[Congressional Record Volume 168, Number 157 (Wednesday, September 28, 2022)]
[House]
[Pages H8190-H8192]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STRENGTHENING WHISTLEBLOWER PROTECTIONS AT THE DEPARTMENT OF VETERANS
AFFAIRS ACT
Mr. TAKANO. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 8510) to amend title 38, United States Code, to make certain
improvements to the Office of Accountability and Whistleblower
Protection of the Department of Veterans Affairs, and for other
purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 8510
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Strengthening Whistleblower
Protections at the Department of Veterans Affairs Act''.
SEC. 2. COUNSEL OF OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER
PROTECTION.
Subsection (e) of section 323 of title 38, United States
Code, is amended--
(1) by inserting ``(1)'' before ``The Office''; and
(2) by adding at the end the following new paragraph:
``(2) The Assistant Secretary shall appoint a Counsel of
the Office, who shall be a career appointee in the Senior
Executive Service and shall report to the Assistant
Secretary. The Counsel shall provide the Assistant Secretary
with legal advice on all matters relating to the Office. In
accordance with subsection (e), the Assistant Secretary may
hire the appropriate staff for the Counsel to provide such
legal advice.''.
SEC. 3. MODIFICATIONS TO FUNCTIONS OF OFFICE OF
ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION.
Subsection (c)(1) of such section is amended--
(1) by striking subparagraphs (A) and (B);
(2) by redesignating subparagraphs (C) through (G) as
subparagraphs (A) through (E), respectively;
(3) in subparagraph (A), as so redesignated, by inserting
``and allegations of whistleblower retaliation'' after
``disclosures'';
(4) by striking subparagraph (B), as so redesignated, and
inserting the following new subparagraph:
``(B) Referring employees of the Department to the Office
of Special Counsel so the Office of Special Counsel may
receive whistleblower disclosures and allegations of
whistleblower retaliation.''; and
(5) by striking subparagraphs (H) and (I).
SEC. 4. EXPANSION OF WHISTLEBLOWER PROTECTIONS.
(a) Clarification of Prohibited Personnel Action.--Section
731(c) of such title is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by inserting
``, or threatening to take or fail to take,'' after ``failing
to take''; and
(B) in subparagraph (A), by inserting ``, or with respect
to an allegation of such a disclosure'' before the semicolon;
(2) in paragraph (3), by inserting ``, making a referral to
boards of licensure,'' after ``negative peer review''.
(b) Function of Office of Accountability and Whistleblower
Protection.--Section 323(g) of such title is amended by
adding at the end the following new paragraph:
``(4) The term `prohibited personnel action' has the
meaning given such term in section 731(c) of this title.''.
SEC. 5. TRACKING AND ENFORCEMENT OF RECOMMENDATIONS AND
SETTLEMENT AGREEMENTS REGARDING WHISTLEBLOWERS.
Subsection (c) of section 323 of such title, as amended by
section 4, is further amended--
(1) in paragraph (1), by adding at the end the following
new subparagraphs:
``(I) Tracking the negotiation, implementation, and
enforcement of settlement agreements entered into by the
Secretary regarding claims of whistleblower retaliation,
including with respect to the work of the General Counsel of
the Department regarding such settlements.
``(J) Tracking the determinations made by the Special
Counsel regarding claims of whistleblower retaliation,
including--
``(i) any disciplinary action for the individual who
engaged in whistleblower retaliation; and
``(ii) determinations regarding the need for settlement as
identified by the Special Counsel, and any settlement
resolving claims of whistleblower retaliation entered into by
the Secretary with the whistleblower.''; and
(2) by adding at the end the following new paragraph:
``(4)(A) In carrying out subparagraph (I) of paragraph (1),
the Assistant Secretary shall, in consultation with the
General Counsel, establish metrics and standards regarding--
``(i) the timely implementation of settlement agreements
entered into by the Secretary regarding whistleblower
retaliation; and
``(ii) reasonable restitution and restoration of
employment, and other relief for whistleblowers; and
``(B) The Assistant Secretary shall establish a secure
electronic system to carry out subparagraphs (I) and (J) of
paragraph (1) in a manner that ensures the confidentiality of
the identity of a whistleblower.''.
SEC. 6. TRAINING AND INFORMATION.
Section 323 of such title is further amended--
(1) in subsection (c)(2), by striking ``receive anonymous
whistleblower disclosures'' and inserting ``provide
information to employees of the Department regarding the
rights of and procedures for whistleblowers'';
(2) by redesignating subsection (g) as subsection (i); and
(3) by inserting after subsection (f) the following new
subsections:
``(g) Training.--The Assistant Secretary shall--
``(1) develop, in consultation with the Special Counsel,
annual training on whistleblower protection and related
issues;
``(2) provide and make such training available to employees
of the Department; and
``(3) disseminate training materials and information to
employees on whistleblower rights, whistleblower disclosures,
and allegations of whistleblower retaliation, including any
materials created pursuant to section 733 of this title.''.
