[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]





 
 THE VA ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION ACT: ONE YEAR LATER

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

                             JOINT HEARING

                               before the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                                and the

                  SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                         TUESDAY, JULY 17, 2018

                               __________

                           Serial No. 115-70

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
       
       
       
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             U.S. GOVERNMENT PUBLISHING OFFICE 
 35-808                WASHINGTON : 2019        
 
 
        
        
        
        
                     COMMITTEE ON VETERANS' AFFAIRS

                   DAVID P. ROE, Tennessee, Chairman

GUS M. BILIRAKIS, Florida, Vice-     TIM WALZ, Minnesota, Ranking 
    Chairman                             Member
MIKE COFFMAN, Colorado               MARK TAKANO, California
BILL FLORES, Texas                   JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American    ANN M. KUSTER, New Hampshire
    Samoa                            BETO O'ROURKE, Texas
MIKE BOST, Illinois                  KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine                J. LUIS CORREA, California
NEAL DUNN, Florida                   CONOR LAMB, Pennsylvania
JODEY ARRINGTON, Texas               ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana              SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto 
    Rico
BRIAN MAST, Florida
                       Jon Towers, Staff Director
                 Ray Kelley, Democratic Staff Director

                  SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

                    JODEY ARRINGTON, Texas, Chairman

GUS BILIRAKIS, Florida               BETO O'ROURKE, Texas, Ranking 
BILL FLORES, Texas                       Member
JIM BANKS, Indiana                   MARK TAKANO, California
BRIAN MAST, Florida                  LUIS CORREA, California
                                     KATHLEEN RICE, New York

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.

                            C O N T E N T S

                              ----------                              

                         Tuesday, July 17, 2018

                                                                   Page

The VA Accountability And Whistleblower Protection Act: One Year 
  Later..........................................................     1

                           OPENING STATEMENTS

Honorable David P. Roe, Chairman.................................     1
Honorable Mark Takano, Ranking Member............................     3

                               WITNESSES

Peter O'Rourke, Acting Secretary, U.S. Department of Veterans 
  Affairs........................................................     4
    Prepared Statement...........................................    49

        Accompanied by:

     Mr. Kirk Nicholas, Acting Executive Director for the Office 
        of Accountability and Whistleblower Protection, U.S. 
        Department of Veterans Affairs

    Mr. Nathan Maenle, Principal Deputy Assistant Secretary for 
        the Office of Human Resources and Administration, U.S. 
        Department of Veterans Affairs

Mr. J. David Cox Sr., National President, American Federation of 
  Government Employees (AFGE)....................................    36
    Prepared Statement...........................................    52

                       STATEMENTS FOR THE RECORD

Daniel Martin....................................................    57
Roger G. French, Executive Director of Human Resources, VAPSHCS-
  Retired Consultant FCC Consulting/Employee Relations...........    60
Dale J. Klein, M.D...............................................    63
Jacqueline Garrick, LCSW-C, Executive Director, Whistleblowers of 
  America........................................................    65


 THE VA ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION ACT: ONE YEAR LATER

                              ----------                              


                         Tuesday, July 17, 2018

            Committee on Veterans' Affairs,
                    U. S. House of Representatives,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:11 a.m., in 
Room 334, Cannon House Office Building, Hon. David R. Roe 
presiding.
    Present: Representatives Roe, Bilirakis, Coffman, Bost, 
Dunn, Arrington, Higgins, Bergman, Banks, Mast, Takano, 
Brownley, Kuster, Rice, Correa, Lamb, Esty, and Peters.

          OPENING STATEMENT OF DAVID P. ROE, CHAIRMAN

    The Chairman. Good morning. The Committee will come to 
order. Welcome and thank all of you for joining us today at the 
Full Committee hearing examining the implementation of the 
Department of Veterans Affairs Accountability and Whistleblower 
Protection Act of 2017.
    Last year's enactment of this bipartisan legislation was a 
culmination of years of work by Members of this Committee, and 
I believe is also one of the most consequential reforms to the 
Federal Civil Service System in decades. This law was put in 
place to provide the Secretary the tools he or she needs to 
protect whistleblowers and hold poor-performing employees 
accountable.
    I have said time and time again that the vast majority of 
VA employees are good, hardworking men and women who take the 
VA's core mission to heart, but before this law the bad actions 
of a few tainted the good names of many for far too long.
    The drafting of this legislation did not happen in a 
vacuum. Ideas to improve the legislation were received from all 
corners, to include Federal employee unions. It was not an 
ideological or partisan attack on Federal workers. In fact, the 
final negotiated package passed the U.S. Senate by voice vote; 
the full House by a vote of 368 to 55, including 23 of the 24 
Members of this Committee and 137 Democrats; and was supported 
by 18 Veterans Service Organizations. While I am proud, they 
were able to come together and craft this important 
legislation, our role in overseeing the law's implementation is 
equally important, and that is why we are here today.
    The only way to bring true accountability to VA is to 
create a culture where employees want to come to work and serve 
veterans. This will only happen when good work is consistently 
rewarded and when it is clear the Department won't tolerate 
employees who do not live up to the high standards required of 
public service.
    We all remember the stories of poor performance and 
misconduct this Committee and others uncovered about a select 
few VA employees who had refused to, or were incapable of, 
adhering to these high standards. We found time and time again 
that civil service laws make it extremely difficult and time-
consuming to hold an employee accountable who didn't share VA's 
values, even in instances where the employee in question had 
broken the law.
    I think every one of us on this dais can agree that this is 
unacceptable and that our veterans deserve better.
    So, today we are here to discuss how VA is moving toward 
this goal of sustainable accountability, and efforts to educate 
employees and managers about this new authority.
    I also want to make it clear that while this law made it 
easier to discipline poor employees, it did not give VA the 
license to use this authority to target employees, no matter 
their position or grade, or to retaliate against 
whistleblowers. The Department and this Committee continue to 
rely on whistleblowers to come forward and shed the light on 
waste, fraud, and abuse throughout VA, and I hope to learn more 
about how implementation of this law is or is not protecting 
these courageous employees. We can't measure success of this 
law's implementation against a number of disciplinary actions, 
but we can measure failure, and if one single man or woman is 
afraid to come forward to report wrongdoing because of fear of 
retaliation, to me that would be a failure.
    Before I recognize Ranking Member Takano, I do want to 
briefly touch on the operations of the Office of Accountability 
and Whistleblower Protection, or OAWP. When we were negotiating 
the law that created this office, there were concerns expressed 
about creating yet another office at the VA that could 
duplicate efforts of other offices, when what we really needed 
to do was empower managers to make the right decisions and hold 
them accountable when they failed to do so. While the employees 
and management of OAWP should be lauded for their efforts to 
improve accountability within the VA, I am concerned that OAWP 
seeks to expand its role beyond what Congress intended. 
Particularly, I am concerned by some of the recommendations 
that the VA submitted to Congress as part of its June 30th 
annual report and about the growth of this office, and I look 
forward to addressing those concerns today.
    The goal of this new authority was to provide the Secretary 
a tool in their toolbox to discipline poor employees, and I am 
worried that if we are not careful the OAWP may turn into an 
entirely new toolbox; we must ensure this doesn't happen. Also, 
I am certainly no fan of red tape or bureaucracy. I am 
concerned about the apparent lack of formal written policies or 
procedures for operations at OAWP. Formal policies and 
procedures would promote consistent OAWP decisions, and inspire 
confidence in their worth and work product.
    I also remain concerned about the ongoing conflict between 
Mr. O'Rourke and the Inspector General over the IG's access to 
OAWP's database of complaints. Mr. O'Rourke, I hope that you 
and Mr. Missal have found a way to put this unnecessary 
distraction behind us, and I understand that you have.
    Finally, I want to reiterate this Committee will not shy 
away from our oversight role to investigate improper usage and 
implementation of this law. However, the only way to do so is 
to continue this Committee's bipartisan tradition, examine 
issues with statistics and facts, and not with innuendo, 
anecdotal accounts, or partisan agendas.
    The Chairman. I now yield to Ranking Member Takano for any 
opening statements that he might have.

