[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]





                                




 
                         TRUST IN TRANSPARENCY:


                       HOLDING VA ACCOUNTABLE AND


                       PROTECTING WHISTLEBLOWERS

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       THURSDAY, NOVEMBER 2, 2023

                               __________

                           Serial No. 118-35

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
       
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                    Available via http://govinfo.gov
                    
                    
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             U.S. GOVERNMENT PUBLISHING OFFICE 
 54-221          WASHINGTON : 2024
           
                    
                    
                    
                    
                    
                    
                     COMMITTEE ON VETERANS' AFFAIRS

                     MIKE BOST, Illinois, Chairman

AUMUA AMATA COLEMAN RADEWAGEN,       MARK TAKANO, California, Ranking 
    American Samoa, Vice-Chairwoman      Member
JACK BERGMAN, Michigan               JULIA BROWNLEY, California
NANCY MACE, South Carolina           MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana   CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa       FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina    SHEILA CHERFILUS-MCCORMICK, 
C. SCOTT FRANKLIN, Florida               Florida
DERRICK VAN ORDEN, Wisconsin         CHRISTOPHER R. DELUZIO, 
MORGAN LUTTRELL, Texas                   Pennsylvania
JUAN CISCOMANI, Arizona              MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona                DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas                    GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia        NIKKI BUDZINSKI, Illinois

                       Jon Clark, Staff Director
                  Matt Reel, Democratic Staff Director

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

               JENNIFER A. KIGGANS, Virginia, Chairwoman

AUMUA AMATA COLEMAN RADEWAGEN,       FRANK J. MRVAN, Indiana, Ranking 
    American Samoa                       Member
JACK BERGMAN, Michigan               CHRIS PAPPAS, New Hampshire
MATTHEW M. ROSENDALE, SR., Montana   SHEILA CHERFILUS-MCCORMICK, 
                                         Florida

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 
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                         C  O  N  T  E  N  T  S

                              ----------                              

                       THURSDAY, NOVEMBER 2, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jennifer A. Kiggans, Chairwoman....................     1
The Honorable Frank J. Mrvan, Ranking Member.....................     2

                               WITNESSES
                                Panel 1

Mr. Bruce P. Gipe, Acting Assistant Secretary, Office of 
  Accountability and Whistleblower Protection, U.S. Department of 
  Veterans Affairs...............................................     4

        Accompanied by:

    Mr. Eric Calhoun, Director, Investigations Division, Office 
        of Accountability and Whistleblower Protection, U.S. 
        Department of Veterans Affairs

    Mr. Ted Radway, Executive Director, Investigations and Acting 
        Executive Director, Compliance and Oversight Directorate, 
        Office of Accountability and Whistleblower Protection, 
        U.S. Department of Veterans Affairs

Ms. Emilee Collier, Chief, Investigation and Prosecution 
  Division, Office of Special Counsel............................     6

Mr. Thomas Costa, Director, Education, Workforce, and Income 
  Security, Government Accountability Office.....................     7

                                Panel 2

Mr. Tristan Leavitt, President, Empower Oversight................    19

Ms. Samantha Feinstein, International Director and Staff 
  Attorney, Government Accountability Project....................    21

Mr. Joe Spielberger, Policy Counsel, Project On Government 
  Oversight......................................................    22

Mr. Paul Pearson, Vice President, Whistleblowers of America......    24

                                APPENDIX
                    Prepared Statements Of Witnesses

Mr. Bruce P. Gipe Prepared Statement.............................    35
Ms. Emilee Collier Prepared Statement............................    39
Mr. Thomas Costa Prepared Statement..............................    41
Mr. Tristan Leavitt Prepared Statement...........................    60
Ms. Samantha Feinstein Prepared Statement........................    62
Mr. Joe Spielberger Prepared Statement...........................    63
Mr. Paul Pearson Prepared Statement..............................    69


                         TRUST IN TRANSPARENCY:



                       HOLDING VA ACCOUNTABLE AND



                       PROTECTING WHISTLEBLOWERS

                              ----------                              


                       THURSDAY, NOVEMBER 2, 2023

             U.S. House of Representatives,
      Subcommittee on Oversight and Investigations,
                            Committee on Veterans' Affairs,
                                                   Washington, D.C.
    The subcommittee met, pursuant to notice, at 10:04 a.m., in 
room 360, Cannon House Office Building, Hon. Jen Kiggans 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Kiggans, Rosendale, Mrvan, Pappas, 
and Cherfilus-McCormick.
    Also present: Representative Obernolte.

      OPENING STATEMENT OF JENNIFER A. KIGGANS, CHAIRWOMAN

    Ms. Kiggans. Good morning. The committee will come to 
order. I want to welcome our witnesses. I also ask unanimous 
consent that Representative Obernolte will be able to 
participate in questioning. Hearing no objection, we will 
proceed.
    The first hearing I held as the chairwoman of this 
subcommittee was titled Accountability at VA, Leadership 
Decisions Impacting its Employees and Veterans. At that 
hearing, and at many other hearings over the past 10 months, my 
colleagues and I have stressed the importance of building a 
culture of accountability at the Veterans Affairs Department. 
It is clear that when accountability slips at VA, it is the 
veteran who suffers.
    The bipartisan VA Accountability and Whistleblower 
Protection Act of 2017 was an important step in the second 
largest Federal agency's accountability journey. The law gave 
the Secretary new tools to hold poor performing employees 
accountable and swiftly remove employees who are not carrying 
out VA's mission of putting veterans first. A culture of 
accountability cannot exist at the VA if their leadership 
continues to tolerate employees that harm veterans and harass 
fellow employees.
    The culture of accountability also cannot exist if VA 
employees are not empowered to speak out when they see this 
harm and harassment. That is why in addition to the 
disciplinary authorities created, the 2017 law established the 
Office of Accountability and Whistleblower Protection, or OAWP. 
OAWP was given the explicit task of investigating and making 
disciplinary recommendations concerning senior executives and 
whistleblower retaliators. It is broadly accepted that the 
first few years of OAWP's existence were an absolute failure. 
At best, OAWP was a completely ineffective organization. At 
worst, it was a tool used to retaliate against the same 
whistleblowers it was tasked with protecting.
    Last Congress, a bipartisan legislation that passed the 
House which would have taken away OAWP's investigative 
authority, was not considered by the Senate. This Congress, 
OAWP has confidently told my staff that things are much better 
now and that they have put the right people and policies in 
place.
    I do not doubt that OAWP has many good employees who are 
attempting to make things right. I also know that these 
employees are fighting an uphill battle. Many VA employees I 
engage with do not trust OAWP, and as a result, they are 
hesitant to engage with the Office. It is not hard to 
understand why these employees are hesitant. Many VA employees 
do not view OAWP as independent, as OAWP's leadership reports 
directly to the VA Secretary. VA employees know about OAWP's 
past failings, and the Office has not earned VA employees' 
trust. Many employees who have engaged with OAWP, quite simply, 
have not seen results.
    Also, VA whistleblowers have other avenues to ensure they 
receive necessary protections. The Office of Special Counsel, 
or OSC, has existed for more than 40 years and seems to do a 
decent job. OSC conducts investigations on almost every Federal 
agency, including almost as many VA investigations as OAWP. OSC 
also seems to get results. In 2022, they negotiated favorable 
actions with agencies in 12.5 percent of its prohibited 
personnel practice cases. By contrast, OAWP only recommended 
discipline in 3.4 percent of its cases.
    I know that OSC and OAWP have somewhat different missions, 
and I know the OSC has had decades to work out the kinks. I am 
still left wondering if OAWP's juice is worth the squeeze. 
OAWP's budget request this year is $30 million, only $4 million 
less than OSC's. Last Congress, this committee decided some of 
this 30 million could be better spent by OSC or in other ways 
that protect veterans and whistleblowers. I look forward to 
examining whether OAWP is money well spent to build a better 
VA. I am also eager to learn about how VA is working to ensure 
that all VA whistleblowers are heard, protected, and empowered 
to speak out free of retaliation.
    I appreciate our witnesses being here today to share their 
expertise on whistleblower protections at VA. I am looking 
forward to our discussion this morning. With that, I now 
recognize Ranking Member Mrvan for his opening comments.

      OPENING STATEMENT OF FRANK J. MRVAN, RANKING MEMBER

    Mr. Mrvan. Thank you, Chair Kiggans. I appreciate you 
holding this hearing today. I also want to commend the work of 
the subcommittee on whistleblower issues over the last two 
Congresses under the leadership of my colleague Representative 
Pappas. I am pleased to continue our robust oversight of the 
Office of Accountability and Whistleblower Protection, or OAWP, 
at the Department of Veteran Affairs.
    Whistleblowers are unsung heroes of our government that 
expose corruption, abuse, fraud, and waste. Reporting evidence 
of wrongdoing from the inside is a courageous task, and 
whistleblowers often risk their livelihoods to expose critical 
issues. Their actions are paramount in holding the government 
accountable, and whistleblowers should be commended for the 
courage it takes to come forward. VA is entrusted with caring 
for our Nation's veterans. VA employees must feel empowered to 
call out problems, including wrongdoing. Managers need to be 
trained on rules and policies so they are also empowered to 
create and foster an open and transparent culture which 
benefits everyone from the public, to staff, to veterans that 
engage with VA.
    Over many decades, Congress has authorized important 
institutions which are charged with the oversight and 
investigative authority with administrating whistleblower 
protection laws and with holding the Federal Government 
accountable. We have the VA Office of Inspector General (OIG), 
the Office of Special Counsel, and the Government 
Accountability Office (GAO) as longstanding parts of that 
oversight and accountability structure.
    In 2017, Congress established another layer by creating the 
OAWP in response to a very serious and catastrophic 
accountability failure, which is the Phoenix Wait Time scandal. 
However, OAWP quickly failed at its mission due to egregious 
abuses by leadership in the former administration, which were 
investigated by the Inspector General (IG). Current leadership 
has had an uphill battle rebuilding the OAWP into an office 
that could possibly meet the mission established by Congress.
    From my perspective, OAWP has done a commendable job. It is 
now staffed up with dedicated individuals who are taking its 
responsibility seriously. We are starting to see outputs that 
show the Office can and wants to do the job. From our oversight 
work, we can see significant progress on the investigations 
side of the Office. Over the past year, OAWP has worked to 
clear the backlog of complaints. Improvements have been made in 
case timelines and referrals. Now we are starting to see what 
is possible on the accountability side. We need more fidelity 
on how VA is implementing OAWP's recommendations and 
understanding if this work is leading to institutional change.
    OAWP has a mandate to advise the Secretary on 
accountability matters and to do data analysis to identify 
trends and issue reports. We have seen some of the results of 
efforts in these areas, but there are a lot of areas that would 
benefit from the analytics work, such as the settlement 
agreements ensuring that disciplinary actions are being used 
equitably across the VA, and how the Department can further 
build a culture that values accountability. From reading the 
testimony of the organizations on the second panel, it is clear 
that a trust gap still exists between the whistleblower 
community and OAWP. I know OAWP is working in earnest to bridge 
the gap, but I would like to discuss a few more specifics about 
ongoing concerns with both VA and the good government groups.
    I know there have been questions since the 2017 law was 
passed about ways to enhance OAWP's independence, and there are 
also fundamental questions about its purpose and how it should 
or should not differ from other oversight investigations such 
as the IG, the OSC. I hope we can have a thoughtful discussion 
on these and other issues.
    Whistleblower protection and accountability are different 
sides of the same coin. They should not be in conflict. We 
should work hard toward accountability so that employees do not 
have to become whistleblowers. They should be able to speak up 
about concerns and have those concerns taken seriously by 
management. This is the goal we all should be working toward 
because that is what we owe to the veterans. With that, I look 
forward to hearing from our witnesses and I yield back my time.
    Ms. Kiggans. Thank you, Ranking Member Mrvan. We will now 
turn to witness testimony. Testifying before us today on our 
first panel, we have Mr. Bruce Gipe, who is Acting Assistant 
Secretary at the Office of Accountability and Whistleblower 
Protection. We have Mr. Eric Calhoun, Director of the 
Investigations Division at the Office of Accountability and 
Whistleblower Protection. We have Mr. Ted Radway, Executive 
Director of Investigations and Acting Executive Director of 
Compliance and Oversight at the Office of Accountability and 
Whistleblower Protection. We have Ms. Emilee Collier, Chief of 
the Investigations and Prosecution Division at the Office of 
Special Counsel. We have Mr. Thomas Costa, Director on the 
Education, Workforce, and Income Security Team at the 
Government Accountability Office.
    On our second panel, which will be next, we have Mr. 
Tristan Leavitt, President of Empower Oversight, Ms. Samantha 
Feinstein, International Director and Staff Attorney, 
Government Accountability Project, Mr. Joe Spielberger, Policy 
Counsel at the Project on Government Oversight (POGO), and Mr. 
Paul Pearson, Vice President, Whistleblowers of America.
    For the first panel will the witnesses please stand and 
raise your right hand, and we will swear you in.
    [Witnesses sworn.]
    Ms. Kiggans. Thank you. Let the record reflect that the 
witnesses answered in the affirmative. Mr. Gipe, you are now 
recognized for 5 minutes to provide your testimony.

                    STATEMENT OF BRUCE GIPE

    Mr. GIPE. Thank you. Good morning, Chairwoman Kiggans, 
Ranking Member Mrvan, and distinguished members of the 
subcommittee, the Office of Accountability and Whistleblower 
Protection appreciates your dedication to protecting 
whistleblowers and strengthening VA's workforce. Our former 
Assistant Secretary, Maryanne Donaghy, recently retired, but 
her passion for our mission and hard work continues to be a 
major factor in our success. In her absence, I am honored to be 
here testifying before you today.
    In 2019, when the Inspector General released his report, 
OAWP was an agency in crisis. That is no longer the case. We 
have implemented the IG's recommendations and made significant 
improvements, which are resulting in concrete benefits for the 
Department and the veterans we serve. We have greatly improved 
the quality of our investigations and our recommendations for 
discipline. In Fiscal Year 2021, 32 percent of our 
recommendations were not accepted by VA management. By 
contrast, this year, all, each and every recommendation we made 
has been accepted by VA management in some form, excluding 
those cases where someone retired prior to discipline.
    We have also improved the timeliness of our investigations, 
cutting the average number of days it takes to do an 
investigation from 251 days in 2021 to just 82 days this year. 
Last year, we established the Investigative Attorney Division. 
Our attorneys help us identify issues, properly scope 
investigations, and provide legal sufficiency review for our 
reports of investigation.
    The Division also addresses an important issue that has 
been raised before in this forum, our independence from the 
Office of General Counsel (OGC). While OGC serves as the 
Department's legal counsel, they do not review our 
investigations or our recommendations for discipline.
    Training is another major part of OAWP's mission. We lead 
the whistleblower training required by statute for all VA 
employees, and we provide supplemental in person training upon 
request, and we receive a lot of those requests. We also led 
the Department's successful effort to receive recertification 
under OSC's 2302(c) Certification Program.
    We recently improved service to VA employees by 
establishing a whistleblower navigator. As the title suggests, 
this position helps potential whistleblowers navigate the 
various choices available to an employee raising concerns or 
reporting wrongdoing. We continue to operationalize the 
portions of our statute not tied to investigations. Under the 
Advice to the Secretary provision, we have produced a series of 
reports about how the Department can provide better services to 
veterans who have experienced military sexual trauma. The 
recommendations in these reports will have a direct impact on 
veterans and improve available services and care.
    We also recently conducted our inaugural climate review, 
which examines the extent to which a facility or office is 
fostering an environment where whistleblowers feel safe raising 
concerns. The information gathered will allow VA management to 
proactively address issues and create an environment that is 
safe for whistleblowers. Our Compliance and Oversight 
Directorate fulfills our statutory mandate to track and record 
oversight entity recommendations. We track more than 7,700 
individual recommendations, and we examine trends in OAWP 
complaints and patient care recommendations. We also track 
whistleblower settlement agreements. This work provides insight 
into potentially systemic issues that can be proactively 
addressed by the Department.
    These accomplishments are a credit to our dedicated and 
hardworking employees. I think they are the best in the Federal 
Government. The strength of our workforce is highlighted by our 
recent scores in the Federal All Employee Viewpoint Survey. 
OAWP received the highest Organizational Health Index scores 
and ranked as the most improved of all VA central offices.
    Chairwoman Kiggins, Ranking Member Mrvan, and distinguished 
members, I want to thank you for this opportunity to discuss 
our progress and our path forward. We are committed to 
partnering with you to help improve OAWP and the Department, 
and we look forward to any questions you have. Thank you.

    [The Prepared Statement Of Bruce Gipe Appears In The 
Appendix]

    Ms. Kiggans. Thank you very much. We are looking forward to 
hearing from the other members on the panel as well, but a vote 
has just been called in the House that we will need to go to, 
and so the subcommittee will stand in recess subject to the 
call of the chair. We will be back.
    [Recess]
    Ms. Kiggans. All right, we will resume where we left off. 
Let us see. Ms. Collier, you are recognized for 5 minutes to 
provide your testimony.

