate VA liaison designations,
timely document productions, and efforts to more efficiently resolve
meritorious cases. OSC is committed to working through these issues
with the VA and is intent on maintaining our ongoing productive
dialogue with various levels of VA leadership, all the way down from
the secretary, the General Counsel, and their staffs.
Whistleblowers play a fundamental role in the effective and
efficient use of taxpayer resources, protecting the health and safety
of our veterans, and ensuring a positive work environment for
employees-especially in agencies as large as the VA. We look forward to
continuing our constructive conversations with the VA to ensure that
whistleblowers are protected so that the VA can best serve our Nation's
veterans.
Thank you for holding this important hearing, and I look forward to
answering any questions you may have.
Prepared Statement of Tristan Leavitt
Good afternoon, Chairman Pappas, Ranking Member Bergman and Members
of the Subcommittee. My name is Tristan Leavitt and I am the General
Counsel of the U.S. Merit Systems Protection Board. Because there are
no Senate-confirmed Members of the Board, I am also serving as the
acting chief executive and administrative officer of the agency in
accordance with the MSPB's Continuity of Operations Plan.
Thank you for this opportunity to discuss the role of the MSPB in
safeguarding the Federal merit principles, including the agency's role
in the adjudication of whistleblower retaliation cases. As requested,
my testimony will focus broadly on the process by which whistleblower
cases are brought before the MSPB and the process for adjudicating
these cases. I have attached two appendices to my written statement:
Appendix A is a flow chart which provides a visual overview of the
adjudication process for whistleblower appeals. Appendix B provides
data charts which show the numbers of Department of Veterans Affairs
appeals decided or dismissed for fiscal years 2015-2018 and the first
half of 2019.
This year marks the fortieth anniversary of the MSPB opening its
doors following the passage of the Civil Service Reform Act of 1978.
The Civil Service Reform Act was the first statute prohibiting
retaliation for employees of the Federal government. The law opened
with a series of findings, stating:
It is the policy of the United States that . . . the merit system
principles which shall govern in the competitive service and in the
executive branch of the Federal Government should be expressly stated
to furnish guidance to Federal agencies in carrying out their
responsibilities in administering the public business, and prohibited
personnel practices should be statutorily defined to enable Federal
employees to avoid conduct which undermines the merit system principles
and the integrity of the merit system[.]
The Civil Service Reform Act explicitly recognized the value of
whistleblowers. The ninth merit system principle it codified states:
``Employees should be protected against reprisal for the lawful
disclosure'' of waste, fraud, abuse and gross mismanagement.
Although the Civil Service Reform Act was the first statute
expressly protecting whistleblowers from reprisal in the Federal
government, the concept of avoiding personnel actions for any reason
other than merit had evolved from the passage of the Pendleton Act of
1883 and the development of a civil service system. In that sense the
merit principles were not necessarily new, although previously not
codified.
The MSPB was established to fill an adjudicatory role that had
previously been filled by the Civil Service Commission. Its role in
whistleblower cases, as in other personnel matters it adjudicates, is
to provide a full and fair opportunity for both parties to develop a
full record on the issues, and then to hear and decide the matters
appealed based on the evidence submitted and in accordance with
applicable statutes and case law. As someone who previously received
many allegations of Executive Branch whistleblower retaliation when I
worked on Capitol Hill, I recognize that this mission established by
Congress is critical in helping distinguish which reprisal claims are
meritorious. The MSPB's responsibility is to spend the time and
resources carefully considering the allegations and the evidence to
reach as complete a conclusion as possible.
This year also marks the thirtieth anniversary of the Whistleblower
Protection Act of 1989, which changed the Special Counsel from an
investigatory and prosecutorial office inside the MSPB to an
independent agency in its own right, the Office of Special Counsel. OSC
investigates claims of prohibited personnel practices in the Executive
Branch, such as whistleblower retaliation. The MSPB plays the same role
for OSC today as it did when the Special Counsel was part of the MSPB,
and is the forum before which OSC litigates if they believe a
prohibited personnel practice occurred.
