[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
       

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                  Available via http://www.govinfo.gov
                  
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                     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\
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    \1\ P.L. 101-12, April 10, 1989.

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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.
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    \2\ The OIG is actively hiring to further expand our oversight 
activities.
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    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\
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    \3\ P.L. 115-41, June 23, 2017.
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    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:
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    \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.
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    \7\ Use of Not Otherwise Classified Codes for Prosthetic Limb 
Components, August 27, 2018.

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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.
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