                  STATEMENT OF EMILEE COLLIER

    Ms. Collier. Good morning, Chair Kiggans, Ranking Member 
Mrvan, esteemed members of the subcommittee, and fellow 
panelists. Thank you for holding this important hearing on 
protecting the brave civil servants who blow the whistle at the 
Department of Veterans Affairs. The Office of Special Counsel 
is strongly committed to supporting veterans and to helping the 
VA create a positive whistleblowing culture for its employees. 
Ensuring that whistleblowers are empowered to speak up about 
potential misconduct without fear of reprisal enables the VA to 
best protect the health and safety of our veterans. Indeed, as 
we all know, whistleblowers are an indispensable resource for 
oversight entities like the VA's Office of Accountability and 
Whistleblower Protection, OSC, Congress, and other 
organizations seeking to promote good government and 
accountability.
    The statutes governing OSC's work allow us to support 
whistleblowers in three main ways. First, OSC provides a safe 
channel for making disclosures of wrongdoing. Second, OSC 
protects Federal employees from prohibited personnel practices, 
including retaliation for whistleblowing. Third, OSC provides 
training and stands as a partner with other Federal agencies 
and Congress in upholding the merit system. One noteworthy 
aspect of OSC's role as a safe channel for disclosures is the 
high degree of whistleblower involvement in our process. OSC 
relies on information provided by the whistleblower to 
determine whether an agency should investigate the alleged 
wrongdoing. Once we receive the whistleblower's disclosure, we 
make every effort to respond quickly to those concerns.
    In fact, OSC's disclosure unit decides whether an 
investigation is required within 45 days in virtually every 
case. If the allegations warrant further inquiry, the Special 
Counsel will refer the case to the head of the agency, who must 
investigate and provide a report to our office. OSC then gives 
the whistleblower an opportunity to review and provide comments 
on the report. After taking the whistleblower's input into 
account, the Special Counsel determines if the report is 
reasonable and statutorily sufficient.
    Finally, OSC provides that determination, the report 
itself, and the whistleblower's comments to the President and 
to Congress. OSC also provides an avenue for employees who file 
a complaint if they believe they have suffered a prohibited 
personnel practice, including whistleblower retaliation. OSC's 
process for handling these cases differs significantly from our 
disclosure work in that on the prohibited personnel practice 
side, our staff conduct the required investigations themselves. 
OSC has enforcement authority to pursue corrective and 
disciplinary action in these matters when it is appropriate, 
and our office has a highly effective alternative dispute 
resolution program, which also facilitates meaningful, often 
creative relief for employees who file with us.
    As a chief in OSC's Investigation and Prosecution Division, 
I am especially pleased to note that in each of the last 2 
fiscal years, staff working on prohibited personnel practice 
matters obtained record numbers of favorable actions, including 
individual and systemic relief, as well as disciplinary action. 
This combination of enforcement authorities and successful 
resolutions sends a strong message that OSC will conduct 
independent, objective inquiries in an effort to bolster 
whistleblower protections and the merit system as a whole.
    While it is imperative that OSC maintain its investigative 
independence, there are many opportunities for cooperation with 
other departments and agencies. Indeed, a key element of OSC's 
approach to assisting whistleblowers is our robust outreach and 
training program, whereby we train Federal managers and 
employees on all facets of OSC's mission. In the last fiscal 
year, OSC conducted the highest number of trainings in the 
agency's history, increasing our visibility among those who may 
need our assistance.
    In addition, OSC has regular meetings with representatives 
from OAWP, the VA's Office of the General Counsel, and Veterans 
Health Administration's Office of the Medical Inspector. During 
these meetings, we discuss individual cases that merit high 
level attention, as well as general issues that impact our 
work. Developing a good working relationship with the VA 
through open lines of communication has been critical in 
working toward our shared goal of promoting better government 
through transparency and accountability. We remain steadfast in 
our commitment to helping the VA and this committee provide the 
best possible service to veterans by ensuring that any reported 
wrongdoing receives appropriate consideration.
    VA employees are among the greatest patriots in Federal 
service as they have devoted their professional lives to 
serving veterans, and of course, many are veterans themselves. 
It is imperative that they feel supported in doing their jobs 
without fear of reprisal. I am here today on behalf of OSC to 
describe how our work contributes to that important goal. Thank 
you again for holding this hearing. I look forward to answering 
any questions you may have.

    [The Prepared Statement Of Emilee Collier Appears In The 
Appendix]

    Ms. Kiggans. Thank you, Ms. Collier. Mr. Costa, you are now 
recognized for 5 minutes to provide your testimony.

                   STATEMENT OF THOMAS COSTA

    Mr. Costa. Thank you. Chairwoman Kiggins, Ranking Member 
Mrvan, and members of the subcommittee, thank you for the 
opportunity to discuss our work looking at VA whistleblower 
retaliation.
    Federal employee whistleblowers can protect the government 
from fraud, waste, and abuse by reporting wrongdoing. However, 
whistleblowers may also risk reprisal from their agency for 
these disclosures. VA whistleblowers can choose to submit 
complaints of retaliation both internally through OAWP and 
their union, as well as externally through OSC and the Merit 
System Protection Board's appeals process. OAWP investigates 
misconduct against senior agency officials, and the independent 
OSC is responsible for investigating whistleblower retaliation 
and other prohibited personnel practices across the Federal 
Government. My statement is based on our May report as well as 
related preliminary observations from our ongoing work, and 
will address 1) OAWP whistleblower retaliation investigations, 
2) OSC's investigations of VA whistleblower retaliation, and 3) 
how VA resolves these cases using settlement agreements.
    First, the number of whistleblower retaliation cases that 
OAWP receives has increased since Fiscal Year 2020, though the 
number of other types of cases has also increased. 
Specifically, OAWP received almost 580 whistleblower 
retaliation cases in 2020 and 740 in 2023, more than a 25 
percent increase. We will continue to analyze this data in our 
ongoing work. Second, Paycheck Protection Program (PPP) cases 
arising from VA employees make up about one-third of OSC's 
workload. From fiscal years 2018 through 2022, over two-thirds 
of VA PPP cases involved allegations of whistleblower 
retaliation. However, unlike the increase in OAWP cases, the 
total number of VA whistleblower retaliation cases at OSC had 
generally decreased from about 900 to 515 over the last 5 
years. That said, the percentage of whistleblower retaliation 
cases with a favorable action for the complaints has increased 
from 3 to 10 percent, which, according to OSC officials, has 
also contributed to longer case times.
    If warranted, OSC recommends corrective action, such as 
back pay or damages, or it facilitates a settlement agreement 
between the parties. OSC cases can have multiple allegations 
that can each have a different closing disposition. However, 
OSC closed most cases due to insufficient evidence. Less than 1 
percent were closed due to a settlement agreement.
    Which brings me to my third point. Settlements can be 
initiated at any juncture in the complaint process. An official 
within the applicable VA office serves as a settlement official 
and decides on whether to proceed with negotiations. Once 
negotiations begin, VA's General Counsel provides the 
settlement official with legal counsel, while complainants can 
opt for legal or non-legal representation or represent 
themselves. Following an agreement, the settlement official and 
related officers monitor its implementation. This process 
largely mirrors that for employment discrimination allegations. 
However, according to VA officials, the Department does not 
have specific guidance for whistleblower retaliation 
settlements due to the absence of a statutory or regulatory 
mandate. In contrast, VA has guidance for employment 
discrimination settlement agreements in response to Equal 
Employment Opportunity Commission (EEOC) requirements.
    Regarding some of the data around settlement agreements, 
OAWP began tracking them in 2021. However, it does not have a 
mechanism currently to monitor how long it takes to negotiate a 
settlement, and we plan to follow up with OAWP about these 
aspects of the process as part of our ongoing work.
    As of September, VA had settled 71 whistleblower 
retaliation cases since they began tracking them. Most of the 
settlements included a monetary award of between $2,000 and 
$500,000 for the whistleblower, and they totaled around $5.2 
million. Additionally, the settlements may also have provided 
for salary adjustments or back pay. More than two-thirds of the 
settlements were filed with the Merit System Protection Board, 
suggesting many have gone through the appeals process. The 
remainder of the cases were filed with OSC, EEOC, VA's Office 
of Resolution Management, Diversity and Inclusion, and the 
Courts, with only one settlement addressing a complaint filed 
with OAWP.
    Most settlements address complaints involving Veterans 
Health Administration (VHA), the largest of VA's 
administrations, but complaints come from across VA's offices. 
Specifically, 59 of the 71 settlements addressed allegations at 
VHA, while two or more cases involved the Office of Information 
and Technology, VA Central Office, and OAWP itself. This 
completes my statement, and I look forward to answering your 
questions. Thank you.

    [The Prepared Statement Of Thomas Costa Appears In The 
Appendix]