        OPENING STATEMENT OF MARK TAKANO, RANKING MEMBER

    Mr. Takano. Thank you, Mr. Chairman, and I thank you for 
calling this important hearing.
    When the Accountability Act passed last summer, I voted for 
it with a great deal of caution. I was cautiously optimistic 
that it would do what it set out to do, which was to improve 
care by making it easier to remove bad employees.
    I understood that the connection between dismissing bad 
employees and improved care was superficial, but the bill was 
the best of several legislative attempts to address the VA's 
significant issues in its management of human resources. I did 
vote against several of those legislative attempts because I 
felt that there were just too many bad things in those bills. 
But I voted for this bill because I hoped that the VA would 
take the tools we were providing, so that they could not only 
address bad employees, but also protect good employees by 
improving the agency's overall human resources functions and 
morale.
    But now that we are more than a year out, I have real 
concerns about how the VA is using the tools that Congress 
provided in the Accountability Act. Of the 1,096 removals 
during the first 5 months of 2018, the majority of those fired 
were housekeeping aides. This has no doubt contributed to the 
fact that there are currently over a dozen Medical Centers with 
housekeeping vacancies. I have seen firsthand the problems 
caused by vacancies in housekeeping staff at the Loma Linda 
University Medical Center near my district, and I see how that 
directly impacts care for veterans.
    I also find it hard to believe that there are large numbers 
of housekeeping aides whose performance is so poor that it 
cannot be addressed. If that is truly the case, then it stands 
to reason that there are also management issues behind their 
poor performance. But of those 1,096 removals, only 15 were 
supervisors, which is less than 1.4 percent. Firing rank-and-
file employees does nothing to resolve persistent management 
issues; instead, it just leads to worse care from unnecessary 
vacancies.
    This type of implementation is not the intent of the 
Accountability Act and I hope everyone on this Committee can 
agree that it is not possible to fire your way to excellence. 
In fact, this was a view that was shared by the Commission on 
Care's findings, which also found that the VA's human resources 
management was under-staffed and under-resourced. This led to 
problems with poor hiring practices and poor workplace culture. 
This further exacerbated the VA's difficulties in hiring the 
best and the brightest, and therefore creating a vicious cycle.
    The Accountability Act was supposed to be the VA's tool to 
break this vicious cycle, but in the past year we have heard 
indications that VA's human resources management is in more 
disarray than ever. A high turnover rate is never a good sign 
of good management and good management starts at the top.
    For months, we have seen a steady stream of reports in the 
press of a hostile work environment in the VA's human resources 
division, previously led by Peter Shelby. Then just last week, 
it was reported that Mr. Shelby himself was fired. Although the 
VA released a statement saying that he left to pursue other 
opportunities and whether any of those reports are true, the 
damage to VA's HR management has already been done. I am not 
sure how the VA is supposed to improve its human resources 
management when such stories of its toxic environment at the 
top are rampant.
    And, finally, it is in the midst of this turmoil that this 
Administration released a new Executive Order that limits the 
amount of official time for employees to more than 25 percent. 
As we all know, official time is not spent on union activities. 
Let me repeat that. Official time is not spent on union 
activities, because spending time on union activities is 
illegal. Rather, it is time spent by union officials to perform 
human resources functions and ensure a well-functioning work 
environment for all VA employees.
    With the current turmoil and vacancies in the VA's HR 
division, the human resources function that employees on 
official time perform is more important than ever in ensuring 
that care for veterans is not impacted. For the VA to sustain 
cuts to essential human resources functions from both ends like 
this does not inspire confidence that performance is improving 
at the agency.
    The goal of the Accountability Act was not to further 
undercut the already strained VA workforce. Firing cannot 
replace good management. I hope our discussion today will shed 
more light on what the VA is doing in its implementation of the 
Accountability Act to ensure better performance among its 
employees through better management. I thank the witnesses for 
being here today and I look forward to their testimony.
    The Chairman. I thank the gentleman for yielding.
    On our first panel today, we welcome back Mr. Peter 
O'Rourke, Acting Secretary of the Department of Veterans 
Affairs. And Mr. O'Rourke and I have spent the weekend in Reno 
with the Disabled American Veterans, they had a great 
convention out there. I thought it was--we spent a couple of 
hours on a panel together and I thought it was time well spent.
    Mr. O'Rourke is accompanied by Mr. Kirk Nicholas, the 
Executive Director of the Office of Accountability and 
Whistleblower Protection; and Mr. Nathan Maenle, Principal 
Deputy Assistant Secretary of the Office of Human Resources and 
Administration.
    Mr. O'Rourke, you are now recognized.

                  STATEMENT OF PETER O'ROURKE

    Secretary O'Rourke. Thank you, Mr. Chairman, Ranking Member 
Takano, distinguished Members of the Committee. I am pleased to 
be here with Nathan Maenle, Principal Deputy Assistant 
Secretary for the Office of Human Resources Administration, and 
Kirk Nicholas, Executive Director of the Office of 
Accountability and Whistleblower Protection.
    Let me get right to the point. Retaliation against 
employees who identify a legitimate problem or report that 
there may be a violation of law, rule, or regulation is 
absolutely unacceptable; I will not tolerate it. Protecting 
employees from retaliation is a moral obligation of VA leaders, 
a statutory obligation, and a priority for this department.
    We will take prompt action to hold accountable those 
individuals engaged in whistleblower retaliation and that 
includes appropriate disciplinary action.
    I am confident that the overwhelming majority of our 
employees are here to do the right thing. Our best employees' 
own accountability, because they are here to make a positive 
difference in the lives of veterans. Congress and VA leadership 
spent years creating the right formula for addressing 
accountability and it is why we are talking today.
    The problems that surfaced at VA in 2014 uncovered serious 
shortfalls in the way some leaders dealt with employees who 
made disclosures. Those problems led to the establishment of 
the Interdisciplinary Crisis Response Team in July of that year 
and expanded into the Office of Accountability Review. The 
purpose was to improve transparency, and elevate the visibility 
of senior leadership misconduct and their investigations. Those 
initial efforts shaped a new cultural direction for VA.
    This is why Congress passed and the President signed the 
Accountability and Whistleblower Protection Act. The President 
and Congress ensured we had the right system and processes in 
place to protect employees who raised concerns and exposed 
problems or issues, and to also hold accountable those who 
engage in misconduct. The President's Executive Order and 
Congress' legislative work in 2017 established OAWP, creating a 
new paradigm for accountability and whistleblower protection.
    So, how can we promote accountability and improve 
performance? We must change VA's culture from within. That 
change must be encouraged and sustained by leaders who embrace 
accountability and focus on a productive workplace that 
empowers their employees. I own the responsibility of that 
change that is needed to move VA forward, but let me be clear: 
making enduring culture and process changes in an organization 
the size of VA takes time, persistence, and patience. Getting 
the processes, communication, and relationships right will not 
be easy, but my goal is to ensure that we have a better system 
in place, one that works for all employees.
    You have tasked the office with developing a system that 
better supports employees when they raise issues in the 
workplace. That task is really threefold; first, protect 
employees from retaliation, emphasize the need for greater 
transparency, and promptly investigate and resolve allegations 
of misconduct. Simply put, our policies must be aligned at 
every level to reflect the open and transparent way VA strives 
to operate.
    I have seen from the initial results, as evidenced in the 
report submitted to you last month, that this new office is 
making a difference, and will continue to build on this 
foundation in the coming years.
    Let me highlight a few of our accomplishments in the past 
year. The office averages 170 employee whistleblower 
disclosures to that office a month, and which OAWP staff 
quickly examine the concerns in an effort to develop the issue 
raised. From June 23rd, 2017 to June 1st, 2018, the triage 
staff assessed nearly 2,000 submissions of alleged wrongdoing. 
The Advisory and Analysis Division completed 182 cases, the 
same office recommended disciplinary or adverse actions in 54 
of those cases involving 58 unique persons of interest. And let 
me remind you, this is only in the first year.
    While our work is just beginning, I am confident those 
numbers will change as we continue to promote accountability, 
improve performance, and change the culture of VA.
    We are all after the same ultimate objective, to do what is 
right for our veterans by providing the high-quality care, 
services, and benefits they have earned, and they deserve. We 
can achieve that shared objective through cultural change and 
collective responsibility.
    Veterans and the American people expect us to work together 
on their behalf, we look forward to doing so, and I look 
forward to your questions.