SEC. 7. IMPROVEMENTS TO ANNUAL REPORTS.
Subsection (f) of section 323 of such title is amended--
(1) in paragraph (1)(B)(ii), by striking ``subsection
(C)(1)(G)'' and inserting ``subsection (c)(1)(E)'';
(2) in paragraph (2)--
(A) by striking ``under subsection (c)(1)(I)'' and
inserting ``by the Special Counsel''; and
(B) by inserting ``not later than 60 days after such date''
before ``the Secretary shall''; and
(3) by adding at the end the following new paragraph:
``(3) Not later than June 30, 2023, and semiannually
thereafter, the Secretary shall submit to the Committees on
Veterans' Affairs of the House of Representatives and the
Senate a report on settlements described in paragraph (1)(I)
of subsection (c), including, with respect to the period
covered by the report--
``(A) the number of settlements under negotiation or
executed, and the number of executed settlements that have
not been fully implemented;
[[Page H8191]]
``(B) the explanation as to why any such executed
settlement has not been fully implemented;
``(C) a description of the metrics described in paragraph
(4)(A) of such subsection; and
``(D) identification of settlement agreements that are not
meeting such metrics and standards, or for which the
Assistant Secretary is aware of a determination that a breach
of agreement has been found.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California (Mr. Takano) and the gentleman from Illinois (Mr. Bost) each
will control 20 minutes.
The Chair recognizes the gentleman from California.
General Leave
Mr. TAKANO. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on H.R. 8510, as amended.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. TAKANO. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, H.R. 8510, as amended, the Strengthening Whistleblower
Protections at the Department of Veterans Affairs Act, is an important
bill that will protect and support VA employees who report wrongdoing
within the Department.
I commend Representatives Chris Pappas and Tracey Mann, the chairman
and ranking member of our Subcommittee on Oversight and Investigations,
for their work over the past few years on this issue.
The subcommittee has been tireless in its examination of VA policies
and procedures for protecting whistleblowers and disciplining those who
retaliate against them. When retaliation occurs, VA must make whole a
whistleblower who was unfairly punished for speaking truth to power.
This is not only the right thing to do; it is the law.
During the subcommittee's hearings on this issue, we heard firsthand
accounts from several individuals who experienced long waits for
justice despite confirmed findings of retaliation. VA can and must do
more to protect whistleblowers.
I support Chairman Pappas and Ranking Member Mann's bipartisan
legislation. It would promote independence and strengthen the mission
of VA's Office of Accountability and Whistleblower Protection.
It would also streamline duplicative investigations and send a clear
message that retaliation against those who report wrongdoing will not
be tolerated.
This bill has the support of several national organizations that
advocate on behalf of government whistleblowers and was favorably
reported by the full Veterans' Affairs Committee last week.
Madam Speaker, I urge all of my colleagues to support this
legislation, and I reserve the balance of my time.
Mr. BOST. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I rise today in support of H.R. 8510, as amended.
Following the access scandal of 2014, Congress enacted the VA
Accountability Act. The Accountability Act is meant to make it easier
for VA to hold bad employees responsible for their actions. The law
also created a new VA office intended to protect whistleblowers and
conduct investigations.
Unfortunately, this office has never lived up to the standard that
whistleblowers deserve. In 2021, 80 percent of the OAWP recommendations
for discipline were ignored by the VA. It is time to refocus their
mission.
H.R. 8510, as amended, would require VA employees with complaints to
be referred to the Office of Special Counsel. The OSC is an independent
office which has the authority to receive, manage, and investigate
allegations of whistleblower retaliation at the VA.
The OSC has a respected history of conducting objective
investigations. As such, I am convinced that the OSC will do a better
job of holding senior VA employees accountable than the OAWP.
This bill was drafted with valuable input from stakeholders and
enjoys broad support.
Madam Speaker, I am pleased that Congressman Pappas and Congressman
Mann have come together to author this important bipartisan proposal,
and I urge my colleagues to support the bill.
Madam Speaker, I reserve the balance of my time.
Mr. TAKANO. Madam Speaker, I yield 5 minutes to the gentleman from
New Hampshire (Mr. Pappas), the chairman of the Subcommittee on
Oversight and Investigations for the Veterans' Affairs Committee.
Mr. PAPPAS. Madam Speaker, I rise in support of my bipartisan
legislation, H.R. 8510, the Strengthening Whistleblower Protections at
the Department of Veterans Affairs Act.
It is a bill that improves policies and procedures to better protect
VA whistleblowers. It also promotes independence and removes conflicts
of interest at VA's Office of Accountability and Whistleblower
Protection.
Whistleblowers play a critical role in holding the Federal Government
and its agencies accountable for waste, fraud, abuse, and
mismanagement. When employees of the Department of Veterans Affairs
witness issues that put the health, safety, and well-being of veterans
at risk, VA staff should feel encouraged to speak out without fear of
retaliation. This would encourage corrective action to be taken and no
harm to the whistleblower.