    Ms. Kiggans. Thank you, Mr. Costa. We will now move to 
questions, and I yield myself 5 minutes first. Mr. Costa, what 
can you tell us about the volume of VA whistleblower 
retaliation investigations that are initiated through OSC? I 
know you spoke about it a little bit. How does that compare to 
OSC's caseload at other Federal agencies? In your remarks or 
answering questions, can you also just try to tease out a 
little bit more about why we need both? I know you mentioned 
about OSC is doing more with the kind of senior level cases, 
but, you know, is there like, a finite need for both of these 
organizations? It seems like they are duplicative in a lot of 
their responsibilities.
    Mr. Costa. Thank you. About one-third of OSC's caseload is 
from VA, so it is a significant portion of their caseload. VA, 
of course, is the second largest Federal agency, so that is not 
terribly surprising that it would be a significant portion. The 
number of total cases for the years, VA whistleblower cases, 
for the 3 years that we have in common for both OSC and OAWP is 
around 1,225 cases a year split between the two agencies. That 
number has gone up for OAWP as the number has gone down for 
OSC. The total numbers have remained relatively stable during 
that timeframe. The total number of OSC cases involving VA 
whistleblower over the last 5 years was 3,700. As I mentioned, 
most of those PPP cases involve VA whistleblower retaliation 
allegations.
    Regarding the duplicative nature, there certainly is a 
duplicative nature to these two agencies. We have not looked 
into whether or not that duplication is warranted or not. It 
gives VA personnel multiple options to pursue their cases. 
There are some subtle differences that we are still looking 
into as part of our ongoing work as to when it might be more 
advantageous to go one route versus another. In addition, you 
also have the OIG, and in some cases, you also have Office of 
Resolution Management Diversity & Inclusion (ORMDI) where 
whistleblowers could also raise their concerns.
    Ms. Kiggans. Thank you. Mr. Gipe, could you also just 
address that issue of, you know, why we need the two separate 
offices?
    Mr. Gipe. Excuse me. Absolutely. First of all, I would 
start with I think this is what Congress put in place, and they 
wanted to have more options rather than fewer options. I think 
that was a wise thing. I think if you look at the past 2 years 
and we talked about the rough start OAWP had at the beginning, 
and you spoke about trust in your opening statement, I think 
you can see that the trust is we are growing that trust. The 
good work we are doing is helping growing that trust.
    I think it is a good option to have more options, but it is 
also a very good option for our employees who want to come to 
us. If you look at our stats, because we have increased both 
the recommendations that are being taken and we have increased 
the time that--decreased the time that it is taken to do 
investigations, we are working faster and better. Also, OSC 
tends to focus on corrective action, and we have, until now, 
focused more on accountability. I think that is another 
important part.
    The last thing I will say is OSC looks at PPPs, 
whistleblower retaliation, PPPs, but we also look at senior 
leader misconduct and poor performance and retaliation by a 
supervisor. Our mandate's a bit larger. Then that is only one 
side of our house. We have a whole other side of the house that 
does other things. I think we add a lot of value. Thank you.
    Ms. Kiggans. Thank you very much. Mr. Calhoun, can you 
explain the reasons a VA whistleblower or victim of 
whistleblower retaliation would want to contact OAWP rather 
than OIG or OSC?
    Mr. Calhoun. Yes, ma'am. Thank you for the question. 
Congress gave us different authorities. Our authority is 
broader than OSC's when it comes to protecting whistleblowers 
within the VA. For example, they receive their authority from 
the Civil Service Reform Act, the Whistleblower Protection Act. 
None of those laws give them the authority to investigate 
general misconduct.
    The burden that whistleblowers carry to prove their case is 
quite high. The next panel will be addressing that, as they 
have done historically, seeking stronger protections for 
whistleblowers. We have the ability to use VA policies to make 
sure that even if they do not reach that threshold of a 
meritorious whistleblower retaliation case, that VA supervisors 
and senior leaders are not violating policies in going after 
whistleblowers. Thank you, ma'am.
    Ms. Kiggans. Thank you. My time is up, so I will yield to 
Ranking Member Mrvan for 5 minutes.
    Mr. Mrvan. Thank you, chairwoman. Mr. Costa, the GAO's 
testimony touches on the settlement agreement process. We have 
heard concerns from individuals that VA was not meeting the 
terms of settlement agreements, leaving employees with little 
resources. To what extent did GAO come across this issue during 
its review? Could the GAO look at this issue in its plan to 
follow up work?
    Mr. Costa. Thank you, Congressman. We are actually still in 
the middle of our review right now, so we have not actually 
delved too deeply into that particular issue. We do have copies 
of the 71 settlement agreements that I mentioned, and we are 
starting to comb through those. We also hope to be able to talk 
to VA officials that participated in that process, as well as 
some of the complainants who participated in that process to 
get an idea of where the pain points might be in the process. 
We have not yet been able to do that work. We are looking 
forward to doing that in the coming months.
    Mr. Mrvan. Okay. Mr. Gipe, you are aware of the issue I am 
talking about. I know that the OAWP just began monitoring 
settlement agreements in 2022. To what extent does this 
monitoring include ensuring that VA is upholding its end of the 
agreement?
    Mr. Gipe. I am going to defer to my colleague, Mr. Radway, 
since he is the one who takes care of that. Sorry, got it?
    Mr. Radway. Thank you. Currently, that is a future state 
that we would like to attain, Congressman. Right now, we are 
just tracking the settlement agreements and whether the basic 
terms, such as restoration of pay or leave have been fulfilled. 
We do not really have--there is a question as to whether we 
have statutory authority to go further than that. We are not 
quite tracking whether the settlement has been fully 
implemented or not yet.
    Mr. Mrvan. Is there an entity that is tracking that to see 
that it is fully implemented?
    Mr. Radway. Each settlement agreement has a provision 
alerting the complainant where they can reach out to if they 
feel that the settlement agreement is not being fulfilled. 
Typically, the EEO complaints, for example, the complainants 
would reach out to our EEO office. There is no other office 
that is designated to tracking enforcement of the settlement 
agreements.
    Mr. Mrvan. One last follow up. Then your office in the 
future State will have what role, in your vision?
    Mr. Radway. In our vision, we would be tracking enforcement 
of the settlement agreements, and a complainant could reach out 
to OAWP if they feel that the settlement agreement has not been 
fulfilled according to the terms of the agreement.
    Mr. Mrvan. Okay. Mr. Gipe, the Four Corners recently sent a 
letter to the VA requesting data about the non-Section 714 
authorities VA has used to take disciplinary action since 2017. 
VA's response was that it did not have this information broken 
down by authority and that its confidence in historical records 
was low. Although this was frankly not surprising, it is not 
acceptable. What work is OAWP doing in the data analysis space 
that might give us a better data moving forward?
    Mr. Gipe. With 714, you know, the Secretary decided to stop 
using it because it had been chipped away at by the Merit 
Systems Protection Board (MSPB), the Federal Circuit, and the 
Federal Labor Relations Authority (FLRA). We are still taking 
actions--the VA is still taking actions, but it is under Title 
5 rather than title--rather than 714.
    However, for our part of what we do is the 714 hold is 
still something that is important to protect whistleblowers. 
Even though we are not using 714, we have done an internal 
policy to make sure that we are achieving the same goals, which 
is to protect whistleblowers. Then I will let Ted answer 
specifically about any numbers. We do not track numbers. I 
think that is big VA does that.
    Mr. Radway. Yes, we are no longer requesting 714 holds, so 
we do not track. VHA would have numbers. We could get numbers 
for you, Congressman, if you are looking for specifics on 714 
holds in the past.
    Mr. Mrvan. Absolutely. With that, I yield back.
    Ms. Kiggans. Thank you, Mr. Mrvan. The chair now yields 5 
minutes to Mr. Obernolte for questions.
    Mr. Obernolte. Thank you very much, Chairwoman Kiggins, and 
thank you to everyone for allowing me to wave onto this 
subcommittee. This is an issue that is very near and dear to my 
heart. I represent a district with five major military 
installations and nearly 40,000 veterans. I think everyone in 
this room shares my opinion that they are entitled to the 
fulfillment of the promises that we have made to them when they 
volunteered their service to our country. I think we are all on 
the same team that way.
    One of the facilities that I represent is the Veterans 
Affairs Hospital in Loma Linda, which is in most respects an 
excellent facility. However, in recent years, whistleblowers 
have emerged to allege that there are supervisorial employees 
there that are creating a hostile work environment. Obviously 
this is something that we want to avoid because we want to 
attract the best and the brightest to care for our veterans. If 
we allow a facility to establish a reputation as somewhere that 
is not a good place to work, then we are not going to get the 
best care for our veterans there.
    An administrative board was convened to investigate this. 
They did a very thorough job. They interviewed 36 witnesses, 57 
hours of testimony, over 4,000 pages of documents. At the end 
of this, they recommended that the supervisorial employee in 
question be removed from employment at the VA. Okay? Far the 
system has functioned exactly as intended.
    However, unfortunately, nothing was done. Those 
whistleblowers came to my office earlier this year in 
understandable frustration about the fact that they had 
followed the rules, they had raised these concerns, a board had 
been convened, and then made a recommendation that was not 
followed by local administrative staff. When we looked into it, 
and Chairman Bost was great about partnering with my office, VA 
staff came out, interviewed these whistleblowers with me, and 
we were astonished to find out this is the third time this 
supervisorial employee had been investigated. He had been 
recommended for termination multiple times and yet nothing was 
done.
    I met with the director and what I was told is that the VA 
does not have the legal tools and authority necessary to follow 
through on that recommendation. I was a little astonished 
because obviously in 2017, Congress passed the VA 
Accountability and Whistleblower Protection Act, one of the 
pieces of legislation we have been discussing here in this 
hearing, for the express purpose of giving the VA the tools 
necessary to deal with situations like this. We are attempting 
to close some of the loopholes that were brought up. Chairman 
Bost, Chairwoman Kiggans, and I have partnered to introduce 
H.R. 4278, a bill that would give the VA more authority in this 
respect.
    I want to talk to you about why this situation exists and 
what we can do to fix it. Mr. Calhoun, I guess I will start 
with you. Or you can pass the baton if someone else is more 
appropriate, but what would you say? Does the VA have the tools 
to effectively discipline and if necessary, terminate employees 
in situations like the one I described?
    Mr. Calhoun. Thank you, Congressman Obernolte, for the 
question. I could only--I do not know the full circumstances. I 
believe the individual you are referring to is outside of our 
investigative authority. I have very limited knowledge on that. 
I would say in previous testimony I have heard Human Resources 
and Administration (HR&A) and OGC say that they believe they do 
have the tools they need to take appropriate actions in those 
cases, but I do not have enough information to discuss the 
specific matter you are referring to.
    Mr. Obernolte. Okay. Well, if you could follow up----
    Mr. Calhoun. Yes, sir.
    Mr. Obernolte [continuing]. that would be much appreciated, 
because if the answer is no, you do not have the tools that you 
need, we want to make sure that we equip you with the tools 
that you need to make sure situations like this do not develop 
in other facilities.
    Mr. Calhoun. Yes, sir.
    Mr. Obernolte. Mr. Gipe, the whistleblowers that I spoke 
with are understandably frustrated with this situation, and 
they expressed to me something that I found even more alarming, 
which is kind of a hopelessness that they had brought this 
situation to everyone's attention and nothing was done. Because 
it is a supervisorial employee, when a whistleblower raises 
their hand and says, something is wrong here, an investigation 
is conducted, their claim is substantiated, and yet nothing is 
done, they are fearful that that enhances the chance of 
retaliatory action against the whistleblower. I would share 
that too, if I were in their shoes, I would be afraid of that. 
What can be done to reassure whistleblowers like that 
retaliatory action will not take place if they come to OAWP 
with a complaint?
    Mr. Gipe. Thank you for that question. I would follow up a 
little bit on what Mr. Calhoun said. If wrongdoing does take 
place, if misconduct takes place, there are definitely the 
tools available across the Federal Government, including VA, to 
deal with that. I do believe, my understanding is the person 
that you are referring to is not within our jurisdiction. 
Still, I can give you more of an answer on your specific 
question, and we would be happy to give you briefings on any of 
the specific cases in a private setting.
    There are other things we can do to help improve the 
atmosphere and the culture of accountability there. It is a 
coincidence that this week we actually kicked off our second 
climate review, which again, looks at the atmosphere in a 
medical center to see if there is an appropriate atmosphere 
that people feel like they can raise allegations of wrongdoing. 
The climate review is a several step process. I believe that 
the survey went out this week, and will go for 2 weeks, and 
then we are doing our site visit in early December.
    What you should do is think about this a lot like the All-
Employee Viewpoint Survey. If you just get result--not you, but 
if, you know, the medical center gets results and just kind of 
looks at them, it does not help much. The results will show 
where there are weak points and opportunities for improvement. 
I think you can use those, the hospital can use those to make 
important changes. We can also increase our training there and 
make sure people know all the options they have coming to us, 
coming to OSC, going to OIG.
    If this was the Administrative Investigation Board (AIB) 
that I am thinking about, that you are talking about, that was 
not within our jurisdiction, it would be up to the responsible 
management official who was getting that to decide what 
discipline was appropriate.
    Mr. Obernolte. Right. Thank you. I see I am overtime. I 
want to emphasize we are all on the same team here, but we want 
to make sure that you have the tools necessary to set an 
environment where this does not happen again. Let us work 
together to make sure that that happens. I yield back, Madam 
Chair, thank you.
    Ms. Kiggans. Thank you very much, Mr. Obernolte. The chair 
now recognizes Mr. Pappas for 5 minutes.
    Mr. Pappas. Thank you very much, Madam Chair. I thank our 
panel for their points that they have made here today. I do 
appreciate how challenging it is to change the culture in a big 
agency like VA. I will say that after 6 years of the 
establishment of OAWP, I think it is clear to me that there are 
major shortcomings within the initial law that was passed, 
certainly with its implementation over the last 6 years, 
because we have seen repeated leadership changes, missed 
deadlines, and lack of accountability, especially when it comes 
to enforcement of those settlement agreements.
    We know that the Office of General Counsel plays a role in 
whistleblower issues, especially when it comes to 
implementation of these agreements. These agreements are 
binding, and they are signed by the Department and the 
whistleblower. Usually, VA agrees to take specific actions to 
reinstate and protect whistleblowers in these agreements.
    Unfortunately, this committee has documented instances in 
which OGC does not comply with agency agreements and takes 
months or years to respond to settlement offers made by 
whistleblowers or causes other problems for them. It is 
critical to note that since OGC is tasked with protecting the 
Department, it has an inherent conflict of interest, I believe, 
with whistleblower cases when it is advising OAWP.
    To address these concerns, I worked with then Ranking 
Member Mann on this subcommittee in the last Congress. We 
introduced a bipartisan bill, the Strengthening Whistleblower 
Protections at the VA Act. It was a bill that passed the House 
at that time. A key provision in this bill was providing OAWP 
with greater independence from VA leadership by establishing a 
separate Office for General Counsel for OAWP and would prevent 
the Department's OGC from directly or indirectly advising on 
OAWP cases.
    I am wondering, Mr. Gipe, if you can reflect on that 
provision. It is something that VA did not support in the last 
Congress. Can you talk about this principle of independence and 
whether or not that would make a difference here as we think 
about some accountability and protection for those that are 
coming forward with information to help serve our veterans 
better?
    Mr. Gipe. Yes, thank you for that question. Usually when I 
have heard issues raised about our independence, it really 
stemmed more from OGC being involved in our investigations and 
recommendations. We set up our own attorney division within 
OAWP to make sure that we are doing our own work and OGC has 
nothing to do with it. Then on the backside, they are the ones, 
as you mentioned, trying to work out a settlement in some 
cases.
    At this point, the way the law is written, we have our 
independence that way, but there is nothing where we are 
getting involved in the settlement agreement process. Usually 
there is the complainant, the agency, and OGC is representing 
the agency and trying to come to a settlement. We are just not 
involved in that part. I think the reason that VA, you know, 
opposed that provision was we thought we could take care of the 
other part with OGC staying out of our investigations.
    There is some language in the Leadership, Engagement, 
Accountability, and Development (LEAD) Act that I think talks 
about us maybe having more involvement in settlement 
agreements. We really think probably it makes the most sense 
for OGC and VA to be involved in the actual reaching an 
agreement, and then we could be tracking and maybe helping 
those if they feel like there is a breach of the settlement 
agreement after the fact.
    Mr. Pappas. Are there either provisions of that bill that I 
had mentioned, you mentioned another piece of legislation that 
is out there, other things that we can be doing to give you the 
tools you need to do your job better and to improve 
performance, because clearly there has been a lack of 
confidence in the numbers that we have seen over a lot of 
years.
    Mr. Gipe. Well, I think a couple of things. That first of 
all, I think our numbers show that there is a little bit more 
confidence in us because I think we have been doing good work. 
I think we continue to get more cases, and I think that is a 
good thing. Whistleblowers and complainants have another place 
to come to, and you can see by those numbers that they are 
choosing to come to us quite a bit.
    As far as the statute, I will tell you that I think the 
statute has really good bones and has a lot of provisions. As 
you have noted, we are a brand new, you know, 5 years, 5, 6 
years or whatever we have been around, so we are really 
continuing to grow into this statute and operationalize it. I 
think there is a lot of good stuff there. We are trying to have 
continuous improvement. I think a lot of those improvements 
that we have been making do not really require statutory 
change. There is nothing that jumps out at me that says we must 
have this statutory change. At some point there might be, but I 
think we are still continuing to grow into and operationalize 
the statute, and we are heading on a good trajectory.
    Mr. Pappas. Okay. Well, I hope you can appreciate the 
frustration on this side of the table, because we have heard 
similar statements from leader after leader after leader who 
have appeared before us talking about implementation of the 
statute and about getting it right for our whistleblowers, for 
VA employees, and ultimately for, and veterans. We want to 
continue to partner with you on that and identify areas where 
Congress needs to act to help shore things up. Thank you. I 
yield back.
    Mr. Gipe. Appreciate that.
    Ms. Kiggans. Thank you, Mr. Pappas. I want to do one quick 
round of extra questions. I yield a few minutes back to myself 
if anyone else has any additional questions. Mr. Radway, for 
Fiscal Year 2024, the OAWP requested a budget of approximately 
$30 million. Approximately what percentage of this budget is 
for OAWP's investigations?
    Mr. Radway. Chair Kiggans, I do not have that information. 
I do not believe that we have that handy.
    Mr. Gipe. I could try.
    Mr. Radway. Mr. Gipe.
    Ms. Kiggans. Okay.
    Mr. Gipe. The breakdown of our office, our office, like 
most offices that do this work, OSC is the same way, it is 
mostly Full-Time Equivalent (FTE). The investigative side of 
the office is kind of the big side of our office. I think 80, 
90, employees out of 131. It is the majority of our FTE are 
being paid for the investigations.
    Ms. Kiggans. The settlement agreements do not come out of 
that 30 million. Is that correct?
    Mr. Gipe. Our tracking of the settlement agreements happens 
under the Compliance and Oversight Directorate, which is Ted's 
other job.
    Ms. Kiggans. Okay. Okay. Do you have a cost estimate about 
how much each disciplinary recommendation is costing?
    Mr. Gipe. No, but we can get that for you.
    Ms. Kiggans. I am just curious. Okay, thank you. Mr. Costa, 
data you shared in your testimony showed that the proportion of 
VA OSC cases spiked in 2019, a few years after the creation of 
OAWP, and has since decreased. Do you attribute this change to 
OAWP or to other factors?
    Mr. Costa. I think it is hard to say since it is only been 
a few years. There appears to be a growing awareness, as has 
been suggested by OAWP, of what they are doing. They did 
address the OIG recommendations, and that might also be a 
factor in the growth of their cases. As I mentioned before, the 
total number of cases between OSC and OAWP remain about the 
same in the 3 years that we have comparable data. It went from 
about 1,300 to 1,200 cases. All within that range. It seems as 
though some people are moving more of their caseload to OAWP 
over the last few years.
    Ms. Kiggans. Thank you very much. I now yield to Ranking 
Member Mrvan for additional questions.
    Mr. Mrvan. Mr. Gipe, if you could clarify something that is 
ringing in my head. Representative Obernolte asked a question 
about a specific case, and with your answer, you had stated and 
I want to separate the specific case to a general question. You 
had stated that an employee was not within the jurisdiction of 
the VA. Can you explain to me how someone who has an impact on 
others at a hospital does not have jurisdiction from the VA or 
does not fall under the jurisdiction of the VA?
    Mr. Gipe. Sure. If that was exactly what I said, I 
misspoke. Let me give you the nuance that I meant to say.
    Mr. Mrvan. Okay.
    Mr. Gipe. VA would have jurisdiction over all VA employees 
for sure. If I said something else that was incorrect. What I 
was trying to say was that OAWP has jurisdiction to investigate 
senior leader misconduct. Senior leaders are defined in 
Directive 0500 and whistleblower retaliation by supervisors. If 
we get a lower-level employee who is not a senior leader and 
not a supervisor, then we do not have jurisdiction to look into 
that case. Other parts of VA do. That is why you have 
administrative investigatory boards and other places like that 
where they can go.
    Mr. Mrvan. Okay. As a point of clarification for me, in an 
employee who does not fall in the supervisor category, if 
someone is a whistleblower toward that employee, this bill does 
not cover that?
    Mr. Gipe. It is another nuance. There is two things. If 
somebody is making a complaint against an employee for either 
misconduct, poor performance, or whistleblower retaliation, we 
would have it if it is a senior leader or a supervisor. If it 
is a straight whistleblower disclosure about someone or 
something, it is very much like OSC's disclosure unit. That is 
usually a situation where we are not investigating. The good 
example is somebody comes to us and says there is a bunch of 
cardboard in the stairway at a hospital and that is a potential 
fire hazard. That would be a straight whistleblower disclosure 
that would not need an investigation by us. We would refer that 
out to the hospital. They would take care of it and will report 
back to us and we would resolve that issue. It is a little bit 
of a nuance, but that is a big part of our work.
    Mr. Mrvan. It is nuanced. I am going to ask this question. 
Say someone is abusive from one employee to the next employee, 
and that whistleblower does not get the same protections if it 
is not against a supervisor or it is just given to a different 
organization?
    Mr. Gipe. If someone is abusive and, let us say, creating a 
hostile work environment and maybe it is not a senior leader or 
a supervisor, so it is not within our jurisdiction, there are 
still other ways that could be dealt with. That sounds that 
sounds more like an EEO case. ORMDI would have jurisdiction 
over that. There is also harassment provisions that, you know, 
there is a whole mechanism that deals with harassment issues.
    Mr. Mrvan. In your opinion, would it be a better service to 
veterans in VA and the entire enterprise if the piece of 
legislation covered all employees, just not supervisor 
positions?
    Mr. Gipe. It would give us a lot more work. You know, 
definitely if we are resourced to take care of that, we would 
be happy to meet that mission, but it would be a strikingly 
enlarged mission. Having said that there are processes in place 
for people experiencing those things. This is another situation 
where, for instance, either our whistleblower navigator or our 
intake and referral division, when they get these kinds of 
cases, they do not just say like, no, it is not ours. They will 
point people in the right direction so they can go where their 
problem can be addressed.
    Mr. Mrvan. Last question. Does your organization then 
follow up on that----
    Mr. Gipe. Yes.
    Mr. Mrvan [continuing]. and document it?
    Mr. Gipe. Yes, both. Our whistleblower referrals, their 
disclosures, we call them referrals and we refer them out, they 
come back to us. We close the case when we get information that 
that issue has been taken care of.
    Mr. Mrvan. Thank you very much. With that, I yield back. 
Thank you.
    Ms. Kiggans. Thank you, Mr. Mrvan. The chair now recognizes 
Mr. Obernolte.
    Mr. Obernolte. Thank you, Madam Chair. I know I went over a 
couple of minutes last time. I will try not to overstay my 
welcome here. Mr. Calhoun, going back to you for a question. In 
looking at other investigations done by OAWP, it seems to me 
that only about 2 percent of OAWP's investigations result in a 
disciplinary action. Does that statistic sound about right to 
you?
    Mr. Calhoun. Thank you for the question. If I could just 
expand on that just a little bit to give you some perspective. 
If we go back to Fiscal Year 2021, 38 of our recommendations 
for discipline resulted in disciplinary action being 
effectuated. During that same timeframe, Fiscal Year 2021, 33 
of OSC's investigations resulted in disciplinary actions being 
implemented.
    I think there needs to be some context added to that when 
we start talking about percentages. To give you an idea, there 
is probably about 3 percent of our investigations that result 
in disciplinary actions, but many times that result in some 
type of recommendation. We make recommendations for both 
disciplinary and non-disciplinary actions. Our non-disciplinary 
recommendations also result sometimes in discipline being 
taken, but we leave that up to management's discretion as 
opposed to our authority to recommend disciplinary action, 
which has an oversight provision in it for Congress. Congress 
gets notified if we make a recommendation for disciplinary 
action and it is not taken by the VA.
    Mr. Obernolte. Okay. Just to be clear, when we talk about 
disciplinary action, that is not necessarily termination.
    Mr. Calhoun. That is correct.
    Mr. Obernolte. It could be something as mild as a written 
warning or counseling or something like that?
    Mr. Calhoun. Yes, sir. If I may, so going back to March 
2019, we have received 35 allegations of whistleblower 
retaliation from Loma Linda. Of those 35 allegations, 11 
resulted in investigations and five resulted in recommendations 
for disciplinary action. Of those five recommendations, one was 
fully implemented. On three of those events, the employee left 
the VA before it could be implemented. On the fifth, no action 
was taken by the VA.
    Mr. Obernolte. Okay. I do not know if that gives me comfort 
or it further alarms me if you are telling me 50 percent of 
your investigations of my facility in my district resulted in 
disciplinary action. You know, the point obviously is, even if 
it is 3 percent and not 2 percent, you know, to me that is a 
little alarming. If we are telling these whistleblowers who are 
coming forward, you know, at great personal risk to themselves 
and their reputations and feeding us information, if only 3 
percent of the time their information results in, you know, 
action, disciplinary action being taken, you know, that is not 
very reassuring to them.
    Just with the time I have left, Ms. Collier, if I could 
give you a platform if you could just tell us briefly just in 
case there are whistleblowers watching and I hope potential 
whistleblowers watching, and I hope that there are, can you 
tell us how a whistleblower would report retaliation to you and 
to the VA?
    Ms. Collier. Absolutely. I am happy to speak about how 
whistleblowers can come forward with a retaliation claim, at 
least to OSC. We have multiple ways of filing a complaint. We 
recently launched a new web filing portal that I think makes 
the experience quite a bit easier. There is a lot of education 
built in about what it requires to pursue and to prove a 
retaliation case under the statutes that we enforce.
    Whistleblowers are welcome to go to our website and review 
those materials, fill out a complaint, which is then processed 
by OSC's Case Review Division. They are doing a very quick, 
like a few days check to make sure that we have jurisdiction 
over the allegation. Then from there, the case is assigned to 
the appropriate sort of programmatic unit in OSC, whether that 
be our disclosure unit where they are alleging wrongdoing or 
they are alleging a prohibited personnel practice like 
retaliation. From there, they have sort of a stable point of 
contact an OSC attorney that they can talk to as issues arise, 
if they have questions about the process and we work our way 
through our investigation.
    Mr. Obernolte. Right. If they think they have been 
retaliated against, they go to OSC, fill out an online form, 
and the case is investigated. What is that Uniform Resource 
Locator (URL)? Is it something that we can tell people? You 
just Google it?
    Ms. Collier. Yes. OSC.gov, and there is a big green button 
that says file a complaint.
    Mr. Obernolte. Excellent. Thank you very much and thanks to 
all of our witnesses. I have enjoyed your testimony today. I 
yield back, Madam Chair.
    Ms. Kiggans. Thank you, Mr. Obernolte, and also thank you 
very much to our first panel. The first panel of witnesses is 
now excused. If I could invite the second panel to now take 
their seats at the witness table and we will take a few minutes 
just for transition. Thank you.
    Welcome to all of our members on the second panel. Will you 
all please stand and raise your right hand and we will swear 
you all in.
    [Witnesses sworn.]
    Ms. Kiggans. Thank you. Let the record reflect that 
witnesses answered the affirmative. You may be seated. Mr. 
Leavitt, you are now recognized for 5 minutes to provide your 
testimony.