    [The prepared statement of Peter O'Rourke appears in the 
Appendix]

    The Chairman. Thank you. I will start the questioning. And 
you mentioned, Mr. O'Rourke, that 58 people had had some 
disciplinary action, is that correct, out of 360,000-plus 
employees?
    Secretary O'Rourke. Yes, sir, that is at the senior leader 
level.
    The Chairman. At the senior level, okay. Do you believe 
that the implementation of this law has been successful? Do you 
think this--and when I say that, per your comment this weekend 
about the impact it has about managing this organization, and 
what are the three top metrics that you used to define success?
    Secretary O'Rourke. At the initial standup of the office, 
the first thing that you try to work through is just the 
recognition of what the new capability is, what we are trying 
to do in communicating that across. In the case of OAWP, the 
senior leadership workforce, senior executives, folks in a 
confidential or policymaking position.
    That is difficult in an organization the size and scope of 
VA. Getting out to visit with VISNs, getting out to visit with 
Medical Center directors and teaching them, helping them 
understand what the purpose of that office is in a context of 
we are here to possibly investigate your misconduct or your 
performance, is a tightrope to walk, but I believe we did that 
pretty successfully by going into nonthreatening environments 
with them, also with meeting with the unions and groups, 
training everyone that would take our call, to reach out to 
them to answer any questions they would have.
    The Chairman. Well, how do you answer, because I have read 
some of the whistleblowers in here who feel like they have been 
retaliated against. I am not saying that what they have said is 
true or not true, but I read this last night on several letters 
that are submitted for the record, how do you adjudicate them 
when they say they are locked in, you know, put in an office to 
do nothing for a year, 15 months, 16 months, whatever, how do 
you make them whole in that case?
    Secretary O'Rourke. First is listening to the 
whistleblower. What we found very quickly was that a lot of the 
folks that came to us initially that had things to say, whether 
they were a legitimate whistleblower complaint was really a 
matter of defining and making sure they understand what that 
definition was. But regardless of the definition, it was 
listening to them and making sure their voice was heard, and 
then doing the investigation or going on site to actually see 
what they were claiming, and having either a discussion with 
their supervisors or with the leadership of that organization 
to determine what was really going on.
    A lot of times what we found was really just two sides not 
talking to each other. At times we could facilitate that 
conversation, other times it had been too long, so we needed to 
take other action, whether that meant a full-blown 
investigation of the matter or referring that off to OSC or 
OIG.
    The Chairman. Because I think if you don't protect the 
whistleblowers, this will fail. I think they have to feel like 
that you can step forward and say something and not be 
retaliated against, because that is a huge deterrent to finding 
out what is going on in an organization as large as the VA.
    Secretary O'Rourke. Absolutely. And getting that word out 
and changing that cultural piece is going to take some time, 
because there are places that are more difficult than others. 
The one thing, though, that you provided in this bill was what 
is called, what we call anecdotally, the 714 hold. That wasn't 
something that had existed before. And what that meant is 
employees GS-15 and below that had an action that they might 
feel is retaliatory, we were able to step in as the office, as 
the director and stop that action, put a hold on that action, 
not allowing it to move forward until whether it was the Office 
of Accountability or the Office of Special Counsel could then 
investigate that disclosure for its substance, whether it was 
real or not, but during that period of time that employee could 
not be affected, whether it was retaliatory or not.
    The Chairman. How do you respond to the charges that the 
law unfairly is targeting lower-level employees, many of whom 
are veterans?
    Secretary O'Rourke. I have got specifics that I am going to 
let Mr. Maenle address specifically, but it is in the data. The 
218 report that was a requirement of the law, as we put through 
and as we looked at this, when we look back to 2014 and 
forward, you don't see a significant difference from year to 
year frankly in any category of unrealistic firings or removals 
of any category of employee, let alone focusing on lower-level 
employees. And Mr. Maenle has got a few more details on that 
too.
    Mr. Maenle. Certainly. So we took a look specifically at 
custodial workers, laundry workers, and food service workers, 
and looked across the past three fiscal years, and what we are 
seeing is not a significant change in the number of actions 
that were taken. From a percentage perspective, less than a 1 
percent increase in the number of terminations of that level of 
employee.
    Now, granted, those three occupations are the highest 
occupation within the Veterans Health Organization for 
terminations. And that is the nature of the work, that compares 
similarly to the private sector.
    The Chairman. My time is expired.
    Mr. Takano, you are recognized.
    Mr. Takano. Thank you, Mr. Chairman.
    Mr. O'Rourke, I understand that the VA has provided the 
Office of the Inspector General access to OAWP information this 
morning and that they are entitled--information that they are 
entitled to under the Inspector General Act. Can I get your 
commitment today that you will provide and continue to provide 
to the OIG full, complete, and prompt access to OAWP records 
and all other requests made by the OIG?
    Secretary O'Rourke. Your request, as may, has been complied 
with even before this morning's recent access to a SharePoint 
site.
    Mr. Takano. Yes. And I wanted to know if you were committed 
to that you will continue to provide the OIG full, complete, 
and prompt access to OAWP records and all of their requests? I 
realize that you complied with its previous request and I know 
that there was a very public spat over that. I want to just get 
your commitment today that you will comply with future OIG 
requests.
    Secretary O'Rourke. It is unfortunate that that has been 
such a public about one issue, because this has been--his 
access to OAWP has been unfettered since day one.
    Mr. Takano. That is not what played out. I just want to get 
your commitment that you will comply with future OIG requests.
    Secretary O'Rourke. My commitment remains the same as it 
has been since day one, to provide the IG access to what--
    Mr. Takano. I am not interested in day one what you claim 
to have said, I want to know from this day forward will you 
comply with the OIG?
    Secretary O'Rourke. Yes.
    Mr. Takano. Thank you. I am concerned that of the 1,096 
removals during the first 5 months of this year, less than 1.4 
percent were supervisors and that the majority of them were 
housekeeping aides. And let me just put this in perspective. 
There has always been a preference requirement for this job 
category, a veterans- preference requirement, and also hiring 
under noncompetitive set-asides for veterans in this job 
category.
    So in the past the vast majority, close to 100 percent of 
employees at the VA in this category have been disabled 
veterans. And that can vary somewhat by facility, but my 
impression is that in this category, because of these set-
asides, the vast majority of these workers tend to be veterans, 
disabled veterans. Would you agree with that assessment?
    Secretary O'Rourke. No, sir, I wouldn't.
    Mr. Takano. You wouldn't?
    Secretary O'Rourke. Not disabled veterans. That is a 
veteran's preference that they have, that is all veterans.
    Mr. Takano. Okay. So it is all veterans, but whether it is 
disabled and veterans, this tends to be a very veteran-
dominated job category. Okay. And let's be clear that this is 
who we have--the majority of the 1,096 employees who have been 
removed, the majority of them have come from the housekeeping 
category and we are talking veterans here. Not one third, but 
in this category one third of all veterans--one third of all 
employees at the VA tend to be veterans, but in this job 
category nearly 100 percent.
    As I mentioned in my opening statement, if there are so 
many housekeeping aides with incurable poor performance, it is 
likely that there are some management issues there as well. 
What are you doing to ensure that personnel decisions such as 
adverse actions are truly addressing care issues and not just 
unnecessarily creating vacancies at lower levels, while the 
real culprits of institutional problems remain on the job?
    Secretary O'Rourke. I think it is helpful to be clear about 
the turnover rate at that housekeeper level, regardless of 
whether they are veterans or not, that is--like Mr. Maenle 
already mentioned, that is our highest turnover area regardless 
of whether this is in the VA or outside the VA. In fact, our 
turnover rates in that area are much lower than the private 
sector, which is closer to 200 percent.
    Mr. Takano. Yeah, but you are shifting the focus of our 
conversation here. We are talking about people who have been 
removed, we are not talking about turnovers. How is that 
relevant to what my questions are talking about?
    Secretary O'Rourke. The turnover rate includes removals 
and--
    Mr. Takano. There again, you are going on to a different 
talking point about turnovers. We are talking about removals 
here and that implies to me some management issues.
    Secretary O'Rourke. Even removals, sir, if you go back to 
2014, there is not a dramatic difference--
    Mr. Takano. You are--
    Secretary O'Rourke [continued]. --from the new 
accountability law than there was beforehand, which indicates 
year over year the same--
    Mr. Takano. We are talking about the first five months 
about all these removals.
    Secretary O'Rourke. Sir, if you go back to 2014, you are 
going to see the same amount of removals even before the 
accountability law.
    Mr. Takano. Well, this still gets to this issue of who we 
are removing and whether or not we are addressing bad 
management, unskilled management, what we are doing to improve 
the personnel function and the fact that the personnel function 
of the VA is also in turmoil.
    Secretary O'Rourke. I don't connect those two, sir. I am 