Those particular prohibited personnel practices are found in 5
U.S.C. Sec. 2302(b)(8) and (b)(9), and prohibit reprisal against an
employee or applicant for employment based on different types of
protected activity. Under the statute, in order to receive corrective
action in a reprisal claim, the appellant must demonstrate that: (1) he
or she made a protected disclosure; (2) the agency has taken or
threatened to take a personnel action against him or her; and (3) his
or her protected disclosure was a contributing factor in the personnel
action. However, even after a finding that a protected disclosure was a
contributing factor in the personnel action, corrective action is not
granted under the law if the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel action
in the absence of the disclosure.
Outside of cases brought by OSC, which are relatively few due to
OSC's ability to informally obtain corrective action, the MSPB hears
two types of whistleblower cases. The first type of whistleblower case
is called an ``otherwise appealable action.'' An otherwise appealable
action appeal involves an adverse personnel action that is directly
appealable to the Board, such as a removal, reduction in grade or pay,
or suspension of more than 14 days. In such an appeal, both the
appealable matter and the claim of reprisal for whistleblowing will be
reviewed by the MSPB. The claim of whistleblower retaliation is termed
an ``affirmative defense''-that is, if that agency proves that it has
met the evidentiary standard for taking the action, the appellant may
attempt to prove that the agency took the action in reprisal for his or
her protected whistleblowing activity.
The second type of whistleblower case is those cases in which the
individual has filed a complaint with OSC but OSC has not sought
corrective action on the individual's behalf. This is called an
``individual right of action,'' or ``IRA,'' appeal. Most of those cases
surround personnel actions that are not directly appealable to the
Board-for example, a suspension under 14 days or a reassignment with no
reduction in pay or grade. In such circumstances, the appellant is
required to exhaust the administrative remedy of first filing a
complaint with OSC. In an IRA appeal, the Board will not decide any
aspect of the challenged personnel action other than its connection
with the claim of reprisal for whistleblowing.
In both IRAs and otherwise appealable actions the proof required is
the same, but in an otherwise appealable action the MSPB's jurisdiction
over the matter arises from the personnel action itself and not
directly from the claim of whistleblower reprisal. In connection with
both forms of appeal, an administrative judge may grant a stay of the
personnel action at issue under appropriate circumstances. Similarly,
if OSC finds that there are reasonable grounds to believe that a
personnel action was taken, or is to be taken, as a result of a
prohibited personnel practice, the Special Counsel may request that any
member of the Board order a 45-day stay. Such a stay may also be
renewed upon application. Needless to say, this authority has been
significantly complicated by the lack of any current sitting Board
members.
That said, despite the lack of a Board quorum since January 2017,
the 60 or so MSPB administrative judges continue to hear and adjudicate
cases. Of the 5,447 cases administrative judges decided in FY 2018,
approximately one-fifth were from VA employees. The MSPB has decided an
average of about 180 IRA claims from VA employees for the past three
fiscal years, and is on track to decide approximately the same number
in FY 2019.
In closing, one general trend I do want to note that is not
specific to the VA is the increasing complexity of both whistleblower
complaints and their adjudication. This is the result of a combination
of many factors, including decisions issued by the Federal Circuit
Court of Appeals and recently-enacted legislation, such as the
Whistleblower Protection Enhancement Act of 2012. It is also
increasingly rare to see a case in which the appellant asserts that he
or she made a single disclosure, in retaliation for which the agency
allegedly took just one personnel action. Rather, the typical case
involves multiple allegations of several instances of alleged
whistleblowing and several alleged retaliatory personnel actions.
Because the multi-part test for jurisdiction over and proof of the
claims must be applied to each alleged protected disclosure,
whistleblower appeals are often difficult and time-consuming to hear
and decide. Nevertheless, I believe the MSPB understands that Congress,
the Executive Branch, and the American public are counting on it to be
the front lines of sorting through these issues. Accordingly, I know
the MSPB aspires to give full and fair consideration to each appeal in
accordance with applicable statutes and case law.
Again, thank you for the opportunity to appear before you today. I
am happy to address any questions you may have.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]