                  STATEMENT OF TRISTAN LEAVITT

    Mr. Leavitt. Thank you, Chairwoman Kiggins, Ranking Member 
Mrvan, members of the subcommittee. I am very pleased to have 
been invited back before this subcommittee. I appear today as 
the President of Empower Oversight, a nonpartisan nonprofit 
that works closely with whistleblowers in order to enhance 
independent oversight of government and corporate wrongdoing.
    You play a very important role in ensuring the VA properly 
cares for our Nation's veterans. I deeply believe the United 
States is a land of the free because of the brave women and men 
who serve in our armed forces. Our Nation owes them an immense 
debt of gratitude. Many know these famous words from Abraham 
Lincoln's Second Inaugural Address, ``with malice toward none, 
with charity for all, with firmness in the right, as God gives 
us to see the right, let us strive on to finish the work we are 
in, to bind up the Nation's wounds.'' Less well known is what 
he said next, which for nearly 65 years served as the motto of 
the VA, ``to care for him who shall have borne the battle, and 
for his widow and his orphan.''
    Eighteen years after these words were spoken, when Congress 
contemplated adopting a merit based civil service system, 
providing effective service to the American people was a prime 
motivation for Congress. Hiring based on merit would ensure 
taxpayers received the best value possible for their hard-
earned tax dollars. As it is later been described, the other 
side of the merit coin is the removal of Federal employees who 
are not providing effective service.
    When the Civil Service Reform Act of 1978 was signed into 
law 45 years ago, it included new provisions for removing 
underperforming Federal employees. It also established 
statutory protections for Federal whistleblowers, a first in 
our Nation's history. These provisions attempted to strike a 
balance that Congress continues to grapple with today how to 
ensure accountability for employee performance and misconduct 
without chilling whistleblower disclosures or enabling 
retaliation.
    This is actually more difficult than it sounds since 
whistleblower retaliation is almost always disguised as 
appropriate discipline. Thus, the Civil Service Reform Act 
established the independent Merit Systems Protection Board to 
review adverse personnel actions and ensure whistleblowers are 
protected, while not impeding accountability for poor 
performers or employees committing misconduct. This 
administrative process provides a cost-effective way to 
consider these cases more so, in my opinion, than sending them 
directly to the Federal court system to be decided.
    As a Senate confirmed member of the Merit Systems 
Protection Board, I considered case after case that hinged on 
the appropriateness of adverse personnel actions. I was always 
very mindful that we as adjudicators are fallible, that from 
time to time, facts buried in the record get overlooked despite 
our best efforts, and that no written record can perfectly 
capture all the complicated circumstances that often surround 
personnel actions. Nevertheless, I felt we tried our best to 
identify whistleblower retaliation in the cases we adjudicated 
while I was there.
    By contrast, I am concerned that our current system does 
not strike the right balance to ensure accountability for 
Federal employees. This is a concern which this committee has 
grappled with for years. Both the Veterans Access Choice and 
Accountability Act of 2014 and the subsequent VA Accountability 
and Whistleblower Protection Act of 2017 were aimed at this 
issue. As I have indicated, I believe MSPB has a very important 
role to play in distinguishing whistleblower retaliation from 
proper accountability. In my opinion, it would be a serious 
mistake to further limit the categories of employees who have 
MSPB appeal rights. However, I do not have confidence that in 
non whistleblower cases, MSPB always contributes to protecting 
the other side of the merit coin by ensuring accountability.
    My experience on the board led me to believe the most 
important variables for accountability are not timeframes, but 
rather how MSPB sees its role in the disciplinary process. In 
the seminal 1980 case on this issue, Douglas v. Veterans 
Administration, the board held that its function is to assure 
managerial judgment has been exercised within tolerable limits 
of reasonableness, not, as the board noted, to insist the 
balance be struck precisely where the board would choose if it 
were in the agency's shoes.
    Yet, time and again since then, the board has displaced 
management's reasonable judgment regarding disciplinary 
decisions. What is more, appellate courts are only granted 
limited latitude by the statute in reviewing board decisions. 
For these reasons, I support statutorily lowering the standard 
of proof required for disciplinary decisions, not just at the 
Department of Veterans Affairs, but across the civil service. 
Standardizing relevant personnel laws for the civilian 
workforce would reduce confusion and contribute to greater 
consistency across the Federal Government.
    That said, there is wisdom in the observation that you 
cannot fire your way to excellence. At the end of the day, the 
most important variable for any Federal agency or department 
may be cultivating a culture of excellence and accountability, 
both for employees and for supervisors. In my opinion, OAWP 
would likely be best situated to contributing to such a culture 
if investigating whistleblower retaliation was left to the 
experienced Office of Special Counsel, and OAWP focused on the 
big picture of addressing trends to VA. In my view, this is 
what will most help us to do the mission the VA was started 
for, to care for him who shall have borne the battle, and for 
his widow and his orphan. Thank you.

    [The Prepared Statement Of Tristan Leavitt Appears In The 
Appendix]

    Ms. Kiggans. Thank you, Mr. Leavitt. Ms. Feinstein, you are 
now recognized for 5 minutes to provide your testimony.

                STATEMENT OF SAMANTHA FEINSTEIN

    Ms. Feinstein. Thank you. Chairwoman Kiggans, Ranking 
Member Mrvan, thank you for the opportunity to testify here 
today. My name is Samantha Feinstein, and I am a staff attorney 
and director of the International Program at Government 
Accountability Project, which is a nonprofit, nonpartisan 
organization dedicated to the protection of whistleblowers. 
First, I want to commend this committee for its bipartisan 
support of veterans and making sure that they get the medical 
care they deserve as it relates also to accountability and 
whistleblower protection, which is what we are speaking about 
here today.
    It is going to take a change in culture, time, consistent 
oversight, and meaningful accountability to change from what 
our legal director, Tom Devine previously described as Death 
Valley for whistleblowers and turning that into, I think, what 
we are already seeing being implemented at the OAWP today, 
which has been remarkably improved, I think, since our previous 
testimony. It is also going to take some congressional 
legislation to institutionalize some of those improvements and 
changes that we are currently seeing.
    I do want to give credit where it is due to Ms. Donaghy. It 
was under her leadership, OAWP has reinstated its Alternative 
Dispute Resolution program. The Whistleblower Stakeholder 
Liaison has been liaising with the whistleblower group. There 
is improved communication, which I think has much improved. 
They have been resolving cases meaningfully and operating more 
independently than in the past.
    It is important that we go beyond the goodwill of good 
leaders and institutionalize some of these reforms that we are 
seeing today. I just want to go through a few key reasons why I 
think legislation is really needed. First, of course, the 
cornerstone for a whistleblower office is independence. 
Legislation should ensure that they have full independence, 
even if counsel are more--operating more independently today 
than in the past when there were interferences with the office 
or overlap with the Office of General Counsel.
    Second, is there is really no supplement for the Office of 
Special Counsel's investigative authority because they can 
litigate for enforcement of corrective actions, which right now 
the OAWP does not have the mandate to do and just structurally 
that would be kind of an awkward arrangement if they did have 
that authority. Next, is its important to close the loophole to 
ensure that state license board referrals as an act of 
retaliation is something that OAWP can stop from happening 
because then whistleblowers can be blacklisted then through 
these board referrals and that can stop them from getting 
meaningful employment sometimes for the rest of their career.
    The next is just the level of transparency. While it has 
improved, it just needs to be institutionalized through 
legislation. They should have the same public results published 
like the Office of Special Counsel has.
    Next, is OAWP's compliance analysis and reporting system. 
Findings should be made public and included in reports to 
Congress. Additionally, I think its really great that OAWP's 
Navigator program has been restored as well as their 
Alternative Dispute Resolution program. We would also like to 
see that institutionalized through legislation just to ensure 
that there is no backsliding in this regard.
    I just want to conclude by saying there is still hope for 
OAWP and I think that a legislative fix can help ensure that 
there is no backsliding into the past here. I want to just 
remind the committee Office of Special Counsel was at one point 
an agency where the Special Counsel was coaching employers on 
how to get away with firing whistleblowers without getting 
caught. Today, with congressional amendments, it is the 
independent agency that it is today.
    I do think that there is hope for OAWP through new 
legislation. I just want to say that we are happy at Government 
Accountability Project to be a resource for you and help finish 
what Congress has started last Congress. I just hope that it 
will continue to be a strong, bipartisan issue because I think 
we all agree that the veterans who have sacrificed so much for 
our country deserve to be supported and people who commit 
misconduct and violate patients' rights should be held 
accountable. Thank you.

    [The Prepared Statement Of Samantha Feinstein Appears In 
The Appendix]

    Ms. Kiggans. Thank you very much, Ms. Feinstein. Mr. 
Spielberger, you are recognized for 5 minutes to provide your 
testimony.

                  STATEMENT OF JOE SPIELBERGER

    Mr. Spielberger. Chairwoman Kiggins, Ranking Member Mrvan, 
and subcommittee members, thank you for inviting me to testify 
here today on whistleblower protections and accountability at 
the VA. It is important to be clear that when we talk about 
protecting VA whistleblowers, we are talking about the VA's 
ability to fulfill one of the most important mandates of the 
Federal Government to serve veterans, their families, 
caretakers, and survivors, and most critically, those veterans 
who are enduring some of the most personal and isolating 
circumstances. Survivors of Post-Traumatic Stress Disorder 
(PTSD), military sexual trauma, suicide ideation, traumatic 
brain injuries, exposure to Agent Orange and toxic burn pits, 
physical injuries, whether combat related or otherwise, and 
other mental, behavioral, and psychological issues that may 
very well impact them for life.
    What does it mean when veterans are cutoff from life saving 
services or those services are compromised or denied? That is 
ultimately what is most at stake here. VA whistleblowers have 
exposed systemic corruption, widespread medical negligence, and 
abuse within the VA at large, and conflicts of interest, waste, 
and whistleblower retaliation directly from within the Office 
of Accountability and Whistleblower Protection itself, all of 
which implicates and undermines the fundamental health, safety, 
and dignity of the veterans they serve. That is why it is so 
important to protect VA whistleblowers, not just because we 
want accountability for those who have been denied their legal 
rights, although we certainly do, but because we are concerned 
about the entire system of care.
    We are all aware of the historic problems with OAWP that 
have stemmed from its lack of independence from the VA. From 
the very beginning, POGO raised concerns about housing a 
central whistleblower office within the agency without proper 
independence. While it was clear that we needed more resources 
to address the rise of whistleblower complaints, we knew that 
without critical independence, the Office would not be able to 
provide the accountability that was and still is so sorely 
needed.
    No internal whistleblower office can adequately protect 
whistleblowers without being independent of their parent 
agency, and disciplinary recommendations are only effective if 
they are enforceable. That is why, regardless of any other 
reforms, OAWP must have its own independent legal counsel with 
the authority to enforce discipline without agency 
interference. OAWP itself has concurred with this 
recommendation at times in the past, noting that coordinating 
with the agency's general counsel, at the very least, creates 
the appearance of a conflict of interest. During last year's 
subcommittee hearing on this topic, then Chairman Chris Pappas 
reported that in 2021, OAWP made 15 disciplinary 
recommendations against senior leaders who retaliated against 
whistleblowers, but the VA acted on only five, and only fully 
implemented one. Then Ranking Member Tracey Mann analogized, 
``the fox is guarding the hen house, and it is time for a 
change.''
    With respect to some of the testimony that we heard from 
the previous panel where the agency cites numbers of 
disciplinary recommendations the VA implements that also 
includes recommendations implemented only partially. 
Respectfully, this is still one of the many concerns we have 
had ever since the GAO's 2019 report showed the VA relying on 
advice from the Office of General Counsel, severely mitigated 
proposed discipline for any number of reasons.
    If Congress simply required OAWP to provide more 
transparent data, that would really help determine whether the 
issue really is a lack of authority, as some have argued, or 
rather the VA's willingness to discipline its senior officials. 
We do appreciate many of the recent improvements to OAWP's 
internal practices, but any such improvements should be 
grounded into law and still are no substitute for OAWP's proper 
independence of the VA. We are very pleased to see the 
subcommittee engaging to address these issues. We encourage you 
to act urgently and provide OAWP with its own independent legal 
counsel and authority to enforce discipline against senior 
leaders and supervisory officials. That is the best way that we 
can protect whistleblowers and bring more accountability to the 
agency so the VA can provide the highest standard of care for 
America's veterans, their families, caretakers, and survivors. 
Thank you again for inviting me to testify here today. POGO is 
committed to working closely with the subcommittee on these 
issues, and I am happy to answer any questions.

    [The Prepared Statement Of Joe Spielberger Appears In The 
Appendix]

    Ms. Kiggans. Great. Thank you very much, Mr. Spielberger. 
Mr. Pearson, you are now recognized for 5 minutes to provide 
your testimony.

                   STATEMENT OF PAUL PEARSON

    Mr. Pearson. Thank you. Chairwoman Kiggans, everybody here, 
my first time. My name is Paul Pearson. I am the Vice President 
of Whistleblowers of America. If you guys are not aware, 
Whistleblowers of America is, I think, the largest peer support 
network for whistleblowers in America. We work with 
whistleblowers in all kinds of industries, but veterans is core 
to our mission. We take--this subcommittee is very important to 
our organization. Jackie generally comes to these, but she was 
not able to make it today. I am here to represent 
whistleblowers. Jackie has submitted a statement for the 
record, eight-page statement. I am only going to go over a 
couple of things then I am going to give back my time.
    H.R. 4461, we believe that it is draconian in its approach 
to justice and it tramples on the rights of the employees. We 
feel that H.R. 8510 that was proposed last year, is a much 
better piece of legislation and we would like to see that 
reintroduced.
    The OAWP, we feel that it falls way short of its goals. 
According to a GAO investigation that found that while the rest 
of the Federal Government saw a decline in retaliation cases, 
the VA saw an increase. We would like to work more with the 
OAWP in the future. We work closely with the Commodity Futures 
Trading Commission (CFTC), GAO, and the Whistleblower Ombuds 
offices. I would like to invite Mr. Gipe or anybody at the OAWP 
to come to our conference or have a meeting with us. I yield my 
time.

    [The Prepared Statement Of Paul Pearson Appears In The 
Appendix]