going to stay focused on the removals or the turnover rate both 
of the lower--
    Mr. Takano. Well, anyway, let me move on.
    Secretary O'Rourke [continued].--lower-skilled employees--
    Mr. Takano. What are you doing to ensure that these crucial 
positions such as those--I guess my time has run out, so I 
yield back.
    The Chairman. I thank the gentleman for yielding.
    Mr. Coffman, you are recognized.
    Mr. Coffman. Thank you, Mr. Chairman.
    To the acting Secretary, I first want to thank you so much 
for your responding to a concern that was raised by a 
whistleblower in Denver, Colorado that led to--within the VA 
OIG and that pulling it to a higher level to make sure that 
there is no conflict of interest, I want to thank you for being 
responsive to that.
    Let me also, let me raise an issue of accountability, and I 
guess this is different than what Mr. Takano has raised, in 
that I am concerned that--and if you could relay this as well 
to the incoming Secretary--that at this SES, Senior Executive 
Service management level that we have had individuals in these 
positions who have had multiple negative reports either by GAO 
or VA OIG that have never been cleaned up, and yet these people 
are allowed to remain there.
    And so specifically we are going to be opening a VA 
hospital in Aurora, Colorado this Saturday and the individual 
that was responsible for the last person there in charge of the 
project from the VA's standpoint in terms of construction 
management, that ultimately led to $1 billion in cost overruns, 
a project that was 5 years behind schedule, that I led the 
fight in the Congress to replace the VA construction management 
team with the Army Corps of Engineers. Without that, I don't 
think this project ever would have been built. Congress never 
would have had the confidence to fund those cost overruns to 
complete this hospital.
    And in fact under her leadership, Congress, I mean, 
stripped the VA of its construction management authority ever 
to build a hospital again, and yet this person is still there 
in charge of VA construction facilities management. Not only 
was she still there, your predecessor, Secretary Shulkin, 
actually tried to promote her to being in charge of facilities 
management and contracting, that she at my behest or certainly 
I raised the issue about her competence, and she was put back 
down in charge of construction management.
    I mean, if we don't clean house, no matter what the new VA 
Secretary says or does, I mean at this level, at this SES 
level, nothing will change, and so that is my concern. Do you 
have a response to that?
    Secretary O'Rourke. Well, sir, I think the response would 
be to point out the one as you described to me, it is a very 
difficult challenge when you are looking at changing the 
culture of an organization the size and as intricately 
designed, I guess, at this point. As we look at how to 
restructure and bring things like construction management, 
other things into better alignment with our priorities, with 
our goals with serving veterans, that will hopefully lead to 
some better management structure.
    But really what the accountability law does for us in that 
regard by adding accountability and putting performance as part 
of that, that that was new, that was innovative at a degree 
that I don't think we all give ourselves credit enough for. 
That is going to allow us in the future, once we get over 
this--you know, get the accountability side correct and start 
adding carefully the performance side, because that is 
something, we have to be very cognizant of. Just as the ranking 
Member mentioned, when we talk about managers and how they 
manage and what their performance is, we have to do that very 
carefully so that we are not unfair, but that is something we 
have to address, and I think that is going to start to address 
some of those systemic issues you see.
    Mr. Coffman. I think you have about around 400, I think, in 
the Department of Veterans Affairs at this SES level who are 
just below the political appointees, who run the day-to-day 
operations within the--and programs within the Department of 
Veterans Affairs, and I think you have got--that I would hope 
that the new Secretary would take a look across the board and 
in where we have had consistent failure, those people simply 
have to be removed. And the Congress of the United States, you 
know, on a bipartisan basis has given the Department of 
Veterans Affairs the authority to more expeditiously remove 
these managers who are the top of this bureaucracy.
    And so I just want to commend you to talk to the new 
Secretary, to move forward with cleaning house.
    Secretary O'Rourke. Yes, sir.
    The Chairman. I thank the gentleman for yielding.
    Ms. Esty, you are recognized for 5 minutes.
    Ms. Esty. Thank you, Mr. Chairman. I want to thank the 
Chairman and ranking Member for holding today's important 
meeting.
    When VA passed the VA Accountability and Whistleblower 
Protection Act, it was a recognition that more accountability 
was needed at the VA, and you are hearing that from everyone 
here today. However, accountability doesn't just mean 
increasing the number of VA employees who are pushed out the 
door, accountability means, as Mr. O'Rourke, as you had noted, 
creating real change in culture and ensuring that bad behavior 
is not repeated. Management that has enabled bad behavior needs 
to be held accountable, just as much as low-level employees who 
in some cases may not have been properly trained.
    For acting Secretary O'Rourke, during your tenure our 
Committee has been made aware of a significant number of career 
employees who have served under multiple Secretaries. These 
employees have been removed, demoted, or reassigned, or they 
have resigned or retired after being made aware of adverse 
actions coming their way. It is concerning, because there are a 
large number of personnel changes and that brings about 
instability in managing such a large agency.
    Can you tell us now how many such personnel changes you are 
aware of for the Office of the Secretary personnel, including 
Executive Secretary, Protocol Office, the Centers for Women and 
Minority Veterans, and other included staff in the time between 
May 30th and July 16th?
    And if not, if someone cannot answer that today--
    Secretary O'Rourke. I just wanted to make sure I can 
address--I know I can address two of those. The Center for 
Women's Veterans, I believe the director there resigned last 
week and is now working at CONTRACTS, Center for National 
Security, I believe she started on Monday. So it appeared she 
had moved on to better things.
    The Executive Secretary, we recognized that we needed to 
make some changes at the Office of the Secretary level that 
required us to move some people. They weren't demoted or 
resigned, they just moved to other--one in particular moved to 
another SES job, the other moved to another GS-15 job.
    So we are not on a path to just, you know, move things 
randomly. These are all very well planned and designed moves to 
better make efficiency and effectiveness at our level, but this 
is something we are encouraging leadership to do across the 
board. Just as Mr. Coffman pointed out, if you had issues with 
your performance or your organization's performance, do not 
hesitate to take action, whether that is from misconduct or 
that is from just restructuring to get better performance to 
serve veterans.
    Ms. Esty. Can you clarify then, were these for cause, for 
performance issues, or you are saying efficiency? I mean, now--
    Secretary O'Rourke. So this is organization--
    Ms. Esty [continued].--that can cover a multitude of 
things.
    Secretary O'Rourke. I'm sorry. It is for organizational 
efficiency. I mean, we are talking about when you have an 
office that is not performing the way it needs to. That doesn't 
always mean that a person was committing misconduct of some 
sort, this means that we are not getting the performance or the 
efficiency out of that organization that we need and then 
sometimes it requires a change in leadership.
    Ms. Esty. All right. Well, I am sure we are going to be 
revisiting this issue to see in 6 months, you know, what are we 
seeing and to be clear about what is it that is not 
performance? How are you measuring that performance and what 
are you doing to ensure that there is better performance, 
setting out clear metrics, setting out training, being very 
transparent about what that is, because there is a lot of 
concern and we are hearing a lot of back-channel about morale 
impacts of this. And when you lose a lot of senior people, that 
is a lot of institutional knowledge, that happening all at once 
during the time of an acting secretary ship is very 
destabilizing. We have major pieces of legislation, major 
changes, and to be clear now, that many people is of concern 
about an ability to actually effectuate change when you have 
people who no longer can be there who have the institutional 
knowledge.
    You have addressed--so you are saying none were for cause?
    Secretary O'Rourke. Of those two that I just mentioned, 
neither one of--well, neither of them were any action taken, so 
we are not talking about something that would be for cause or 
not.
    Ms. Esty. Are you communicating with nominee Wilkie about 
any of these changes?
    Secretary O'Rourke. No.
    Ms. Esty. Do you intend to do that? Because it is going to 
be important for him coming in to understand, if confirmed, 
about what the reasons are for these changes and what you are 
attempting to achieve. Our oversight role is to do that--
    Secretary O'Rourke. Sure.
    Ms. Esty [continued].--and we are not being made aware. So 
I would like you to follow up with us what were the reasons for 
these changes, why have they been moved where they have moved 
on these major positions. And, frankly, we are going to have to 
look with the back channel of what we ar hearing with perhaps 
different reasons than you are suggesting here today about the 
rationale for these changes. It is of concern--
    Secretary O'Rourke. I understand your concern.
    Ms. Esty [continued].--it is concern about politicizing 
these high-level positions and that is of deep concern to 
this--
    Secretary O'Rourke. I'm sorry, I didn't catch, to 
politicize?
    Ms. Esty. If there is any question about whether these are 
loyalty concerns or other--
    Secretary O'Rourke. Oh.
    Ms. Esty [continued].--implications about why these people 
are being replaced, that is of deep concern. There is no place 
for politics in this agency and people need to be held to 
performance standards. And, again, when people have served 