In reality, however, too often the messenger is punished. The
Subcommittee on Oversight and Investigations that I chair has done
years of work on this issue.
Alongside Ranking Member Tracey Mann, we have conducted multiple
hearings looking into this problem. Our efforts have highlighted the
individual stories of whistleblowers who have lost their jobs or faced
other retaliatory actions as a result of their disclosures.
Further, whistleblowers often wait years to be made whole after
experiencing retaliation under current Department policies and
procedures.
The testimony from three previous VA employees disclosed VA
whistleblowers are likely to face retaliation, including the loss of
their position, and are forced to wait years for justice.
This bipartisan bill will make major changes to how whistleblower
claims are handled, strengthening accountability through the process.
The bill ends VA's authority to investigate whistleblower retaliation
complaints and, instead, relies on the independent U.S. Office of
Special Counsel to ensure objectivity over the process.
OSC is an independent Federal investigative agency that has high
trust within the whistleblower community. They have the resources and
autonomy needed to do this work.
It will also require VA's Office of Accountability and Whistleblower
Protection to strengthen accountability over settlement agreements for
VA employees who suffered retaliation which provide financial
restitution and guarantees of reemployment.
Further, the bill will reaffirm OAWP's responsibility to provide
resources to VA employees on whistleblower rights, including training.
These reforms will ensure whistleblowers feel safe reporting issues
within the Department.
We can't continue to allow whistleblowers to be punished for speaking
out, and we have to make sure we are doing all we can to protect VA
whistleblowers. It is not only the law; it is also the right thing to
do to protect whistleblowers from retaliation.
My colleague and ranking member of the Subcommittee on Oversight and
Investigations, Congressman Tracey Mann, co-led this bill with me to
promote independence and strengthen the mission of VA's whistleblowers
office. I thank Congressman Mann and his staff for their dedication and
hard work on this issue.
I thank all the members of the Veterans' Affairs Committee for their
support of this bill last week, and I appreciate the support from the
whistleblower advocacy groups, including the Project on Government
Oversight, the Whistleblowers of America, and the Government
Accountability Project, as well as VA's labor union, AFGE.
{time} 2100
So once this is enacted, this bill will ensure that the protections
are on the books at the Department of Veterans Affairs that will
strengthen independence and the mission of VA's whistleblower office.
Madam Speaker, I urge the full House to support passage.
[[Page H8192]]
Mr. BOST. Madam Speaker, I yield 3 minutes to the gentleman from
Kansas (Mr. Mann), my good friend, who has worked so hard on this
issue.
Mr. MANN. Madam Speaker, I rise today in support of legislation that
I co-introduced with Congressman Pappas, H.R. 8510, the Strengthening
Whistleblower Protections at the Department of Veterans Affairs Act.
Holding government accountable requires reasonable whistleblower
protection. VA employees take a risk when exposing fraud, corruption,
or any wrongdoing of any kind, and they deserve to have their claims
investigated, and to have protection from retaliation.
The VA's Office of Accountability and Whistleblower Protection was
created with good intentions but has never lived up to the expectations
of whistleblowers or of this Congress. In 2021, 80 percent of all the
disciplinary recommendations that OAWP made were either changed or
simply ignored. Here are just two examples of the many troubling
stories that my colleagues and I have heard during our hearings.
At one facility, OAWP recommended a range of discipline from 12-day
suspension to removal for three supervisors who engaged in
whistleblower retaliation. VA officials disagreed, however, and the
individuals received no disciplinary action.
At another facility, OAWP recommended a range of discipline from
demotion to removal for an individual who retaliated against and
harassed an employee. VA officials believed the file lacked certain
testimony and evidence and the individual received no disciplinary
action.
Despite the efforts of many dedicated VA staff, these cases, and
others like them, highlight the need for a change in OAWP's roles and
responsibilities. Veterans, whistleblowers, and taxpayers deserve
better. H.R. 8510 would remove OAWP's investigative authority, and
instead, direct OAWP to refer whistleblowers to the Office of Special
Counsel, an independent agency, which has a much better track record
for whistleblower investigations. This bill would also require OAWP to
track settlement negotiations and agreements between VA employees and
the Department and refocus the office on providing training to
employees on whistleblower rights.
This legislation is an example of the good that Congress can do when
we work together. I look forward to its swift passage through the
House, and I urge my colleagues to support this important bill.
Mr. TAKANO. Madam Speaker, I have no further speakers, I am prepared
to close, and I reserve the balance of my time.
Mr. BOST. Madam Speaker, I encourage all my colleagues to support
this bill, and I yield back the balance of my time.
Mr. TAKANO. Madam Speaker, I ask all my colleagues to join me in
passing H.R. 8510, as amended, the Strengthening Whistleblower
Protections at the Department of Veterans Affairs Act, and I yield back
the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from California (Mr. Takano) that the House suspend the rules
and pass the bill, H.R. 8510, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. ROY. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
____________________