    Ms. Kiggans. Thank you, Mr. Pearson. We will now move to 
questions and I yield myself for 5 minutes. Mr. Leavitt, you 
have spent time at both OSC and the MSPB. Are they equipped to 
protect VA whistleblowers? Also, would additional resources 
allow OSC to better investigate whistleblower retaliation 
cases?
    Mr. Leavitt. Yes and yes. I mean, in terms of additional 
resources, that would allow them to investigate more. I do not 
know about better investigate. Where they have resources to 
investigate, where they do investigate, I think they do a very 
good job. You know, it is been noted that OSC's budget is about 
equivalent to that of OAWP. OSC has this jurisdiction for the 
entire Federal Government. OSC would certainly benefit from 
more resources, but they are very adequately equipped to 
conduct these investigations.
    Ms. Kiggans. I know that even listening to Ms. Feinstein 
and several of you talked about more independence for OAWP, you 
know, their own legal counsel and whatnot, you know, we have, 
this $30 million request from them already is more to provide 
that autonomy that seems to be several of you are asking for. 
Is that going to be a larger ask then, as far as budgetary 
constraints? Is that something that we need to be thinking 
ahead or is that, to provide them with more independence and 
authority, OAWP, is it going to cost more?
    Mr. Leavitt. I do not have great insight into that. The 
challenge in part for all of this, right, is that OAWP is a new 
project, it is a new experiment. Each of these steps, including 
whether if you were to expand their jurisdiction, it is just 
unknown, right? With OSC, there is a track record of several 
decades of just figuring out what they can do with a certain 
amount of money.
    Ms. Kiggans. Okay. Let us see. Mr. Spielberger, in your 
testimony, you note that the percentage of VA prohibited 
personnel practices which involve whistleblower retaliation 
have generally gone up in the last few years. Can you discuss 
this data a little bit further?
    Mr. Spielberger. Congresswoman, I think we heard both from 
the GAO in their recent testimony and recent reports that both 
the number of whistleblower retaliation cases that 
whistleblowers have brought to OAWP have increased, as well as 
you are referencing the number of prohibited personnel practice 
cases that come from VA employees to OSC that include 
whistleblower retaliation. I think that just goes to show the 
deep concern and underscore the need that regardless of 
whatever improvements are being made to training and additional 
hiring and those types of internal policies and practices, 
those reforms are not, to this point, resulting in the results 
that we want to see on behalf of veterans and on behalf of 
whistleblowers.
    Again, for any of those internal improvements, we would 
like to see those codified into law so any progress cannot be 
undone by future leadership. We go back to our primary 
recommendations about providing OAWP with its own independent 
legal counsel and with much greater authority to actually 
enforce disciplinary recommendations.
    Ms. Kiggans. Okay. Ms. Feinstein, you testified that while 
OAWP may have improved, you believe that the agency's 
investigative authority should still be transferred to OSC. 
What about the OAWP? What is it about the OAWP that has you 
convinced that it should not have investigative authority?
    Ms. Feinstein. I think that the difference is in terms of 
the issues we have been seeing with corrective action and that 
being taken and implemented and followed through. I think that 
it would be difficult to give that authority to OAWP because 
their assistant secretary reports to the secretary of the 
agency. The Office of Special Counsel already has the ability 
to litigate, to enforce corrective actions if there is a 
finding of retaliation. I think that with the existing 
authorities that they have and the resources, but also adding 
that actually they could also benefit from increased resources 
as well. I do think that they are equipped to be conducting 
these investigations.
    If I may also offer, I think in terms of the Alternative 
Dispute Resolution program, I know that OSC has been helping 
and I think maybe they have even been helping some inspectors' 
general offices with their ADR mediation programs. I think that 
this is something that we have seen, I want to say about 70, 
maybe even more than that, percent of OSC cases that go to 
mediation end up in some sort of successful settlement result. 
It is very successful. They are a very small agency 
considerably.
    I think that investing resources into these types of 
programs gives whistleblowers, I think, more options in terms 
of what can provide them with some relief and also just 
speedier results, and it is just a lot more cost efficient for 
them. I think that is something to keep in mind as well.
    Ms. Kiggans. Great, thank you very much. Ms. Feinstein, you 
also mentioned you had, I think, five or six things that 
Congress could do just to encourage some of the work that OAWP 
is doing. Thank you for that pretty specific list.
    Mr. Pearson, just curious as to your opinion too. OAWP 
seems to have made some progress on being more transparent 
about its work. Do you have any recommendations of what 
Congress can do to encourage this?
    Mr. Pearson. I think some more engagement with the target 
audience. Whistleblowers would be great. Generally, peer 
support really works when you are like really conversing and 
talking with people. I think opportunities like that would be 
really great.
    Ms. Kiggans. How about Mr. Spielberger, do you have any 
comments and specifics on what Congress can do to encourage 
more transparency?
    Mr. Spielberger. Yes, absolutely. You know, like my fellow 
panelists, POGO has advocated in the past for shifting 
investigative authority to the Office of Special Counsel. I 
think that would also free up agency resources. To make OAWP 
more of an educational and resource-based office, again, I 
would reiterate the need for more transparency with data. I 
think that is still a very big concern, that when we see the 
numbers of recommendations that are being implemented in total, 
in part, or if an employee is allowed to retire or leave the 
agency prior to any discipline being meted out, that is a cause 
for concern. I think we would like to see more transparency 
with that data, those numbers broken down more, which I think 
would again send a very clear message to Congress and the 
public again, whether the issue is a lack of authority or an 
inability to actually discipline or fire employees when it is 
necessary and appropriate.
    Ms. Kiggans. I do not disagree. I think transparency is 
always a good solution. Thank you very much. I am over time and 
I will yield to Ranking Member Mrvan.
    Mr. Mrvan. Thank you, Chairwoman. Ms. Feinstein, we cannot 
understate how badly OAWP was misused under the previous 
administration. Your testimony acknowledges that the current 
leadership has made some improvements, but you do not seem to 
believe that OAWP can ever fulfill its mission. Is the solution 
in your view that unless OAWP becomes a completely independent 
office, it should really cease to exist?
    Ms. Feinstein. That is a good question and a tough one. I 
do think that independence is the cornerstone for a 
whistleblower office to be able to be effective and do its job 
and be a safe place for whistleblowers to go. I do think it 
does need complete independence. I also think that is 
exemplified by some of the issues that we have experienced in 
the past. If we have seen these problems come up and if we can 
get a legislative fix from Congress to ensure that we do not 
backslide into the past, then I do think that there is hope 
that we can get there and that it can fulfill its mission.
    I think it is implementing in spirit, I think, what 
legislation like the Strengthening Whistleblower Protection of 
the Department of Veterans Affairs Act has proposed. We just 
want to make sure that that does not backslide, of course, into 
what we have seen in the past. I think the positivity I feel 
about the office stems from just seeing the history of the 
Office of Special Counsel and what that used to be like for 
whistleblowers and seeing the amount of time that it is taken 
for OSC to be the agency that it is today that is able to do, I 
think, a lot for whistleblowers. It just takes time sometimes, 
and legislative amendments over time to fix some of the 
loopholes that we find on some of the issues as they come up.
    Mr. Mrvan. I guess my next question, if nothing changes 
about the structure of the office in terms of having its own 
council, but it continues to improve its operations, can it 
ever regain your trust or the trust of the whistleblower 
community?
    Ms. Feinstein. You mean in terms of having its own general 
counsel?
    Mr. Mrvan. Mm-hmm.
    Ms. Feinstein. I am going to answer what I really think 
and----
    Mr. Mrvan. Please.
    Ms. Feinstein [continuing]. I, you know, I have some 
concerns based on what we have seen in the past between the 
role of OGC and OAWP. I think that legislation that fixes that 
obviously would be preferred to stop that from happening. What 
we are seeing in practice is positive. I do not think it is the 
only or necessarily most important thing. This is my personal 
opinion.
    I do think that trust can be restored with many of the 
other amendments that we would request in addition to restoring 
the Navigator program and ADR and making that permanent and 
institutionalized through legislation because that is something 
that was removed basically in the past and was recently brought 
back. We just do not want to see that happen again because 
obviously educating whistleblowers and helping them navigate 
the system and helping them resolve their disputes, hopefully 
amicably between the parties is always a really important part 
of an effective whistleblower program. I also feel like there 
is some hope in that respect.
    We always advocate for best practices and we even think 
that past legislation could go further if you are so inclined. 
I do think that what we have seen, at least with the H.R. 8510 
from last Congress does lay out some of the key things that we 
think are really important and it will surely again take time 
to test even some of these amendments and find more problems as 
we might in the future. Yes, I think that there is hope with 
the other amendments. That is a long answer to your question, 
sorry.
    Mr. Mrvan. Thank you for telling us how you feel. Greatly 
appreciate it. With that I yield back.
    Ms. Kiggans. Thank you, Mr. Mrvan. I have a couple of other 
questions. I think we are waiting for one more member to arrive 
also. Mr. Leavitt, can you tell me in your opinion, why do you 
think so many VA whistleblowers are distrustful of the OAWP?
    Mr. Leavitt. Well, the history is a clear starting point 
and just specific examples, word of those kinds of things 
travels when someone feels like they are ill used in an office. 
I thought it was very interesting what Bruce Gipe, who I worked 
with at OSC and have great respect for, what he mentioned, 
which is that OSC is focused on corrective actions and OAWP is 
focused on accountability.
    If you are a whistleblower and you are going to put your 
career on the line by coming forward because nothing is, you 
know, obligating you to do that, you do it because you want to 
see the agency be a better place. You want veterans to be cared 
for. If you are doing that, if you run the risk that there is 
not going to be corrective action for you, that you are not 
going to be made whole for doing what you did, why would anyone 
be motivated to do that? I think that is part of the dynamic 
that can drive any office.
    You see it with IG offices also that are very motivated to 
find the wrongdoing and that is good, and they sometimes are 
not as focused on then making sure that the sources of their 
information are protected. That is where OSC excels and so that 
is where I think that is where distrust can stem from if 
someone goes to OAWP and again feels like it is a bad 
experience. I have spoken with a number of whistleblowers in 
that position over the years. That is the big challenge for any 
whistleblower is to make sure that they feel that it was worth 
it, what they did.
    Ms. Kiggans. Do you think that the transparency that we 
talked about, greater transparency and some of the results, 
would be beneficial then, for empowering whistleblowers or not?
    Mr. Leavitt. Transparency can be helpful. Again, my 
personal view is the cornerstone has to be that the 
whistleblower is protected. Transparency about what happens, I 
mean, that is studies show that that is the biggest deciding 
factor. Whether people come forward or not is actually not 
whether they will be protected, but whether the problem will be 
fixed. That is significant, but people also have to be 
protected in that. Having transparency about what happens, what 
the outcome is, is good as long as you also still have your 
job.
    Ms. Kiggans. Right, right, thank you. Thank you very much 
for that. Mr. Pearson, can you please discuss just briefly your 
opinion of some best practices of how we can ensure 
whistleblowers are empowered to speak out?
    Mr. Pearson. Yes, I mean, I think I would just definitely 
have to agree with what Tristan said about transparency and 
being protected. A lot of whistleblowers well, I will say a lot 
of people, they see what happened to their coworkers and they 
do not want to do the same thing. I am sure I will not blow the 
whistle. No, I cannot think of anything off top of my head. 
Sorry, I am nervous.
    Ms. Kiggans. Okay. Thank you for that. Then Mr. Spielberger 
last question, do you believe OAWP's Investigative Attorney 
Division will help create its independence? Is that enough of a 
step?
    Mr. Spielberger. I think that change is a significant step 
in the right direction, and that is the type of reform that 
should be better codified. My question would be what the legal 
grounding is for that change? If that is just an internal 
practice right now, that is exactly the type of legislative 
change that we would want to see to make sure that future 
leaders cannot undo that progress.
    At the same time, we know that the Office of General 
Counsel still plays a role in determining and implementing 
discipline and settlement agreements. We still have a lot of 
concerns about their role in that process and seeing what can 
often be strong recommendations for discipline or corrective 
action coming from OAWP that then get mitigated down severely. 
Where, you know, we have seen more egregious disciplinary 
recommendations become more of a slap on the wrist, or, you 
know, verbal counseling, and that sort of thing. Again, it is a 
step in the right direction, but we want to codify those 
changes, and there is still much more that we need to do.
    Ms. Kiggans. Great. Thank you very much. I will yield to 
Mr. Rosendale for questions for 5 minutes.
    Mr. Rosendale. Thank you very much, Madam Chair. Madam 
Chair, whistleblowers play a vital role in detecting and 
preventing corruption. They have saved our government millions 
of dollars by uncovering malfeasance and wrongdoing. 
Whistleblowers also help expose and shine a light on bad actors 
who violate their positions of power and trust.
    In my State of Montana, whistleblowers played a key role in 
helping me bring about needed accountability and change that I 
am optimistic will lead to improved care for veterans across 
the state.
    To recap, whistleblowers contacted my office in late 2022, 
raising serious concerns about mismanagement that was taking 
place at the Fort Harrison VA facility in Helena. After hearing 
directly from whistleblowers, I started to investigate these 
issues. One such egregious example included a doctor who was 
performing unauthorized surgeries that resulted in serious 
patient harm.
    I worked closely with Secretary McDonough and 
Undersecretary Elnahal to ensure that an investigation was 
completed. The investigation led to an incompetent director 
being removed. In my book, that is what the definition of 
accountability is. She was removed. We are in the process of 
implementing many positive changes.
    The whistleblowers who contacted my office showed immense 
bravery, and their efforts will lead to better care for 
thousands of veterans in Montana. Congress must do all that it 
can to protect whistleblowers and ensure that they are not 
subject to retaliation. One of President Trump's great 
accomplishments was to improve the VA to ensure our veterans 
receive the care they have earned and deserve. One of his main 
focuses was protecting whistleblowers. President Trump directed 
the VA to establish the Office of Accountability and 
Whistleblower Protection and signed the Department of Veterans 
Affairs Accountability and Whistleblower Protection Act of 
2017, which formally codified and expanded OAWP's functions.
    While the idea was great in merit, the VA has failed to use 
the office properly.
    Mr. Leavitt, in your testimony, you allude to the fact that 
the most important variable for any Federal agency or 
department is cultivating a culture of excellence and 
accountability for employees and supervisors. In your 
experience, how do you cultivate this?
    Mr. Leavitt. That is a million-dollar question, sir.
    Mr. Rosendale. Actually, it turns out to be a multibillion-
dollar question, unfortunately.
    Mr. Leavitt. You are absolutely right. It is clear and 
there is a lot of data on this, but it is clear that how we 
select managers and how we select leaders within agencies is 
probably the most neglected thing in our whole entire Federal 
Government. Finding good, you know, career civil service 
managers who can do the hard work of not just not retaliating 
that is good, that is the baseline, right, but also being good 
leaders and making the hard decisions, like firing people when 
it needs to be done. That is just not a skill that comes 
easily. A lot of people are conflict averse, and so I think 
that is where that culture starts.
    Of course, leadership at the top matters. That is something 
that Empower Oversight has spoken up about with regard to the 
recent nominee and now current deputy secretary. You know, at 
the end of the day, the real building blocks, I think, start 
with the managers in every office and ensuring that they care 
about these things and they pursue excellence.
    Mr. Rosendale. Before I go into hiring the right people, 
how does the poor culture result in worse care for veterans?
    Mr. Leavitt. In every way you can imagine. Obviously 
anywhere. We have all been in offices before where we feel we 
have seen people maybe not do their jobs or other things like 
that. When your job is not just approving a report or something 
else, but the care of veterans, there are all kinds of ways 
that I have seen it break down. At OSC specifically, a number 
of the, you know, of course the veterans wait time scandal in 
2013 was because of whistleblowers who went to OSC. Then it 
became clear that it was a nationwide problem. In that case, it 
was particularly dire. There were other medical centers where 
it became clear that veterans were not receiving the care they 
needed.
    I have read lengthy reports on flies infesting operation 
areas. I mean, you have all seen this. Veterans need good 
medical care, and the number of ways they can receive, you 
know, subquality care are innumerable. That is what we are----
    Mr. Rosendale. We have substandard care for the veterans, 
and we have substandard mental health state morale for the 
other employees that are surrounded by, okay, these folks that 
are underperforming. You astutely point out that hiring based 
on merit ensures taxpayers receive the best value possible for 
their hard-earned tax dollars.
    The Biden Administration is filled with bureaucrats who 
were hired not on merit, but based on sex, race, and what they 
do in their bedroom. How does that harm the taxpayer? We have 
witnessed how it hurts the organization, and we have witnessed 
how it hurts the veterans. How does it hurt the taxpayer?
    Mr. Leavitt. Well, in any administration, if people are not 
hired on the basis of being the best candidate, then the 
taxpayers are losing out. That can range from people getting 
through who are completely not qualified and you see 
misconduct. That is been a concern, you know, since the 1800's, 
that is when the civil service system was created. You also, if 
someone is just again, not--there are better people out there 
who are better candidates, those are the people that are going 
to provide the best service for the taxpayers. That is what 
taxpayers deserve, is to just have the best. They expect that 
government, regardless of party, is going to do the best that 
it can to provide the--fulfill the missions that it is 
assigned. That is why merit to me is such a key thing. It is 
truly the lodestar of civil service and personnel issues.
    Mr. Rosendale. Thank you very much. Thank you for attending 
today. Madam Chair, I yield back.
    Ms. Kiggans. Thank you, Mr. Rosendale. Thank you very much 
to our panel members from this panel and the previous panel 
just for taking time to answer our questions today. We are all 
here to ensure VA whistleblowers are protected and to ensure 
every veteran receives the quality care and benefits they have 
earned. I appreciate all your comments. I know we have work to 
do now with staff to hopefully put in place some of those 
changes so we can make whistleblower protections and just 
accountability throughout the VA system better.
    I look forward to working with this committee to ensuring 
that structures are in place to achieve this worthy goal. I ask 
unanimous consent that all members shall have 5 legislative 
days in which to revise and extend their remarks and include 
any extraneous material. Hearing, no objections, so ordered. 
This hearing is now adjourned.
    [Whereupon, at 12:40 p.m., the subcommittee was adjourned.]

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                         A  P  P  E  N  D  I  X

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                    Prepared Statements of Witnesses

                              ----------                              


                    Prepared Statement of Bruce Gipe

    Good Morning Chairwoman Kiggans, Ranking Member Mrvan and 
distinguished Members of the Sub-Committee on Oversight and 
Investigations, thank you for the opportunity to provide testimony on 
the Office of Accountability and Whistleblower Protection (OAWP). 
Accompanying me are Mr. Ted Radway, Executive Director, Investigations 
and Acting Executive Director, Compliance and Oversight, and Mr. Eric 
Calhoun, Director, Investigations Division. OAWP appreciates Congress' 
longstanding support and unwavering dedication to strengthening VA's 
workforce. As you know, protecting VA whistleblowers is paramount, not 
only to the integrity of this Department, but to the health and well-
being of the Veterans we serve. We thank Congress for continuing to 
extend opportunities to partner in our shared goal of maintaining an 
accountable and safe environment for VA employees.
    The 2017 statute establishing OAWP gave VA critical tools to build 
an office of highly specialized employees to investigate senior leader 
misconduct and whistleblower retaliation by supervisors, receive and 
refer whistleblower disclosures within the Department, advise the 
Secretary on matters of accountability, track and confirm 
implementation of audits and much more. Today, VA is proud to share the 
significant strides OAWP has made over these last few years to 
operationalize the statute and bring value to VA. OAWP continues to 
improve upon its execution of these important accountability tools 
given by Congress.

        1. Intake and Referral Division

    OAWP's Intake and Referral Division (IRD) receives all disclosures 
and complaints filed with OAWP. In the last fiscal year, IRD reviewed 
over 2,700 submissions. In September 2023, OAWP completed a refresh to 
the online complaint form that focused on improving the end-user 
experience and reducing redundancies in the form.
    Complainants are contacted within 3 days of receipt to initiate 
development of their disclosure. Veteran complainants seeking 
assistance with health care or benefits receive a direct referral to 
the client relations team of either the Veterans Health Administration 
(VHA) or the Veterans Benefits Administration (VBA). In the last year, 
IRD assisted over 180 Veterans by referring their patient care and 
benefits concerns. Because IRD is the frontline for receiving Veteran 
complaints and there are times when Veterans may be in crisis when 
communicating with IRD staff, IRD has partnered with the Veterans 
Crisis Line office to obtain first-hand Suicide Prevention training. 
This comprehensive training has improved IRD staff's abilities to be 
better prepared to recognize and assist Veterans in crisis for the 
purpose of referring the caller to the Crisis Line.
    IRD works with a complainant to fully develop their disclosure and 
to determine if the matter is appropriate to refer to an Administration 
or Staff Office for action or if it falls within the scope of OAWP's 
investigative authority. In the last year, IRD transmitted 552 
submissions that were outside of OAWP's scope (for example, criminal 
matters or health care concerns) to the Office of the Inspector General 
(OIG), Office of the Medical Inspector (OMI) and VA Administrations and 
Program Offices.
    Whistleblower disclosures received by OAWP that do not involve 
allegations of whistleblower retaliation by a supervisor or senior 
leader misconduct are developed by the IRD and referred to the 
appropriate VA Administration for investigation. There were 663 
whistleblower disclosure allegations referred in the last fiscal, and 
174 allegations were substantiated by the VA Administration that 
conducted the investigation. Of the referred substantiated 
whistleblower disclosures, 86 percent involved violations of law, rule, 
regulation. IRD closed a total of 299 whistleblower disclosure cases 
last year within an average of 115 days from the date the disclosure 
was filed with OAWP. Disclosure referrals are closed when OAWP receives 
a satisfactory response from the Administration or Program Office, 
which includes a plan for addressing the merits of the disclosure with 
appropriate remedial actions.
    IRD is responsible for the preliminary review of all matters that 
involve whistleblower retaliation or senior leader misconduct or poor 
performance allegations. We receive these matters directly from VA 
employees, applicants, Veterans, concerned citizens and other entities. 
When IRD receives matters that are within OAWP's investigative scope, 
the case is quickly transferred to the Investigations Division on 
average within 9 days. In the last fiscal year, IRD transferred 775 
cases involving allegations of whistleblower retaliation or senior 
leader misconduct or poor performance to the Investigation Division for 
further review.

        2. Investigations

    OAWP's investigations of senior leader misconduct, poor 
performance, and whistleblower retaliation; reports of investigation; 
and disciplinary recommendations have improved immensely in recent 
years. These improvements include more timely investigations and higher 
quality reports of investigations and disciplinary recommendations, 
resulting in OAWP's disciplinary recommendations being accepted by 
management in a far greater percentage of cases than in recent years.
    In Fiscal Year (FY) 2021, OAWP investigations took, on average, 251 
days from the date of case receipt to the date of case conclusion, and 
for cases resulting in a report of investigation the average was 496 
days to case conclusion. For FY 2023, OAWP's investigations took an 
average of 82 days from the date of case receipt to the case date of 
conclusion, and for cases resulting in a report of investigation the 
average was 180 days.

[GRAPHIC] [TIFF OMITTED] T4221.030


    In fiscal year (YY) 2021, OAWP disciplinary recommendations were 
not implemented in 32 percent of cases, but in calendar year 2023, some 
form of disciplinary action (or voluntary retirement prior to 
discipline being taken) was taken in 100 percent of cases in which OAWP 
made a disciplinary recommendation. In some of those cases the 
recommended discipline was modified because the deciding official 
considered the Douglas Factors, which are mitigating and aggravating 
factors established by the Merit Systems Protection Board that must be 
considered by the deciding official when determining the appropriate 
disciplinary action, but which are not taken into consideration when 
OAWP makes a disciplinary recommendation.