under multiple Secretaries, if it is a performance issue, we 
should be made aware and so should the incoming nominee be made 
aware what those issues are--
    Secretary O'Rourke. Absolutely.
    Ms. Esty [continued].--and we should to do our oversight 
role.
    Thank you and I yield back.
    The Chairman. I thank the gentlelady for yielding.
    Mr. Bost, you are recognized.
    Mr. Bost. Thank you, Mr. Chairman.
    Mr. O'Rourke, a number of VA employees in my district have 
reached out to me and they believe issues within the VA would 
qualify them as whistleblowers. How is the Office of 
Accountability and Whistleblower Protection training employees 
about the correct way to handle the whistleblower disclosure in 
compliance with the law? So what do you actually-how do you 
train them?
    Secretary O'Rourke. How do we train them? So there has been 
ongoing training or awareness, provided posting of signs, those 
things from OIG, the Office of Special Counsel. So there are 
requirements by statute to post how you--what is a disclosure 
and what do you do to submit a disclosure to those two 
agencies. The Office of Accountability and Whistleblower 
Protection being new, we had to go educate folks of what we 
needed.
    By statute, we were required to produce an identifying and 
non-identifying form, and a toll-free number that is completely 
anonymous, those were both done within the first few weeks of 
the office being developed, and we continue to refine those, 
but those are available to all employees in multiple different 
ways. We also have the website that we keep updated that 
describes very clear what it is a disclosure to help them, but 
we really understood that what we had to do, as I mentioned 
earlier, is listen to employees and let them talk about what 
their issues are. A lot of times when they feel that they can't 
talk to their management or supervisors, they do need somebody 
to talk to, and in a lot of the cases we found, from deep 
diving into some older cases, that was what caused a lot of 
this to fester and grow and then become much bigger of an issue 
unless we addressed it at the site.
    So we have done a lot in that area, we have more to do. We 
have trained, I believe, 40,000--I'm sorry, you have those 
specific numbers.
    Mr. Maenle. So we have trained 2,000 HR professionals and 
attorneys on the Accountability Act. We have also trained 
40,000 supervisors and we have specifically from the Senior 
Executive Service, 690 members were trained there as well.
    Mr. Bost. So then I will ask this. So when somebody does 
come forward, who is it that actually goes to them? Is it 
someone that has been trained from your office, is it someone 
that is at the site where they are at, or how is that handled?
    Secretary O'Rourke. If they reach out to us--so you have to 
remember, they have multiple channels; they have the Congress, 
they have the Office of Inspector General, they have the Office 
of Special Counsel, they can go down any one of those paths to 
make their disclosure and they are all equally legitimate. If 
they come to us either through the form or through the 
hotline--or toll-free number, I don't want to call it a hotline 
and confuse it with OIG--then we as part of our triage folks 
will talk to them. If they just read out to us, and if they 
just submit the form, then we reach out to them to fully 
develop what their disclosure is and give them some sort of 
sense of what it is--you know, is what they are claiming a 
disclosure, is it retaliation. We hand-hold them through that 
process, because we found that that is the most effective to 
addressing that at the lowest level.
    Mr. Bost. Okay. I am going to just shift on my other 
question here a little bit. Prior to the hearing, the Committee 
requested copies of written policies and handbooks and 
directives and regulations that have been sent out and putting 
things in place, and what they received they thought were 
lacking, to say the least. Is there intent for a larger, more 
in-depth written policy to be put together, so that when 
someone from our offices request, okay, what is your checklist, 
how are you doing it, and how do we know what you are doing is 
going to be right not only for the whistleblower, but right for 
the agency?
    Secretary O'Rourke. Sure. I will take the criticism of 
that. Early on, we had a bias toward action, to actually start 
reaching out to folks and working with whistleblowers. We had 
quite a bit of legacy, whether it was senior leader misconduct 
cases or just a backlog of whistleblowers that wanted to reach 
out to us. So we did focus a lot more on the operational side. 
And so we are now trying to see what we have learned from a 
process standpoint and start to codify that.
    So we do have work to do on creating actual regulations 
around what we do. We do have pretty in-depth process maps, 
which we are sitting down with the OIG at this time to go over, 
so that they can see how we handle disclosures, which is 
interesting because we both have a similar mission. But that is 
more work that we have to do.
    Mr. Bost. You mentioned earlier in your testimony, you were 
talking about, I think you said it was the 714-hold, is that 
correct?
    Secretary O'Rourke. Yes, sir.
    Mr. Bost. Exactly how does that work and how does that get 
implemented?
    Secretary O'Rourke. When a whistleblower is served an 
action, basically they are given a proposed adverse action of 
some sort, if they have previously disclosed to the Office of 
Special Counsel, the Office of Inspector General, although that 
one is a little more complicated based on the transparency 
there, or to the Office of Accountability and Whistleblower 
Protection, we then will reach out to that supervisor or that 
proposing official and say you will hold this action until you 
hear from us.
    Mr. Bost. Okay.
    Secretary O'Rourke. And so they cannot move forward with 
that action. And we work with human resources, so--
    Mr. Bost. And that action could be--my time has expired, 
but just--
    Secretary O'Rourke. Adverse actions, removals--
    Mr. Bost. Any?
    Secretary O'Rourke [continued].--demotion--
    Mr. Bost. Demotions?
    Secretary O'Rourke [continued].--suspension, yes.
    Mr. Bost. Okay. Thank you so much.
    I yield back.
    The Chairman. I thank the gentleman.
    Ms. Brownley, you are recognized.
    Ms. Brownley. Thank you, Mr. Chairman.
    I think I certainly agree with some of your opening 
comments in terms of a change in culture within the VA and many 
have already spoken to that, and I certainly concur with your 
perspective that changing culture takes time and persistence 
and patience. It is not easy to change a culture in a very 
large organization. But we also know that the VA is only as 
good as the employees who work within it.
    And I would say too that the preceding Secretaries, you 
know, changing culture has been one of their top priorities 
without question, but we continue, and I am concerned that we 
still get negative reporting around the morale within the 
agency and that the morale is not very good.
    And so my first question would be, since the Accountability 
Act was instituted within the VA, do you think employee morale 
has increased or decreased since the Accountability Act has 
been applied?
    Secretary O'Rourke. Anecdotally, where I visit on trips, I 
see high morale, but I'm not saying that to counter yours, but 
I think best what we will know is from our all-employee survey, 
which I am going to let Mr. Maenle speak to, of when we are 
going to have those results and how that process of getting 
those results back, and we will definitely, you know, share 
them with you all.
    Mr. Maenle. Certainly. So, as you know, we conduct an all-
employee survey every year. That survey goes out to every 
employee across the VA and gives them an opportunity to tell us 
how the morale is, how things are going in the organization. So 
this year's all-employee survey closed on June 25th and our 
commitment is to have those results ready to go 45 days after 
it is closed, so mid-August we will have those results ready to 
go. And I am already on the hook to come back and brief this 
Committee, I believe on those results and what we found as a 
result of the survey.
    Ms. Brownley. And the previous morale survey, what were the 
results of that?
    Mr. Maenle. So if you use the Federal Employee Viewpoint 
Survey and the Partnership for Public Service, VA was down the 
list of places the work. And so we will be comparing this 
year's results to those previous results to see how we have 
done.
    Ms. Brownley. Thank you.
    Mr. O'Rourke, who will be leading the VA's personnel 
department now that we have the vacancy?
    Secretary O'Rourke. Sure. Right now the--not officially, 
but the Principal Deputy Assistance Secretary, Nathan Maenle, 
is leading that office.
    Ms. Brownley. And what is your assessment of the current 
leadership there and what is your plan to ensure that the 
office remains fully functional and able to meet the needs of 
the agency despite these recent departures?
    Secretary O'Rourke. Absolutely. I mean, I think a point to 
that is I don't think any office across the Federal Government 
is dependent on one person; they are very important, the 
leadership, but I have full confidence in the leadership team 
that is at HR&A today. I will be working with them on what our 
expectations are going forward. But their role is very complex, 
I mean, as you know. I mean, we have the HR function throughout 
the Veterans Health Administration and the Veterans Benefit 
Administration, these are massive organizations across the 
entire 50 United States, territories, foreign countries, they 
have a huge challenge, and we will be working with them to make 
sure that they have everything that they need to continue the 
progress that they have already made. So we look forward to 
that.
    Ms. Brownley. Well, from my perspective, I think the HR 
department has been a very weak spot across the VA and if they 
are not working efficiently and filling vacancies, then other 
departments are not operating at full capacity and performance. 
And so it is a constant issue that we have debated and 
discussed many, many times here in the Committee, and so being 
able to actually fill these vacancies in a timely manner with 
high-quality people is really important.
    So, I do see it as a very--it is the weakest link in the 
system and really, we need to be focused on it very much so.
    And so that just goes to again my question around, you 
know, your plan and what your personal involvement will be to 
make sure that this department is operating as effectively as 