[GRAPHIC] [TIFF OMITTED] T4221.002


    There are many reasons for the improvement in OAWP's investigations 
and disciplinary recommendations, including:

      Development of standard operating procedures based on the 
Council of the Inspectors General on Integrity and Efficiency quality 
standards for investigations;

      System enhancement to provide efficiencies and automation 
in support of the investigative workflow;

      Development and implementation of standardized basic 
training and advanced training for all OAWP investigators;

      Staffing and structuring the Investigations Division to 
meet the workload; and

      Strengthened reports of investigation which are more 
informative and educational to management.

        3. Investigative Attorneys Division

    OAWP's independence is crucial to avoiding a conflict of interest, 
or the appearance of one, in VA investigations. OAWP was founded on 
these principles to ensure that whistleblower and senior leader 
misconduct and poor performance investigations are not led by VA 
Medical Center or Program Office leadership, who may have a conflict of 
interest in the investigations. To help ensure independence, in 2022 
OAWP created the Investigative Attorneys Division (IAD), which is 
comprised of attorneys highly skilled in whistleblower and/or Federal 
personnel law. IAD reports to OAWP's Assistant Secretary, through the 
Executive Director for Investigations, and its attorneys are 
independent of VA's Office of General Counsel. IAD assists 
investigators in allegation reviews, investigative planning and in the 
drafting and finalization of investigative reports and recommendations. 
OAWP's use of specialized attorneys to assist the investigators 
throughout the investigations has led to more properly scoped, 
efficient and timely investigations, and has contributed to the greater 
adoption of OAWP's disciplinary recommendations in FY 2023.
    VA recognizes and respects the independent authorities of OAWP. 
OAWP is not subordinate to VA's Office of General Counsel. OAWP relies 
on IAD for investigative support and legal sufficiency review of its 
investigations, and the Office of General Counsel does not participate 
in OAWP's investigations or in discussions on case-specific 
disciplinary recommendations.

        4. Alternative Dispute Resolution Pilot and Section 2302(c) 
        Certification Program

    VA is excited to share that beginning in October 2023, OAWP [is 
launching] an Alternative Dispute Resolution (ADR) Pilot Program. The 
initial focus of this pilot ADR program will be both on whistleblower 
retaliation cases and cases involving allegations of senior leader 
misconduct or poor performance, which will allow for potential 
corrective action to be addressed upfront via a binding settlement 
agreement. If mediation is not successful, the case returns to OAWP for 
investigation. All mediation cases will be subject to an accountability 
review after a successful mediation.
    This year, VA became re-certified under the U.S. Office of Special 
Counsel's (OSC) 5 U.S.C. Sec.  2302(c) certification program. OAWP 
obtained this certification for VA and continues to ensure the annual 
requirements of 2302(c) certification are met. OSC's 2302(c) 
Certification Program allows Federal agencies to show that they meet 
the statutory obligation of informing their workforce about the rights 
and remedies available to them under the Civil Service Reform Act, the 
Whistleblower Protection Act, the Whistleblower Protection Enhancement 
Act, the new requirements of the Dr. Chris Kirkpatrick Whistleblower 
Protection Act of 2017 and other related laws.

        5. Training and Outreach

    Under 38 U.S.C. Sec.  733, VA is required to provide training to 
employees on whistleblower rights and protections. In FY 2023, 
approximately 405,154 VA employees and 43,771 supervisors were 
compliant with OAWP's mandatory education on whistleblower rights and 
protections provided through our online education platform (Talent 
Management System).
    In addition to the online training, OAWP also provided live, 
supplemental training to the employees of VA. In FY 2021, OAWP provided 
live, supplemental training on whistleblower rights and protections to 
1,535 employees. Just two years later, in FY 2023, OAWP provided 169 
sessions of this live, supplemental training to 13,210 employees, an 
861 percent increase. Additionally, in April 2023, OAWP started 
conducting in-person supplemental training sessions for supervisors in 
VA. OAWP conducted 18 sessions across the country and reached over 
1,700 supervisors in-person.
    At the start of FY 2023, OAWP established a new position, the 
Whistleblower Navigator, that is designed to assist whistleblowers 
navigate the myriad of entities who have investigative authority. The 
Whistleblower Navigator provides direct information on OAWP's 
processes, procedures and practices, and helps to identify relevant 
laws and policies that may affect whistleblowers.
    In addition to supporting whistleblowers, OAWP recently initiated a 
senior leader outreach and education program directed at senior leaders 
in VA facilities across the Nation. These live, in-person presentations 
include instruction on whistleblower rights and protections and OAWP 
recommendations. These presentations also provide an opportunity for 
meaningful discussions with VA leadership on OAWP's investigations and 
recommendations, management's obligations and ways OAWP can continue to 
make improvements.

        6. Advice to Secretary

    Through its Compliance and Oversight Directorate, OAWP provides 
advice to the Secretary on all matters relating to accountability and 
similar matters that affect public trust. Under the advice to the 
Secretary provision, the Directorate also reviews the efficiency and 
effectiveness of VA programs and operations across the enterprise. In 
FY 2023, OAWP provided four inaugural reports to the Secretary under 
this provision. Three reports focused on the critical role of VHA's 
Military Sexual Trauma (MST) Coordinators, specifically, training of 
MST Coordinators, resources for and accountability of MST Coordinators, 
and governance of the MST Coordinator program. The fourth report 
focused on VBA's use of trauma-informed communications in its claims 
correspondence with Veterans. VHA and VBA are taking steps to address 
OAWP's MST recommendations.

        7. Climate Review and Tracking Data

    In 2023, OAWP conducted its inaugural climate review to evaluate 
whether VA facilities and Program Offices are fostering an environment 
where employees feel safe raising concerns. OAWP climate reviews are 
critical to VA's accountability efforts. When employees feel empowered 
to blow the whistle on waste and misconduct, their disclosures can lead 
not only to a more accountable workforce, but to powerful systemic 
changes that ultimately improve the way VA serves the country's 
Veterans.
    The Compliance and Oversight Directorate is also comprised of a 
Compliance Analytics and Reporting Division (CARD) that fulfills the 
statutory mandate to track and record oversight entity recommendations. 
To date OAWP has tracked and recorded at least 1,369 reports with 7,748 
individual recommendations from OIG, OMI, OSC and the U.S. Government 
Accountability Office (GAO). CARD has begun work on reviewing and 
confirming implementation of recent recommendations and tracking 
disciplinary recommendations to identify cases of potential senior 
leader misconduct within OAWP's authority to investigate. The 
Directorate is working on operationalizing the statutory requirement to 
review recommendations by planning performance audits or reviews that 
would look at whether the VA's implementation of OIG, OMI, OSC and GAO 
recommendations actually solved the underlying problems identified by 
those oversight entities, and whether systemic issues need to be 
addressed.
    CARD also produces calendar year and quarterly reports examining 
trends in OAWP complaints and is creating a real-time dashboard that 
will be available to the field to identify critical areas/issues 
(including potential Climate Review sites). The trend analyses can be 
used to spot burgeoning problems and identify areas where education or 
focused attention would be productive. At the beginning of FY 2023, 
CARD presented its inaugural meta-analysis of oversight entities' 
patient care recommendations across Veterans Integrated Services 
Networks (VISN), essentially a composite of OIG, OMI and GAO reports on 
patient care issues, but consolidated by area of health care and VISN. 
This adds value and drives accountability by giving VISN directors 
insight into potentially systemic issues across their VISN before they 
become substantial problems.
    CARD is also responsible for tracking whistleblower retaliation 
settlement agreements. Once the agreements are received from OGC, CARD 
enters them into its custom data base, recording the underlying cases 
resolved by the settlement and the amount of settlement, among other 
things. To date over 65 settlements have been recorded. Settlements 
above a certain financial threshold amount are sent to the 
Investigative Attorneys Division for an accountability review--to 
determine if the underlying conduct that gave rise to the settlement 
needs to be addressed. If so, OAWP would conduct an investigation and 
make a disciplinary recommendation as appropriate.

                               Conclusion

    OAWP could not have done any of this without our incredible staff. 
OAWP's ongoing employee engagement efforts aim to create a supportive 
and fulfilling work environment where employees can thrive personally 
and professionally. By fostering a culture of active participation, 
open communication and continuous improvement, we are enhancing 
employee satisfaction and strengthening our organization's overall 
health.
    OAWP's Employee Engagement and Organizational Health Index (OHI) 
scores are captured through the VA's annual All Employee Survey (AES). 
During the 2023 AES (polled in June 2023), 89 percent of employees 
participated in the survey. OAWP received two awards as the highest 
Organizational Health Index scoring site and the Most Improved site for 
2023 for all VA Central Offices. The combined measures of employee 
engagement and our OHI score are a testament to OAWP's employees and 
their ongoing commitment to the VA I-CARE values of Integrity, 
Commitment, Advocacy, Respect and Excellence.
    VA is committed to accountability and OAWP employees work hard 
every day to continue to operationalize the tools provided in the 
Accountability and Whistleblower Protection Act of 2017 to protect 
whistleblowers and create a culture of accountability. Because of this 
hard work, OAWP will continue to add value and serve as an asset to the 
Department, its whistleblowers and employees, and the Nation's 
Veterans.
    Chairwoman Kiggans, Ranking Member Mrvan and Members of the Sub-
Committee on Oversight and Investigations, thank you for allowing VA 
the opportunity to discuss the progress of OAWP.
                                 ______
                                 

                  Prepared Statement of Emilee Collier

    Good morning Chair Kiggans, Ranking Member Mrvan, esteemed members 
of the subcommittee, and fellow panelists.
    Thank you for holding this important hearing on protecting the 
brave civil servants that come forward to blow the whistle at the U.S. 
Department of Veterans Affairs (VA). The U.S. Office of Special Counsel 
(OSC) is strongly committed to supporting veterans and to helping the 
VA create a positive culture of whistleblowing for its employees. 
Ensuring that whistleblowers are empowered to speak up about potential 
misconduct without fear of reprisal enables the VA to best protect the 
health and safety of our veterans.
    Indeed, as we all know, whistleblowers are an indispensable 
resource for oversight entities like the VA's Office of Accountability 
and Whistleblower Protection (OAWP), OSC, Congress, and other 
organizations seeking to promote good government and accountability. 
The statutes governing OSC's work allow us to support whistleblowers in 
three main ways. First, OSC provides a safe channel for making 
disclosures of wrongdoing. Second, OSC protects federal employees from 
prohibited personnel practices, including retaliation for 
whistleblowing. Third, OSC provides training and stands as a partner 
with other federal agencies and Congress in upholding the merit system.
    One noteworthy aspect of OSC's role as a safe channel for 
disclosures is the high degree of whistleblower involvement throughout 
the process. OSC relies on information provided by the whistleblower to 
determine whether an agency should investigate the alleged wrongdoing. 
Once we receive the whistleblower's disclosure, we make every effort to 
respond quickly to those concerns. In fact, our Disclosure Unit decides 
whether an investigation is required within 45 days in virtually every 
case. If the allegations warrant further inquiry, the Special Counsel 
will refer the case to the head of the agency, who must investigate and 
provide a report to our office. OSC then gives the whistleblower an 
opportunity to review and provide comments on the report. After taking 
the whistleblower's input into account, the Special Counsel determines 
if the report is reasonable and statutorily sufficient. Finally, OSC 
provides that determination, the report itself, and the whistleblower's 
comments to the President and to Congress.
    OSC also provides an avenue for employees to file a complaint if 
they believe they have suffered a prohibited personnel practice, 
including whistleblower retaliation. OSC's process for handling these 
cases differs significantly from our disclosure work in that, on the 
prohibited personnel practice side, our staff conduct the required 
investigations themselves. OSC has enforcement authority to pursue 
corrective and disciplinary action in these matters when appropriate. 
And our office has a highly effective alternative dispute resolution 
program, which also facilitates meaningful, often creative, relief for 
employees who file with us. As a chief in OSC's Investigation and 
Prosecution Division, I am especially pleased to note that in each of 
the last two fiscal years, staff working on prohibited personnel 
practice matters obtained record numbers of favorable actions, 
including individual and systemic relief, as well as disciplinary 
action. This combination of enforcement authorities and successful 
resolutions sends a strong message that OSC will conduct independent, 
objective inquiries in an effort to bolster whistleblower protections 
and the merit system as a whole.
    While it is imperative that OSC maintain its independence in its 
investigative work, there are many opportunities for cooperation with 
other departments and agencies. Indeed, a key element of OSC's approach 
to assisting whistleblowers is our robust outreach and training 
program, whereby we train federal managers and employees on all facets 
of OSC's mission. In FY23, OSC conducted the highest number of 
trainings in the agency's history, increasing our visibility among 
those who may need our assistance. In addition, OSC has regular 
meetings with representatives from OAWP, the VA's Office of General 
Counsel, and the VHA Office of the Medical Inspector. During these 
meetings, we discuss individual cases that merit high-level 
intervention, as well as general issues that impact our work across the 
board. Developing a good working relationship with the VA through open 
lines of communication has been critical in working toward our shared 
goal of promoting better government through transparency and 
accountability.
    We remain steadfast in our commitment to helping the VA and this 
committee provide the best possible service to veterans by ensuring 
that any reported wrongdoing receives appropriate consideration. VA 
employees are among the greatest patriots in federal service, as they 
have devoted their professional lives to serving veterans, and, of 
course, many are veterans themselves. It is imperative that they feel 
supported in doing their jobs without fear of reprisal. I am here on 
behalf of OSC to describe how our work contributes to that important 
goal.
    Thank you again for holding this hearing. I look forward to 
answering any questions you may have.
                                 ______
                                 

                   Prepared Statement of Thomas Costa
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                                 ______
                                 

                 Prepared Statement of Tristan Leavitt

    Chairman Kiggans, Ranking Member Mrvan, and members of the 
Subcommittee:
    I'm very pleased to have been invited back before this Subcommittee 
today. I appear today as the president of Empower Oversight, a 
nonpartisan nonprofit dedicated to enhancing independent oversight of 
government and corporate wrongdoing. In its two years of existence, 
Empower has conducted extensive oversight of the Department of Veterans 
Affairs (VA).\1\
---------------------------------------------------------------------------
    \1\ ``Empower Oversight probes conflicts of interest and resistance 
to Congressional oversight at the Veterans Benefits Administration,'' 
Aug. 6, 2021, https://empowr.us/empower-oversight-probes-conflicts-of-
interest-and-resistance-to-congressional-oversight-at-the-veterans-
benefits-administration; ``Did the Department of Veterans Affairs 
Enable Insider Trading?'' Sep. 21, 2021, https://empowr.us/did-the-
department-of-veterans-affairs-enable-insider-trading; Jason Foster, 
``Newly Uncovered Documents Show Senior VA Officials Smearing a 
Whistleblower to Avoid Congressional Oversight,'' Whistleblower Network 
News, Oct. 25, 2021, available at https://whistleblowersblog.org/
opinion/newly-uncovered-documents-show-senior-va-officials-smearing-a-
whistleblower-to-avoid-congressional-oversight; ``Empower Oversight 
Obtains Copy of Veterans Affairs Department Letter Being Withheld from 
Senate,'' Nov. 9, 2021, https://empowr.us/empower-oversight-obtains-
copy-of-veterans-affairs-department-letter-being-withheld-from-senate; 
``Internal Watchdog Uncovers More Evidence of Conflicts of Interest at 
the VA After Push from Empower Oversight,'' Mar. 24, 2022, https://
empowr.us/internal-watchdog-uncovers-more-evidence-of-conflicts-of-
interest-at-the-va-after-push-from-empower-oversight; ``Empower 
Oversight and Whistleblowers of America Seek Accountability for VA 
Watchdog's Findings of Ethical Violations,'' Jun. 16, 2022, https://
empowr.us/empower-oversight-and-whistleblowers-of-america-seek-
accountability-for-va-watchdogs-findings-of-ethical-violations.
---------------------------------------------------------------------------
    This Subcommittee plays an important oversight role in ensuring the 
VA properly cares for our nation's veterans. I deeply believe the 
United States of America is a land of the free because of the brave 
women and men who serve in our Armed Forces. Our nation owes them an 
immense debt of gratitude. Many know these famous words from President 
Abraham Lincoln's second inaugural address: ``With malice toward none, 
with charity for all, with firmness in the right as God gives us to see 
the right, let us strive on to finish the work we are in, to bind up 
the nation's wounds...'' They were delivered in 1865, one month before 
the end of the Civil War and Lincoln's assassination. Less well-known 
is what Lincoln said next, which for nearly 65 years served as the 
motto of the VA: ``To care for him who shall have borne the battle and 
for his widow, and his orphan.''
    Eighteen years later, when Congress contemplated adopting a merit-
based civil service system, more effectively serving the American 
people was a prime motivation for Congress. Hiring based on merit would 
ensure taxpayers received the best service possible for their hard-
earned tax dollars. As it has later been described, ``the other side of 
the merit coin'' is the removal of federal employees who are not 
providing the best service for the American people.
    When the Civil Service Reform Act of 1978 was signed into law 45 
years ago, it included new provisions for removing underperforming 
federal employees. It also established statutory protections for 
federal whistleblowers, a first in our Nation's history. These 
provisions attempted to strike a balance that Congress continues to 
grapple with today: How to ensure accountability for employee 
performance and misconduct without chilling whistleblower disclosures 
or enabling retaliation. This is usually more difficult than it sounds, 
since whistleblower retaliation is almost always disguised as 
appropriate discipline. Thus, the Civil Service Reform Act established 
the independent Merit Systems Protection Board, or MSPB, to review 
adverse personnel actions and ensure whistleblowers are protected while 
not impeding accountability for poor performers or employees committing 
misconduct. In my view, this administrative process provides a more 
cost-effective way to consider these cases than sending them directly 
to the federal court system to be decided.
    When I last testified before this Subcommittee, in July 2019, I was 
serving as the acting head of MSPB because it had no Senate-confirmed 
Board members. Later, on March 1, 2022, the Senate confirmed me to that 
Board, restoring a quorum after five years without. As a member of the 
Board, I considered case after case that hinged on the appropriateness 
of adverse personnel actions. I was always very mindful that we as 
adjudicators are fallible, that from time to time facts buried in the 
record get overlooked despite our best efforts, and that no written 
record can perfectly capture all the complicated circumstances that 
often surround personnel actions. However, I felt we tried our best to 
identify whistleblower retaliation in the cases we adjudicated while I 
was there.
    By contrast, I am concerned that our current system does not strike 
the right balance to ensure accountability for federal employees. This 
is a concern with which the Veterans Affairs Committee has grappled for 
years. In the spring of 2014, whistleblower disclosures to the U.S. 
Office of Special Counsel helped bring to light the scandal of 
veterans' wait times at the VA. Just a few months later Congress passed 
the Veterans Access, Choice and Accountability Act of 2014. That law 
authorized expedited demotion and removal timelines for senior 
executives at the VA, and gave MSPB administrative judges 21 days to 
decide appeals before they became final. After the U.S. Court of 
Appeals for the Federal Circuit held it was unconstitutional to limit 
appeals to MSPB administrative judges, who are not appointed by the 
President, Congress passed the VA Accountability and Whistleblower 
Protection Act of 2017. This law addressed the constitutionality issue 
by simply eliminating MSPB review of senior executive removal. It 
further authorized expedited demotion and removal timelines for large 
swaths of VA employees.
    As I've indicated, I believe MSPB can play an important role in 
distinguishing whistleblower retaliation from proper accountability. I 
believe it would be a serious mistake to further limit the categories 
of employees who have MSPB appeal rights. However, I do not have 
confidence that, in non-whistleblower cases, MSPB always contributes to 
protecting ``the other side of the merit coin'' by ensuring 
accountability. My experience on the Board has led me to believe the 
most important variables for accountability are not timeframes, but 
rather how MSPB sees its role in the disciplinary process.
    In the seminal 1980 case on this issue, Douglas v. Veterans 
Administration, the Board held that it ``must give due weight to the 
agency's primary discretion in exercising the managerial function of 
maintaining employee discipline and efficiency, recognizing that the 
Board's function is not to displace management's responsibility but to 
assure that managerial judgment has been properly exercised within 
tolerable limits of reasonableness... The Board's role in this process 
is not to insist that the balance be struck precisely where the Board 
would choose to strike it if the Board were in the agency's shoes in 
the first instance.'' \2\ Yet time and again since then, the Board has 
in my view displaced management's reasonable judgment regarding 
disciplinary decisions. What's more, appellate courts have limited 
latitude in reviewing Board decisions.\3\ For these reasons, I support 
statutorily lowering the standard of proof required to support 
disciplinary decisions--not just at the Department of Veterans Affairs, 
but across the civil service. Standardizing relevant personnel laws 
across the civilian workforce would reduce confusion and contribute to 
greater consistency across the federal government.
---------------------------------------------------------------------------
    \2\ 5 M.S.P.R. 280 (1981).
    \3\ See 5 U.S.C. 7703(c).
---------------------------------------------------------------------------
    That said, there is wisdom in the observation that you can't fire 
your way to excellence. At the end of the day the most important 
variable for any federal agency or department may be cultivating a 
culture of excellence and accountability--both for employees and for 
supervisors. The Office of Accountability and Whistleblower Protection 
(OAWP) would likely be best situated to contribute to building such a 
culture if investigating whistleblower retaliation was left to the far 
more experienced Office of Special Counsel, and OAWP focused on the big 
picture of addressing trends at the agency.
    Congress must also help ensure agency management receives 
sufficient training and invest in the intentional cultivation of 
leadership in federal agencies. The example at the top matters. The 
Senate recently voted to confirm as Deputy VA Secretary an official who 
did nothing to protect the confidential information of veterans and 
whistleblowers in its VIEWS system, even after she became aware of the 
problem through whistleblower disclosures.\4\ Such a lack of leadership 
or accountability sets the tone for the agency, and requires that 
Congress maintain particular vigilance at this time and vigorously 
exercise its oversight responsibilities.
---------------------------------------------------------------------------
    \4\ ``Empower Oversight Urges Scrutiny of Top VA Nominee's Failure 
to Safeguard Veterans' Info,'' Jun. 12, 2023, https://empowr.us/
empower-oversight-urges-scrutiny-of-top-va-nominees-failure-to-
safeguard-veterans-info; ``Whistleblower Coalition Groups Jointly Call 
on Senate Committee to Investigate VA Whistleblower Claims,'' Jun. 26, 
2023, https://empowr.us/whistleblower-coalition-groups-jointly call-on-
senate-committee-to-investigate-va-whistleblower-claims.
---------------------------------------------------------------------------
    Whether promoting the development of better leaders and managers, 
removing inadequate or misbehaving employees, or protecting the brave 
employees who point out the problems, we should care deeply about the 
quality of the VA workforce. They are the front lines: only through 
them can we ``care for him who shall have borne the battle and for his 
widow, and his orphan.''
    Thank you.
                                 ______
                                 