possible.
    Secretary O'Rourke. Along with my own personal involvement, 
I have tasked the chief of staff to be personally involved in 
this as well. So we are taking this leadership involvement at a 
very serious level.
    Ms. Brownley. Well, my time is up, and I yield back.
    The Chairman. I thank the gentlelady for yielding.
    Dr. Dunn, you are recognized for 5 minutes.
    Mr. Dunn. Thank you very much, Mr. Chairman.
    Thank you, Secretary O'Rourke, for coming here to review 
the VA Accountability and Whistleblower Protection Act one-year 
in.
    So, in recent months there have been some articles around 
the country regarding a number of VA physicians who were 
whistleblowers that made legitimate complaints and they 
experienced, they reported this, allegations of isolation, 
limiting access to their computers, bullying, intimidation, and 
actual threats against their medical licenses, so false claims 
to the medical boards that would impair their license. In fact, 
there was a case of a VA physician who reported over-
prescribing, inappropriate use of opioids, and after reporting 
those problems, she had her practice privileges suspended and 
had false allegations made to her medical board. These are 
chilling things for your physicians to hear, both the ones you 
employ and the prospective ones you might employ.
    How does the VA protect these physician whistleblowers?
    Secretary O'Rourke. First, we take every one of those 
claims very seriously. When those claims of retaliation of that 
nature are made to the office, they are immediately addressed 
through the triage process to develop those further.
    I can tell you, in most of my experience with those cases 
there is a lot more to the story. So we try to find all the 
story elements that we can and then make a determination very 
quickly of whether to refer that to the Office of Medical 
Inspector or, if there is something more serious, other 
appropriate investigative agencies.
    Mr. Dunn. So I see a number in the data that I was reading 
of 319 complaints in the last year of retaliation against 
whistleblowers. Do you think that is a correct number, do you 
think that is fair?
    Secretary O'Rourke. I think in an organization like the VA 
that hasn't done what it should about defining what retaliation 
is, both from an educational standpoint, just, you know, the 
simple education standpoint, but really digging into that, 
using examples, and having every level of management hold each 
other accountable for that type of behavior. I have seen 
incredibly egregious examples of whistleblower retaliation and 
I have seen claims of whistleblower retaliation that were 
absolutely not--
    Mr. Dunn. Not true?
    Secretary O'Rourke [continued]. --and it was holding people 
accountable.
    Mr. Dunn. So, if someone does experience legitimate 
retaliation, what action can the VA take against that employee 
who was retaliating against the whistleblower?
    Secretary O'Rourke. There are two forms it will take. If we 
in the Department find that, then we will take adverse action 
against that supervisor, manager. It has to be in those 
categories, because employee-to-employee--
    Mr. Dunn. Can you give me a for instance? I mean, that 
sounds like a pretty bad thing to do.
    Secretary O'Rourke. Yeah, we have removed--
    Mr. Dunn. Fired?
    Secretary O'Rourke. Yeah, we have removed individuals for 
that usually after the second type of requirement. The Office 
of Special Counsel, their mandatory sentence, if you want to 
call it, is--I believe it is 14 days or more suspension in the 
first instance of whistleblower retaliation.
    Mr. Dunn. Is it important to protect the anonymity of these 
whistleblowers, so that their identity is not--
    Secretary O'Rourke. Absolutely.
    Mr. Dunn. So that is a key concern on the front end. If 
somebody does come to your office with a legitimate complaint 
about opioid over-prescription or something, that they don't--
you know, this is not then public knowledge that they made that 
complaint, lest they experience these kind of retaliations.
    Secretary O'Rourke. It is the single highest reason given 
for retaliation is that they were a whistleblower. There are 
other claims of retaliation that have to do with other types of 
activity, but that has been the single highest reason.
    Mr. Dunn. So that is protecting the witness, if you will?
    Secretary O'Rourke. Yes.
    Mr. Dunn. The witness protection program. Gosh, what are we 
doing now?
    So, let me change with a minute left to me here. The GAO 
report last year found when it came to official time, this time 
when employees are working, they are doing actually union 
duties, but they are on the VA payroll, that is supposed to be 
reported. You are supposed to know how much that time is, they 
go through a process, but that data we think is inconsistent 
and unreliable. So you have a new system, the VATAS, VA Time 
and Attendance System.
    Do you have faith in that? Is that system going to give us 
some real data, honest data?
    Secretary O'Rourke. Yes, sir. We are going to start fully 
recording everyone's time, especially when it comes to official 
time, and that will put about 472 employees back to work, 11 of 
those being psychologists and 62 being RNs.
    Mr. Dunn. Some physicians, I guess, huh?
    Secretary O'Rourke. Yeah. So this will actually be able to 
help us manage not just that we talked about, you know, giving 
folks credit for the official time that they need to use, but 
also putting folks back--
    Mr. Dunn. When will that system be rolled out across the 
VA?
    Secretary O'Rourke. I'm sorry?
    Mr. Dunn. When will it be, that system, the VATAS system?
    Mr. Maenle. So we are on the hook this month for 
deployment.
    Mr. Dunn. Excellent, excellent. Let me offer you my apology 
for the physicians who are goofing off.
    Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for yielding.
    Ms. Kuster, you are recognized.
    Ms. Kuster. Thank you, Mr. Chairman.
    And thank you, Mr. O'Rourke, for coming to New Hampshire, 
to Manchester, and I appreciated our meeting and our 
conversation. I was left hopeful at the time, but unfortunately 
my staff has yet to receive the final reports from either the 
Office of Medical Inspector or the Office of Accountability and 
Whistleblower Protection.
    Just this past spring, the VA had informed us that these 
reports were in their final stages. So can you give me an 
update on the status of those reports about the Manchester VA 
and a timeline for their release?
    Secretary O'Rourke. I can't right now, but I will get that 
to you immediately after this meeting.
    Ms. Kuster. If you could. I know people in New Hampshire 
are anxious to hear about the investigations of the various 
personnel and the protections that--the reason I supported this 
legislation was to give protections to our whistleblowers, but 
apparently something is holding up the final reports, and it is 
important for us to get to the bottom of this.
    Secretary O'Rourke. Yes.
    Ms. Kuster. I also want to take into account the situation 
in Bedford, Massachusetts VA Medical Center next to my home 
district, which has been the center of at least three high-
profile issues involving patient safety, employee safety, and 
gross fraud by employees.
    My colleagues in the Mass. delegation and myself from New 
Hampshire felt that the Accountability Act that we are 
discussing today would have expedited effective and appropriate 
action, but it is my understanding that at least one of these 
employees central to the case is still on the job. She was 
accused of fraud and waste. Why was she not fired for shifting 
nearly $200,000 to her brother, and do you know the status of 
that case and what her current employment situation is?
    Secretary O'Rourke. So, I want to be careful, because I 
believe that still is an active investigation, but I am 
familiar with that.
    Do you have an update on where we are at?
    We have taken multiple disclosures from Bedford and we 
actually spent two visits to be on the ground, taking 
interviews, interviewing potential whistleblowers, or just 
variously other employees. But I know that that was also an OIG 
investigation as well, so we tried to make sure that we didn't 
cross into the criminal side, and I believe the facts that you 
are mentioning are on that criminal side of that. I think there 
was some resolution, though, with the individual's relative 
that was involved here.
    Ms. Kuster. If you could get back to my office--
    Secretary O'Rourke. Will do.
    Ms. Kuster [continued].--on that as well.
    And the other is that, again in Bedford, a whistleblower 
recently had their allegations substantiated by the Special 
Counsel regarding asbestos contamination and subsequent patient 
and employee concerns about exposure. Can you tell us the 
status of that investigation?
    Secretary O'Rourke. I will follow up with you, but that 
sounds like something that would go to the Office of Medical 
Inspector.
    Ms. Kuster. Okay. So essentially, let me just switch gears 
here, my time is limited. I have been disappointed by Assistant 
Secretary Shelby's response. We had a Health Subcommittee 
hearing in late June, and this is in regard to March 2018 Merit 
Systems Protection Board study showing that the VA has the 
highest rate of sexual harassment across all Federal agencies. 
His response was dismissive of that and I would like to hear 
directly from you.
    Do you accept the findings of this study? What are you 
doing about this issue? What role is the Office of the--excuse 
me, the whistleblower protection involved in that, and what is 
the timeline for actions at the VA to address these 
allegations.
    Secretary O'Rourke. So you want me to get this all in one 
minute. So, first, don't accept that kind of response. It is a 
serious issue and to reiterate that, at the Office of 
Accountability and Whistleblower Protection, our standing 
policy was any claims--I don't care where they came from, any 
claims of any kind of sexual harassment, retaliation regarding 
that or anything, required a 48-hour response from our office 
to have investigators on the ground, on site to start those 
investigations. So we have no tolerance for any kind of delay 
in any of that.
    But I am going to turn it over to Mr. Maenle to provide the 
statistics on the training and some of the other parts of that 
program.
    Mr. Maenle. So, we stepped up our harassment prevention 
program in 2016. Over the past couple months, we have been 
looking at what do we need to do to make that a more robust 
program. So is there additional training that we need to do, so 
that employees are aware of what their avenues are for 
reporting.
    We have a strong policy. We have done recent updates to our 
handbook, at the prompting of EEOC when they came in to look at 
our program. Although they liked what they saw, they did give 
us some suggestions, and so we are implementing those in our 
handbook.
    From a training perspective, we have 95-percent training 
rate completion.
    Ms. Kuster. Is your training, I'm sorry to interrupt, but 
is it strictly online or is there an active component by the 
employees, are they engaged with a trainer in a live 
interaction?
    Mr. Maenle. So the 95-percent training completion rate is 
for online training and we have now begun a train-the-trainer 
program, so we can start doing online--or in-person training 
completion.
    Ms. Kuster. In person. I think it is much more effective, 
that is certainly what we have learned here on Capitol Hill and 
we have also tried to make changes.
    And I think the other thing is that knowing--I'm sorry, my 
time is up, but knowing that this is from the top down and that 
there is a policy of no tolerance.
    So, I apologize to the chair and I yield back.
    The Chairman. I thank the gentlelady for yielding.
    General Bergman, you are recognized for 5 minutes.
    Mr. Bergman. Thank you, Mr. Chairman, and thanks to the 
panel here for being here today, because, you know, there is 
always more than one way to skin a cat, but in this case the 
cat is still the cat, and in this case bad behavior is bad 
behavior. It can vary from embezzling money to poor patient 
care, to you name it, the amount of different categories.
    But the reporting system in this case needs to be 
standardized, because if we don't have a standardized way of 
reporting all the way up the chain, you are going to have 
variances then and potential for outcomes, because we want to 
standardize outcomes. If you have done something heinous, it 
should be a pretty severe outcome. If you have something that 
could be considered unintentional, but nonetheless was bad 
behavior, that is met in a different way. It is kind of like in 
the military with the Uniform Code of Military Justice. We do 
have that flexibility, but in this case let's talk about 
standardization.
    If we had all the VISN directors here, do you think based 
upon now, you know, you are into it, that we would hear a 
standardized answer from them as to how they are implementing 
the act as we envisioned it?
    Secretary O'Rourke. No.
    Mr. Bergman. Okay. Is there an effort or a hope that we 
could get it to an 80-percent commonality?
    Secretary O'Rourke. Yes, sir, and that is why I am short 
with that first answer. I mean, this organization has part of 
its culture a lot of independence from VISN to VISN, medical to 
medical center. Those things we have pointed out at different 
time. If you have visited one medical center, you have visited 
one medical center. That is not a great thing to say in all 
categories, especially not in this.
    So it is going to require more engagement. It has required, 
at times, even working with the senior leadership teams to 
address that lack of seeing things the same way and kind of 
getting on the same page.
    Mr. Bergman. Do we have enough data now or are we getting 
close to having enough data that has come out of different 
VISNs to say, wow, here is really a--they have got their act 
together here. This is an example that for those other VISNs, 
maybe who are more challenged in this arena to say, okay, if 
you can't figure it out yourself, try what, you know, VISN X is 
doing?
    Secretary O'Rourke. It has really been a lead by example. 
We have several VISNs that have--and we see this mostly on the 
whistleblower protection side with VISN directors taking the 
lead with reintegrating their whistleblowers that have been, 
probably in their words, thorns in their side for a long time 
for a lot of the right reasons. But they have just kind of held 
that back or they have opened up and allowed those few people 
to come in and reintegrate into the organization and provide 
the value that they can.
    So we have had a few that have shown what can be done. It 
is getting the word out to the others and then showing them, or 
sometimes strongly encouraging them, that this is the same 
behaviors, the same attitude, the same way that they should be 
treating those same type of issues.
    Mr. Bergman. Do you think that--I mean, the three of you 
are sitting here at the table being held accountable by us. If 
we had all of the VISN directors sitting at the table instead 
of you all, do you think they would feel the temperature in the 
seat like you potentially do?
    Secretary O'Rourke. I know they will this afternoon. I 
speak to the National Leadership Council of VHA and I will pass 
that along.
    Mr. Bergman. Well, and somehow the--and in several of the 
oversight hearings that our Subcommittee has had, the lack of 
the sense of urgency that we have sensed, it is--and now it 
does fall back onto leadership, whether it is ours as a 
Committee here of the whole, communicating that with you, or 
then you, as the leadership communicating it down that--your 
chain of command because, you know, unfortunately in the end it 
all boils down to the same outcome and that is a veteran or a 
group of veterans doesn't get the services that they need, they 
require for a healthy life, for whatever it happens to be to 
benefit them. And the reason this was put into place was to 
hold people accountable, but most importantly, to protect those 
who saw bad behavior and felt compelled on behalf of the 
veterans to raise their hand and say, ``Hey, this was wrong.''
    So I see my time is about to expire here, but we are here 
with you. We just need to--you know, we will give you all the 
hammers you need, but you need to swing them. Thank you and I 
yield back.
    The Chairman. I thank the gentleman for yielding. Ms. Rice, 
you are recognized for five minutes.
    Ms. Rice. Thank you, Mr. Chairman. Mr. O'Rourke, the 
Committee received many statements for the record from former 
VA employees about their experience after becoming 
whistleblowers. These experiences included problems with OAWP 
not keeping their disclosures confidential, which resulted in 
severe retaliation.
    Obviously, this is very concerning since the very purpose 
of the creation of OAWP was intended to actually centralize the 
whistleblower protection in one place to prevent such things 
from happening anymore. I am just going to--I just want to 
point out two of the statements that happened while you were 
the head of OAWP.
    The first was from a physician by the name of Dale Klein 
(phonetic) who stated that it was difficult to get the 
opportunity to talk to his OAWP case manager and that the case 
manager had not even planned to interview him in reviewing his 
case. He said his case manager was not even aware of an OIG 
finding on his whistleblower case and that ultimately OAWP did 
nothing to protect him from being fired. So that is number one.
    Number two, you had an engineer by the name of Daniel 
Martin who stated that OAWP notified the senior officials, 
against whom he was doing the whistle blowing, about his 
disclosure. And as a result of that, he experienced retaliation 
that has essentially stripped him of his job, except in name 
only.
    So these seem to me to be two examples of whistleblower 
protection actually doing the exact opposite. So what say you 
about this since you were in charge of that--
    Secretary O'Rourke. Sure.
    Ms. Rice [continued].--department?
    Secretary O'Rourke. We will address Dr. Klein first. That 
case predated the establishment of OAWP, and his case was much 
down the road before any of us got involved in that. So his 
identity, of his own accord, was already proliferated 
everywhere. His case, in particular, has been reviewed by OSC. 
We didn't even--we didn't have the chance to investigate it 
because it wasn't even in our hands. But I believe that case 
resolved with him being removed and the Office of Special 
Counsel supporting that decision.
    Now, the people that had initially been found with doing 
some retaliation to him, initially. There is a lot more details 
in this case that we need to go into, they were disciplined for 
retaliation because they did, frankly, screw up. They did not 
handle that the way they should have.
    Ms. Rice. So disciplined? Were they removed?
    Secretary O'Rourke. They were--they got the mandatory OSC 
retaliation penalty of 14-day suspension.
    Ms. Rice. So that is the problem. The punishment for people 
who retaliate against whistleblowers isn't strong enough is 
basically what you are saying?
    Secretary O'Rourke. That is the mandatory. To be honest, in 
that case, there were several other mitigating factors--it was 
almost a technicality to charge them with retaliation.
    Ms. Rice. So why does it seem to me--it seems to me that 
there is always a benefit of the doubt given to the people who 
retaliate against whistleblowers than is--well, no but that--
you can shake your head but--
    Secretary O'Rourke. I don't agree with that.
    Ms. Rice. Well, okay, but we have seen example--
    Secretary O'Rourke. Okay.
    Ms. Rice [continued].--after example of it. So I have 
limited time, I just want to get to the hotline. What is the 
status of the hotline? There is still no oversight mechanism on 
the hotline?
    Secretary O'Rourke. OIG hotline or--
    Ms. Rice. The whistleblower hotline.
    Secretary O'Rourke. So the toll-free number that we 
maintain?
    Ms. Rice. Right. Toll-free, yes.
    Secretary O'Rourke. There is oversight in the sense of OIG 
looking at the files?
    Ms. Rice. No, no, oversight to make sure that it is 
actually being implemented--
    Secretary O'Rourke. It exists today.
    Ms. Rice [continued].--people know that--well, I know it 
exists, but it doesn't seem--there doesn't seem to be much 
information out there about how people can access it.
    Secretary O'Rourke. I will take that as a critique. I mean, 
that has been an effort that--
    Ms. Rice. Well, no, it is not a critique, it is a fact.
    Secretary O'Rourke. Well, it is communication throughout 
the organizations. This is all--this has been a top down 
communication of getting the word out. We have done all 
employee e-mails. The word has gone out. It is the consistency 
of that and having folks realize there is a new outlet for 
their disclosure.
    There is already a hotline at OIG. There is already a 
hotline at OSC. There are multiple ways for disclosures to be 
made. Ours is the latest one that got created last June. So it 