                Prepared Statement of Samantha Feinstein

    MR. CHAIRMAN:

    Thank you for the opportunity to contribute with testimony at 
today's hearing on the Department of Veterans Affairs (DVA) Office of 
Accountability and Whistleblower Protection. (OAWP) I serve as Legal 
Director of the Government Accountability Project, a non-profit, non-
partisan whistleblower support organization. This is the fourth time 
GAP has testified on OAWP, Two prior written submissions are attached 
as Exhibits 1 and 2 with a summary of GAP's qualifications to assess 
the effectiveness of whistleblower support offices like OAWP. The 
Committee's persistence in oversight reflects a genuine, bi-partisan 
commitment to provide veterans with the medical care they deserve.
    Veterans also should appreciate this committee's persistence is 
obtaining a rare bi-partisan consensus last Congress for approval of 
H.R. 8510, the Strengthening Whistleblower Protections at the 
Department of Veterans Affairs Act. I am testifying today to explain 
why this solid good government legislation is needed more than ever.
    One reason is that the DVA remains the government's most hostile 
agency for whistleblowers who challenge patient care breakdowns, 
despite the life or death consequences of its mission. As summarized 
previously, the DVA is a free speech Death Valley for government 
whistleblowers. This is not surprising, because retaliation is an 
ingrained tradition. It will take years of aggressive oversight and 
accountability before this agency respects the First Amendment or the 
Whistleblower Protection Act (WPA) in practice, rather than empty 
rhetorical promises.
    Despite this long-term challenge, it matters to give credit where 
it is due. Under prior OAWP leadership, my docket was dominated by 
whistleblowers facing OAWP retaliation from inside and outside this 
agency whose job is to protect whistleblowers. Since Ms. Maryanne 
Donaghy assumed leadership, all the OAWP reprisal cases have been 
constructively resolved and GAP has not received any new complaints of 
OAWP retaliation. OAWP administratively has restored programs such as 
counseling and Alternate Disputes Resolution (ADR) whose cancellation 
initially had sparked internal whistleblowing.
    Anecdotal leadership is no substitute for structural reforms to 
institutionalize better practices. Otherwise, depending on the whims of 
less effective leadership, the prior nightmarish mismanagement and 
abuses of power can resume at will. That is why it matters so much 
whether Congress institutionalizes reform through the sound good 
government mandate of H.R. 8510. That is why groups in the Make It Safe 
Coalition will continue our commitment as resources until this goal is 
achieved. Below is a summary of why H.R. 8520's legislative teeth are 
still needed.

    * Independent counsel. This provision should not be controversial, 
because the agency already has largely permitted OAWP lawyers to take 
control of their cases without vetoes vy the DVA Office of General 
Counsel (OGC). However, OGC still will have a decisive role in 
assessing discipline, which is the bottom line for accountability, 
deterrence and corrective action. Independent counsel is the 
cornerstone for a legitimate watchdog mission. Now is the proper time 
to institutionalize and H.R. 8510's requirement for complete structural 
independence of the current voluntary, partial improvements.

    * Transfer of investigative authority to the Office of Special 
Counsel (OSC) At firstglance, improvements in OAWP's performance appear 
to make this provision unnecessary. Unfortunately, no matter how good 
faith OAWP operates, it always will be an inherently inferior 
substitute to the Office of Special Counsel. That is because OAWP does 
not have enforcement teeth. OSC can litigate to enforce its corrective 
action recommendations after confirming retaliation. OAWP can only 
recommend that agencies engaging in harassment change their minds and 
stop. DVA bullies can and routinely do defy the recommendations with 
impunity. If OAWP retains its authority to investigate retaliation, the 
only way this role can be legitimate is if Congress expands the scope 
of H.R. 8510 to provide the Office with litigative enforcement 
authority.

    * Retaliatory state licensing board referrals. This common form of 
retaliation allows DVA to circumvent the Whistleblower Protection Act 
again with impunity to seek permanent blacklisting of agency 
whistleblowers. None of OAWP's voluntary improvements have the legal 
authority to affect this practice, which can have a worse chilling 
effect than firing from an immediate position. The loophole must be 
closed.

    * Transparency for track record. Again, the agency deserves credit 
where due. It hassignificantly expanded public disclosure for the scope 
of its work and impact. OAWP also has created a stakeholder liaison 
office that appears to operate constructively and in good faith. 
Particularly impressive is that office's Climate Review initiative, to 
evaluate office environments for whistleblowing. Again, however, 
Congress should institutionalize and complete the job. The lights for 
transparency still can be turned off at whim.

    Further, the current voluntary effort is incomplete. For example, 
OAWP now is monitoring and assessing agency corrective action on 
whistleblowing referrals. OAWP shares its evaluations with the agency 
chain of command. Unlike the Special Counsel under 5 U.S.C. 1213(e), 
however, the public does not get to see the results. Congress should 
assure that there is parity for OAWP transparency, the same as in the 
Whistleblower Protection Act. The assessments should be more than a 
management resource. They are vital for congressional and public 
oversight.
    Similarly, OAWP boasts that 95 percent of its recommendations have 
been accepted, at least in part. However, there is a transparency 
loophole for the nature of mission breakdowns, recommendations' 
substance, and a complete vacuum of data whether the ``accepted'' 
recommendations actually were implemented in good faith. Agencies 
commonly accept recommendations and promise to do better, without 
implementing them in whole or part.
    Similarly, OAWP has created a Compliance Analysis and Reporting 
system to track compliance and prepare trend analyses. However, this 
should not be merely an internal management resource. The full results 
should be required in an annual report to Congress, and posted on the 
OAWP website.

    * OAWP navigator. The agency initially had whistleblower counselors 
who played an invaluable role in helping over 1,000 whistleblowers to 
understand and functionally act on their rights. The program was 
canceled, but thankfully OAWP has restored it under current leadership 
with the navigator function. This serviced is essential for OAWP`s 
mission. It should not be controversial to legislatively 
institutionalize this voluntary initiative as a mandatory structure.

    * Alternative Disputes Resolution: OAWP initially had a 
``mentoring'' program thatachieved promising initial results for no 
fault, mediated resolution of reprisal cases. The goal was to find a 
new professional home for whistleblowers that would welcome their 
initiatives rather than suppress them. Despite promising initial 
results, the program was canceled. Under Ms. Doherty's leadership, a 
pilot ADR program has been restored. Again, it should not be 
controversial to institutionalize this pilot legislatively, mandating 
the no fault mediation dimension that has worked well previously.

    If this Committee chooses to be more ambitious than H.R, 8510, GAP 
stands behind its detailed recommendations listed in prior testimony. 
However, that bill reinforced by the counseling and ADR elements, is an 
excellent breach had to lock in a legitimate, badly needed resource for 
whistleblowers. OAWP was a good idea that went bad due to normal 
growing pains and too much discretion to abuse. You have our 
organization's unqualified commitment to be a resource finishing what 
the Committee started in the last Congress.
                                 ______
                                 

                 Prepared Statement of Joe Spielberger

    Chairwoman Kiggans, Ranking Member Mrvan, and members of the 
subcommittee, thank you for the opportunity to testify today on 
whistleblower protection and accountability at the Department of 
Veterans Affairs (VA).
    I am a policy counsel at the Project On Government Oversight 
(POGO). POGO is a nonpartisan independent watchdog organization that 
investigates and exposes waste, corruption, abuse of power, and when 
the government fails to serve the public or silences those who report 
wrongdoing. We champion reforms to achieve a more effective, ethical, 
and accountable federal government that safeguards constitutional 
principles.

POGO's Investigations of VA Abuse and Corruption

    Whistleblowers play a key role in exposing misconduct at the VA at 
great risk to themselves. Their disclosures have exposed systemic 
corruption, medical negligence, and abusive government actors. They 
have saved the lives of VA patients and safeguarded taxpayer dollars to 
provide better resources to veterans. Congress depends on 
whistleblowers in order to fully exercise its own constitutional 
oversight and legislative authorities. Unfortunately, whistleblowers 
frequently face retaliation for their disclosures while senior leaders 
are rarely held accountable for their actions.
    In coming forward, whistleblowers risk losing their jobs, ending 
their careers, suffering lifelong mental and psychological hardship, 
and facing retaliatory lawsuits or even serious criminal charges. All 
this simply for speaking out to ensure their agencies fulfill their 
missions and maintain the public's trust. Whistleblowers deserve the 
safest avenues to make legal disclosures and expose wrongdoing. Agency 
officials who retaliate against whistleblowers both violate their legal 
rights and do real harm to our government and our country. These 
officials betray the public's trust not only by allowing corruption and 
abuse of power to continue, unaddressed, but by further exacerbating 
it. That is why it is so important to hold retaliators accountable for 
their actions and ensure that whistleblowers who experience retaliation 
have a fair shot at justice and at being made whole.
    This is especially true for VA whistleblowers, whose disclosures 
can literally mean the difference between life and death. In 2014, 
whistleblowers exposed that VA hospitals were falsifying records, 
keeping secret wait lists, and allowing veterans to languish for months 
without care.\1\ At least 40 veterans died while waiting for 
appointments through the Phoenix, Arizona, VA health care system 
alone.\2\ The VA's Office of the Inspector General (IG) later told the 
House Veterans Affairs Committee that these secret wait lists 
contributed to veterans' deaths.\3\ Officials used fake wait lists and 
manipulated wait-list times to make them appear shorter, which 
reportedly allowed them to personally collect performance bonuses.\4\ 
Complaints of inaccurate VA wait lists continued, and were alleged 
nationwide in 2019.\5\ The IG later confirmed that wait-time data the 
VA relied on was inconsistent and misleading.\6\
---------------------------------------------------------------------------
    \1\ VA Office of Inspector General, Veterans Health Administration: 
Review of Alleged Patient Deaths, Patient Wait Times, and Scheduling 
Practices at the Phoenix VA Health Care System, 14-02603-267 (August 
26, 2014), https://www.va.gov/oig/pubs/VAOIG-14-02603-267.pdf.
    \2\ Scott Bronstein and Drew Griffin, ``A fatal waitlist: Veterans 
languish and die on a VA hospital's secret list,'' CNN, April 23, 2014, 
https://www.cnn.com/2014/04/23/health/veterans-dying-health-care-
delays/.
    \3\ Jim Avila, ``Phoenix Wait-Lists `Contributed' to VA Deaths,'' 
ABC News, September 17, 2014, https://abcnews.go.com/blogs/politics/
2014/09/phoenix-wait-lists-contributed-to-va-deaths/.
    \4\ Quil Lawrence, ``Audit Reveals Vast Scale of VA Waitlist 
Issues,'' NPR, June 9, 2014, https://www.npr.org/2014/06/09/320375564/
audit-reveals-vast-scale-of-va-waitlist-issues.
    \5\ Joe Davidson, ``Whistleblower says there's a secret VA wait 
list for care. The department says that's not true,'' Washington Post, 
June 3, 2019, https://www.washingtonpost.com/politics/whistleblower-
says-theres-a-secret-va-wait-list-for-care-the-department-says-thats-
not-true/2019/06/01/197e59a2-83df-11e9-bce7-40b4105f7ca0_story.html.
    \6\ Department of Veterans Affairs Office of Inspector General, 
Concerns with Consistency and Transparency in the Calculation and 
Disclosure of Patient Wait Time Data, Memo #21-02761-125 (April 7, 
2022), https://www.va.gov/oig/pubs/VAOIG-21-02761-125.pdf.
---------------------------------------------------------------------------
    Many of the whistleblowers who played a critical role in exposing 
these abusive practices paid with their careers. The VA placed a 
California pharmacy supervisor on administrative leave after he raised 
concerns about ``inordinate delays'' delivering medicine to patients. 
In Pennsylvania, a former VA doctor was removed from clinical work 
after he sounded the alarm about on-call physicians failing to report 
to the hospital. In Appalachia, a VA nurse was forced out of her job 
after reporting concerns regarding her patients being subjected to 
medical neglect.\7\ POGO's 2014 investigation into the VA amid the 
wait-list scandal exposed what insiders called a rampant ``culture of 
harassment,'' one so ``full of fear and intimidation that very few 
employees advocate for the [v]eteran.'' \8\ This culture of fear was 
not limited to employees, either. Sources told POGO that families of VA 
patients at the time reported ``fear of not being able to continue 
receiving services, if they complain, or make concerns known.'' \9\ 
This was a shameful dereliction of duty and catastrophic failure of the 
VA's core mission to care for veterans and their families and 
caregivers.
---------------------------------------------------------------------------
    \7\ Whistleblower Claims at the U.S. Department of Veterans 
Affairs: Hearing before the Senate Committee on Appropriations 
Subcommittee on Military Construction, Veterans Affairs, and Related 
Agencies (July 30, 2015) (testimony of Danielle Brian, executive 
director, Project On Government Oversight), https://www.pogo.org/
testimonies/testimony-of-pogos-danielle-brian-on-whistleblower-claims-
at-us-department-of-veterans-affairs.
    \8\ Lydia Dennett, ``Fear and Retaliation at the VA,'' Project On 
Government Oversight, July 21, 2014, https://www.pogo.org/
investigations/fear-and-retaliation-at-va.
    \9\ Dennett, ``Fear and Retaliation at the VA,'' [see note 8].
---------------------------------------------------------------------------
    Congress attempted to address this scandal by establishing the VA's 
Office of Accountability and Whistleblower Protection (OAWP) in 2017. 
Congress authorized OAWP to fulfill a critically important mandate: to 
improve VA accountability by receiving whistleblower disclosures and 
investigating allegations of retaliation and wrongdoing against senior 
executives and supervising employees.\10\ Prior to OAWP's 
establishment, POGO and other whistleblower advocates raised concerns 
about housing a central whistleblower office within the agency without 
proper independence. While it was clear that more resources were 
necessary to address the rise of whistleblower complaints, POGO 
believed the office would not be sufficiently independent from the 
agency to investigate and provide accountability.\11\ Reluctance of 
employees at the VA to come forward to their own inspector general 
indicated a culture of retaliation that likely would not be alleviated 
by the creation of another office with similar ``independence'' at the 
VA.\12\
---------------------------------------------------------------------------
    \10\ 38 U.S.C.Sec.  323(c) (2023), https://www.law.cornell.edu/
uscode/text/38/323.
    \11\ Pending Health and Benefits Legislation: Hearing before the 
Senate Committee on Veterans' Affairs (May 17, 2017) (testimony of Liz 
Hempowicz, policy counsel, Project On Government Oversight), https://
www.pogo.org/testimoneys/pogo-testimony-on-va-accountability-and-
whistleblower-protection-act.
    \12\ Hempowicz, Pending Health and Benefits Legislation [see note 
11].
---------------------------------------------------------------------------
    At the time, we warned that OAWP ``may well be a wolf in sheep's 
clothing,'' and would risk ``becoming an internal clearinghouse to help 
agency managers identify and retaliate against whistleblowers.'' \13\ 
Since then, POGO has investigated and reported about conflicts of 
interest, waste, and whistleblower retaliation within OAWP itself.\14\ 
POGO also previously warned this Subcommittee that OAWP does not 
operate as Congress intended, especially because of its lack of 
independence and inability to enforce disciplinary recommendations.\15\
---------------------------------------------------------------------------
    \13\ Daniel Van Schooten, ``POGO and Others Oppose `Trojan Horse' 
Office for VA Whistleblowers,'' Project On Government Oversight, 
September 30, 2016, https://www.pogo.org/analysis/pogo-and-others-
oppose-trojan-horse-office-for-va-whistleblowers.
    \14\ Daniel Van Schooten, `` `Terrified' of Retaliation: Inside 
Veterans Affairs Whistleblower Office,'' Project On Government 
Oversight, March 5, 2020, https://www.pogo.org/investigations/
terrified-of-retaliation-inside-veterans-affairs-whistleblower-office; 
Adam Zagorin and Nick Schwellenbach, `` `Protect the Secretary': VA 
Chief Robert Wilkie Installs Political Aide at Watchdog Investigating 
His Inner Circle,'' Project On Government Oversight, December 16, 2020, 
https://www.pogo.org/investigations/protect-the-secretary-va-chief-
robert-wilkie-instaldvjls-political-aide-at-watchdog-investigating-his-
inner-circle; Daniel Van Schooten, ``VA Whistleblower Office Wasted 
$300,000 on `Useless' Training,'' Project On Government Oversight, 
October 24, 2019, https://www.pogo.org/investigations/va-whistleblower-
office-wasted-300-000-on-useless-training.
    \15\ Rebecca Jones, ``Whistleblower Retaliation at the Department 
of Veterans Affairs,'' Project On Government Oversight, June 25, 2019, 
https://www.pogo.org/testimonies/whistleblower-retaliation-at-the-
department-of-veterans-affairs; Protecting Whistleblowers and Promoting 
Accountability: Is VA Making Progress?: Hearing before the House 
Committee on Veterans' Affairs Subcommittee on Oversight and 
Investigations (May 19, 2021) (testimony of Melissa Wasser, policy 
counsel, Project On Government Oversight), https://docs.house.gov/
meetings/VR/VR08/20210519/112646/HHRG-117-VR08-Wstate-WasserM-20210519-
U1.pdf; Ensuring Independence and Building Trust: Considering Reforms 
To Whistleblower Protections at VA: Hearing before the House Committee 
on Veterans' Affairs, Subcommittee on Oversight and Investigations 
(June 16, 2022) (testimony of Joanna Derman, policy analyst, Project On 
Government Oversight), https://docs.house.gov/meetings/VR/VR08/
20220616/114903/HHRG-117-VR08-Wstate-DermanJ-20220616-U1.pdf.

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OAWP's Lack of Independence and Enforcement Authority

    Because OAWP was established without its own in-house general 
counsel, the office is forced to coordinate with and rely on the VA's 
Office of General Counsel for legal advice and analysis concerning 
proposed disciplinary actions against senior VA leaders.\16\ The 
authorizing statute only stipulates that OAWP ``shall not be 
established as an element of the Office of the General Counsel and the 
Assistant Secretary may not report to the General Counsel,'' without 
specifying how the two offices should or should not coordinate.\17\ 
However, in practice, when an OAWP investigation results in a 
disciplinary recommendation, OAWP drafts a recommendation in 
consultation with the Office of General Counsel and sends their draft 
to that office for legal review. OAWP then engages with Office of 
General Counsel attorneys and the management officials who will decide 
whether to sustain, mitigate, or set aside the proposed disciplinary 
action.\18\
---------------------------------------------------------------------------
    \16\ Department of Veterans Affairs Office of Inspector General, 
Failures Implementing Aspects of the VA Accountability and 
Whistleblower Protection Act of 2017, Report #18-04968-249 (October 24, 
2019), 6-7, https://www.va.gov/oig/pubs/VAOIG-18-04968-249.pdf.
    \17\ 38 U.S.C.Sec.  323(c)(3)(e) (2023), https://
www.law.cornell.edu/uscode/text/38/323.
    \18\ Department of Veterans Affairs Office of Inspector General, 
Failures Implementing Aspects of the VA Accountability and 
Whistleblower Protection Act of 2017 [see note 16].
---------------------------------------------------------------------------
    This is a clear conflict of interest because, although OAWP and the 
Office of General Counsel are both housed within the VA, they have 
conflicting mandates and their interests are not the same. OAWP is 
charged with conducting objective, fact-based investigations and 
analysis and ensuring whistleblower disclosures are properly 
investigated. On the other hand, the Office of General Counsel's 
mandate is to represent the best interests and meet the legal needs of 
its client, the VA, including limiting its legal liability. POGO has 
found department general counsels often believe their job is to protect 
the public's perception of the department, future funding, and 
individual jobs of senior leaders. It is entirely inappropriate for the 
Office of General Counsel to be able to weigh in on a whistleblower 
retaliation complaint or other allegations of senior leader misconduct. 
The chance of improper consultation is too high and puts whistleblowers 
at a severe disadvantage. Agency officials can reject OAWP 
recommendations even if it finds senior officials engaged in misconduct 
or retaliation. And OAWP lacks enforcement power to implement 
disciplinary recommendations or corrective action that the VA chooses 
not to implement. Even the appearance of a conflict on the part of the 
Office of General Counsel undermines OAWP's independence and 
effectiveness.
    No internal whistleblower protection office can adequately protect 
whistleblowers without real independence from the agency it 
investigates. An office without enforcement authority is toothless, 
because at most it can only make recommendations to the agency. OAWP 
must have its own independent legal counsel, with the authority to 
prepare legal opinions without review or approval from the Office of 
General Counsel, as well as final decision-making authority for 
disciplinary recommendations. This structure is not unprecedented: It 
is used elsewhere in the federal government where independence is 
critical, especially at offices of inspectors general that have their 
own general counsel to provide unbiased and objective legal advice 
around disciplinary or other corrective recommendations.\19\
---------------------------------------------------------------------------
    \19\ Ben Wilhelm, Congressional Research Service, Statutory 
Inspectors General in the Federal Government: A Primer, R45450, updated 
May 12, 2022, https://crsreports.congress.gov/product/pdf/R/R45450.
---------------------------------------------------------------------------
    OAWP has concurred with this recommendation in the past, noting 
that its reliance on the agency's general counsel causes unnecessary 
delays in resolving cases and creates at the very least the appearance 
of a conflict of interest.\20\ Removing the bias of the agency from 
this equation would help better prevent retaliation, protect 
whistleblowers, and hold more senior officials accountable for 
misconduct.
---------------------------------------------------------------------------
    \20\ Department of Veterans Affairs, Report to The Committee on 
Veterans Affairs of the Senate and The Committee on Veterans Affairs of 
the House of Representatives on the Activities of the Office of 
Accountability and Whistleblower Protection, For the Period: June 30, 
2017 - June 30, 2018, 22 (July 2018), ANNUAL-REPORT-Office-of-
Accountability-and-Whistleblower-Protections-Activities.pdf.

---------------------------------------------------------------------------
OAWP Retaliation

    In addition to concerns about structural independence and conflicts 
of interest failing to protect whistleblowers, perhaps most concerning 
are instances where OAWP has been the source of retaliation.\21\ 
Reporting in 2020 showed that OAWP retaliated against Anthony Everett, 
a whistleblower leading the security team that protects senior VA 
officials. Everett reported to OAWP what he viewed as an ethical breach 
and a misuse of taxpayer money by two senior VA officials, then-Acting 
Deputy Secretary Pamela Powers and then-Chief of Human Resources Daniel 
Sitterly. Everett's disclosure was supposed to be kept confidential, 
but just three hours after he made his disclosure, Powers demoted him 
with no reason given.\22\
---------------------------------------------------------------------------
    \21\ Eric Katz, ``VA Office Meant to Protect Whistleblowers 
Actually Helped Retaliate Against Them, IG Finds,'' Government 
Executive (October 24, 2019), https://www.govexec.com/management/2019/
10/va-office-meant-protectwhistleblowers-actually-retaliated-against-
them-ig-finds/160847/.
    \22\ Lisa Rein, ``Biden's new VA chief inherits oversight office 
from Trump viewed as abetting corruption,'' Washington Post (February 
18, 2021), https://www.washingtonpost.com/politics/biden-mcdonough-va-
whistleblower-trump-/2021/02/16/072bab0e-5ced-11eb-b8bd-
ee36b1cd18bf_story.html.
---------------------------------------------------------------------------
    Shortly thereafter, then-VA Secretary Robert Wilkie installed 
Sitterly, who was under investigation by OAWP at the time, to be 
second-in-command of the office. This was over the objections of then-
Assistant Secretary for Accountability and Whistleblower Protection 
Tamara Bonzanto, who had already conducted a search for candidates and 
selected one to fill the position. According to POGO's sources, 
Sitterly repeatedly asked the office's staff about specific 
whistleblower cases, including whether employees he identified by name 
had made whistleblower disclosures, and whether any whistleblower 
disclosures implicated senior VA officials. Other leaders within OAWP 
reportedly replied that, for privacy and confidentiality reasons, such 
information could not be released, yet he persisted in making those 
requests. A whistleblower complaint about Wilkie also cited an exchange 
between Powers and Bonzanto regarding the role of whistleblowers at 
OAWP. According to the complaint, Bonzanto told Powers that employees 
have a right to raise concerns, to which Powers replied, ``Yes, but we 
also have to protect the Secretary,'' and that there are ``a lot of 
problematic employees in OAWP.'' \23\
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    \23\ Zagorin and Schwellenbach, `` `Protect the Secretary' '' [see 
note 14].
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    Additionally, VA employees have reported similar improper 
coordination between OAWP and the VA. This includes OAWP wrongfully 
referring whistleblower retaliation cases to other department 
components despite having jurisdiction, including to ``the very 
facilities or network offices where the complainant worked or that were 
the subject of the allegations,'' and requiring whistleblowers to 
consent to OAWP releasing their identities before investigating or 
referring their case, in direct conflict with OAWP's responsibility to 
keep whistleblowers' identities confidential.\24\ The VA's repeated 
attempts to undermine or otherwise assert undue influence over OAWP 
speaks to the need for the office's greater independence from the 
agency.
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    \24\ Eric Katz, ``VA Office Meant to Protect Whistleblowers 
Actually Helped Retaliate Against Them, IG Finds,'' [see note 21]; 
Department of Veterans Affairs Office of Inspector General, Failures 
Implementing Aspects of the VA Accountability and Whistleblower 
Protection Act of 2017, ii [see note 16].

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OAWP's Failure to Hold Senior Leaders Accountable

    Another key part of OAWP's mandate is to investigate misconduct of 
senior leaders, but early results demonstrate OAWP's failure to hold 
high-ranking officials accountable. Despite receiving nearly 2,000 
submissions from whistleblowers from June 2017 to June 2018, OAWP was 
unable to secure any meaningful disciplinary action against VA 
executives or senior leadership. In fact, over the course of OAWP's 
first year of operation, only 0.1 percent of disciplinary actions were 
taken against VA executives or senior leadership, a figure on par with 
the years prior to the office's creation. In contrast, 36.4 percent of 
disciplinary actions within the same timeframe were taken against 
lower-level VA employees, between GS rank 1 and GS rank 6.\25\
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    \25\ Department of Veterans Affairs, Report to The Committee on 
Veterans Affairs of the Senate And The Committee on Veterans Affairs of 
the House of Representatives [see note 20].
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    This failure led to the Office of Inspector General's scathing 2019 
report, which found ``significant deficiencies'' in how the VA 
Accountability and Whistleblower Protection Act was being implemented 
and that OAWP had ``floundered in its mission to protect 
whistleblowers.'' \26\ The report even found that in some cases, OAWP 
investigations were instruments of retaliation.\27\ Despite this, 
accountability was scarce. From June 23, 2017, to March 22, 2019, 
officials involved in covered executive disciplinary actions 
(proposing, deciding, or grievance officials) mitigated the discipline 
recommended by OAWP in 32 of the 35 covered executive cases that 
proceeded to a final decision. OAWP's recommendation was accepted only 
three times.\28\
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    \26\ Department of Veterans Affairs Office of Inspector General, 
Failures Implementing Aspects of the VA Accountability and 
Whistleblower Protection Act of 2017, ii [see note 16].
    \27\ Department of Veterans Affairs Office of Inspector General, 
Failures Implementing Aspects of the VA Accountability and 
Whistleblower Protection Act of 2017, iv, 53 [see note 16].
    \28\ Department of Veterans Affairs Office of Inspector General, 
Failures Implementing Aspects of the VA Accountability and 
Whistleblower Protection Act of 2017, 37 [see note 16].
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    During a 2022 subcommittee hearing on this topic, then-Subcommittee 
Chair Chris Pappas (D-NH) reported that in 2021 OAWP made 15 
disciplinary recommendations against senior leaders who retaliated, but 
the VA acted on only five, and only fully implemented one.\29\ Then-
Ranking Member Tracey Mann (R-KS) reported that an investigation into a 
senior official found that they did retaliate, and even though OAWP 
recommended discipline and the VA agreed, it was never carried out: The 
report was allegedly delayed for more than a year, then finalized the 
same week the individual retired. As Representative Mann analogized, 
``The fox is guarding the hen house, and it's time for a change.'' \30\ 
Without more accountability, the VA sends a message to its officials 
that they can act with impunity, especially regarding senior leader 
misconduct and whistleblower retaliation.
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    \29\ Ensuring Independence and Building Trust: Considering Reforms 
to Whistleblower Protections at VA: Hearing before the House Committee 
on Veterans' Affairs Subcommittee on Oversight and Investigations, 
117th Cong. (June 16, 2022), https://www.youtube.com/
watch?v=RzdMvL_vb_w.
    \30\  Ensuring Independence and Building Trust: Hearing before the 
House Committee on Veterans' Affairs Subcommittee on Oversight and 
Investigations [see note 29].

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Recent Improvements

    OAWP leadership deserves credit for implementing recommendations 
from the 2019 report from the Office of the Inspector General, 
including hiring needed staff, conducting educational training 
exercises, and significantly reducing the backlog of investigations. 
However, OAWP's larger structural issues continue to undermine the 
office's independence and ability to fulfill its important mission and 
mitigate retaliation.
    The Office of Special Counsel continues to receive far more cases 
from VA employees than any other agency, a majority of which (69 
percent) involve alleged whistleblower retaliation.\31\ The percentage 
of favorable actions in VA whistleblower retaliation cases at the 
Office of Special Counsel increased from 3 percent in fiscal year 2018 
to 10 percent in FY 2022. However, while the total number of VA 
whistleblower retaliation cases has generally decreased over the last 
five years, the proportion of VA cases of prohibited personnel 
practices that include a whistleblower retaliation allegation has 
generally increased.
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    \31\  Office of Special Counsel, Annual Report to Congress for 
Fiscal Year 2023, (June 26, 2023), https://osc.gov/Documents/Resources/
Congressional%20Matters/Annual%20Reports%20to%20Congress/
FY%202022%20Annual%20Report%20to%20Congress.pdf; Government 
Accountability Office, VA Whistleblowers: Resolution Process for 
Retaliation Claims, GAO-23-106111 (2023), https://www.gao.gov/assets/
gao-23-106111.pdf.
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    Finally, while we are hopeful about improvements that new OAWP 
leadership has made to the culture of whistleblowing at the VA, any 
such improvements can easily be undone by future leadership and are no 
substitute for the structural reforms that OAWP needs.

Ensuring Due Process

    We appreciate the bipartisan commitment to holding senior leaders 
accountable for retaliation and other misconduct and the urgency to 
address this issue. At the same time, accountability must include 
necessary due process rights for all VA employees. Any departure from 
that due process sets the agency up for further scandal, low morale, 
and mission failure. Streamlining removal processes may be one way to 
rid the agency of bad actors, but it should not come at the cost of 
stripping hard-fought workplace protections from all employees, 
including whistleblowers themselves.
    Without independence from their parent agencies, self-policing 
entities will continue to protect senior leaders while facilitating the 
removal of lower-level employees, placing whistleblowers at further 
risk of retaliation. Stripping civil service protections is a surefire 
way to curtail whistleblowing, because employees who are already 
vulnerable to retaliation will face increased obstacles to coming 
forward. But if, on the contrary, employees have full civil service 
protections and safe avenues to report wrongdoing, it will empower more 
whistleblowers to speak out and expose misconduct, ensuring the VA can 
better fulfill its mission of serving veterans and their families. The 
path to better accountability is to provide for OAWP's independence 
from the agency; ensure that senior leaders' misconduct is swiftly and 
properly investigated; authorize OAWP to enforce disciplinary 
recommendations; and ensure that whistleblowers are protected and, when 
faced with retaliation, have a fair shot to prevail on the merits of 
their claims and to be made whole.
    POGO is pleased to see this subcommittee engaging on whistleblower 
policy. We encourage Congress to act expeditiously to provide OAWP with 
its own independent legal counsel with final determination for 
disciplinary recommendations and enforcement authority to ensure that 
the VA holds senior leaders accountable for retaliation and other 
misconduct. With these suggested reforms, OAWP can become more 
independent, better protect whistleblowers, ensure unbiased reviews of 
allegations, and bring about more accountability for agency officials.
    Thank you again for inviting me to testify before you today. POGO 
is committed to working closely with this subcommittee to enact these 
recommendations and further explore how Congress can better protect VA 
whistleblowers and ensure senior leaders are held accountable for their 
actions.
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                   Prepared Statement of Paul Pearson