is going to take a time before everyone understands exactly, 
and really which one to use. Because it is confusing to 
whistleblowers. We know this. We hear this from them.
    Ms. Rice. Okay, then how do we make it less confusing? Why 
don't you tell us how we can make it less confusing?
    Secretary O'Rourke. Create one.
    Ms. Rice. Okay. That is a great idea.
    Secretary O'Rourke. Then you have to take it away from the 
Office of Inspector General and the Office of Special Counsel, 
which are governed by other statutes. I don't want to be glib 
on that.
    Ms. Rice. There are oversight--you know, features.
    Secretary O'Rourke. I think whistleblowers should have as 
many outlets for making disclosure as they need, and we will 
work out the complexity on the back end of where that 
disclosure is. That requires more cooperation between the folks 
that receive them.
    Ms. Rice. The problem is that if you flood people with--it 
is how you get information to people--
    Secretary O'Rourke. Sure.
    Ms. Rice [continued].--and how efficiently you do it, and 
how easy you make it for people to actually dial a number. And 
I think there needs to be, obviously, some more oversight in 
that field. Thank you, Mr. Chairman. I yield back.
    The Chairman. I thank the gentle lady for yielding. Mr. 
Mast, you are recognized for five minutes.
    Mr. Mast. Thank you, Chairman. Thank you for being here, 
Mr. O'Rourke. You have got a great Colonel sitting behind you. 
I have known the man for a number of years. So I am glad to see 
him working with you.
    I am the end user of the VA to the tee. I get every bit of 
my health care through the VA. I hold weekly office hours in 
the VA for any veteran that wants to talk about any issue, VA-
related or otherwise. I am walking the halls there frequently. 
I see them. I see my fellow veterans constantly. I see the 
smiles on them, and I see their truly heartfelt gratitude when 
they get the care that they were seeking at the VA. And I also 
see their frustration when their care was lacking in timeliness 
or appropriateness. And I hear about it both, as we all do.
    And that is, in summation, what we all want to see. We want 
to see the care for every end user of the VA to be best 
possible care that it can be. It is summed up very simply like 
that. I think we all agree on that. It is what we want to see.
    Now, you have said in this hearing several times that you 
want to see a change in the culture of the VA. So I just want 
to give you a chance to espouse upon that. What would you 
change in the culture of the VA? If you had a wand, if you 
could build it up brick by brick from the beginning, what would 
change in the culture of the VA for you? What would be your 
tolerance for any negligence whatsoever, big or small, what 
would you change about that? That is my only question for you.
    I give you the next three minutes and 20 seconds to espouse 
upon how you would change the culture of the VA and what you 
want to see out of that, sir.
    Secretary O'Rourke. So in the context of--first, starting 
with the context of the Office of Accountability and 
whistleblower protection, I want us to all acknowledge that 
that is where this starts. It starts with accountability, 
whether it is a frontline employee making a bed, or whether it 
is a medical center director that has multiple issues going on 
during the day but needs to find where he or she should put 
their priorities.
    We know that from observation, when you meet veterans that 
are walking through a hospital that just passed the medical 
center director and got to speak with him briefly, they know 
that the leadership there at that local level is engaged.
    In the medical centers that I visit, you can feel the 
difference when that--when leadership is engaged in that way. 
So the first thing would be is medical center directors, 
leadership fully engaged with their veterans, fully engaged 
with their staff, listening to them, raising concerns, raising 
issues, whether it is funding, whether it is just a--of 
resources, bringing those up and down the chain of command and 
having that be seamless and transparent.
    One of the things that is frustrating a lot of times is 
between our administrations, between our staff offices, we have 
a lot of time where we don't work together on problems. We try 
to work on them either individually or we just try to not think 
about them too much. Breaking down those barriers between--
whether it is between IT and VHA, whether it is between VHA and 
VBA, working problems collaboratively with the veteran's 
outcome in mind.
    That has been said before. That is not something new for 
anybody to hear, but it is truly in the execution of that from 
the very building--the processes to support that, that is what 
would change--I would change immediately if I could. But that 
involves personalities. That involves people that have been 
doing things their whole careers. Getting them to move away 
from those well-established, well-developed opinions and the 
processes is difficult. It takes time.
    But when you have a law like this that links together what 
I--and I will keep saying it. Chairman Roe and I talked about 
it over the weekend, why I think this is--why I don't think we 
give ourselves or Congress gives themselves enough credit on 
this is they put together accountability, performance with this 
whistleblower retaliation, whistleblower protection piece 
which--as we even talked about, it is not well-defined. And we 
get stories that come in different ways. And I am not 
discrediting any of them, but really getting to the truth and 
getting the facts of those is difficult. And it requires people 
to be--to withhold judgment sometimes, but then look at all of 
the facts and then make determinations there, not just go off 
on a track.
    So why I think this is so critical is that it gives us the 
tools as leadership to talk to other leaders and say here is 
how you need to hold yourself accountable, hold your people 
accountable, how you should be performing, and it not just be 
an empty discussion. And then say I am going to come back in 
six months, if you haven't done these things, I am going to 
remove you. I am going to end your Federal service, which is a 
huge thing. It is not anything that any of us in this office 
ever came to lightly.
    When we go to a medical center director and say your 
service is now over, sometimes when they have had 15, 20 years 
of service, that is a monumental thing to do, but it is what is 
going to motivate them to get better. And that is when it is 
going to motivate them to be more accountable to their 
employees. So you see it when you see it at a medical center. I 
would love to take those folks and make an example of them 
across the rest of the VA and say this is how everybody should 
operate, but I have gone over my time.
    Mr. Mast. Thank you, Mr. O'Rourke. Thank you, Chairman. I 
yield back.
    The Chairman. I thank the gentleman for yielding. Mr. 
Peters, you are recognized for five minutes.
    Mr. Peters. Thank you very much, Mr. Chairman. And thanks 
for being here today with us. At the VA, serving veterans 
should always come first. And we have to value whistleblowers 
who call out bad actors and toxic culture. In fact, that is why 
a lot of us supported the Accountability Act, which was a big 
stretch for a lot of us to give the VA the tools to make sure 
that everyone, from the secretary all the way down to anyone 
who is in the cafeteria, is serving the veteran and not the 
bureaucracy. And I think we were on board with that.
    The Former Secretary Shulkin said he didn't think that this 
would be a tool that was going to lead to mass firings. Dan 
Caldwell of Concerned Veterans of America wrote an article 
entitled, ``One accountable government board stands in the way 
of VA accountability.'' Because before this bill, senior 
officials could appeal decisions to the Merit Protection 
Systems Board, now they can't. In that article, he writes that 
that board had a history of blocking demotions of--or firings 
of negligent and bad senior VA employees. And the current SVAC 
Chairman, Senate Chairman Isakson said he thought the bill 
would create a culture of accountability at the VA.
    So at its passage, a lot of democrats signaled concern that 
this would be taken advantage of, ultimately supported the 
bill. I supported the bill because we thought it was the best 
compromise to hold the VA accountable to fix its own culture.
    And I just want to explore the possibility that, and you 
have addressed some of the numbers, but that we not create a 
culture of fear as opposed to accountability. A culture of fear 
that makes the VA's employees feel like any small mistake could 
mean losing their job, or prevents whistleblowers from stepping 
up and having faith in the accountability system.
    And my colleague, Ms. Kuster, rightly observed last year 
that senior executives are at the level at which decisions end 
up being made, not the lower level folks. So I wonder--I also 
just refer to one more thing. VA put a press release out on 
April 25th, 2018. It is very short. It says, ``Under VA's new 
leadership, which is now firmly aligned with President and his 
priorities, the Department's operations have improved in many 
ways. In a number of cases, employees who are wedded to the 
status quo and not on board with this administration's policies 
or pace of change have now departed VA.''
    I wonder when you--under what circumstances you think that 
disagreeing with the administration is a fireable offense?
    Secretary O'Rourke. I don't think that has ever factored in 
any of the processed actions that we have taken at VA.
    Mr. Peters. Well, I guess let me explore it. Obviously, if 
someone at the senior--I don't know who these individuals are. 
I appreciate some maybe, without identifying who they were, 
what does that mean? People who weren't on board. Why have they 
left? Were they asked to leave or what is the context for that?
    Secretary O'Rourke. Any time you start shifting the 
operation of an organization to start focusing on things like 
veterans, whether it is electronic health record, Mission Act, 
those kind of things, folks realize maybe on their own that 
they don't want to be there. I think there is a few cases that 
we could look at of folks in senior positions where they 
advocated for a different approach and then the organization 
took another--went in a different direction and they just felt 
like that wasn't a place they wanted to be anymore.
    That is a personal decision people get to make.
    Mr. Peters. So in these cases, really, it just dawned on 
them that I don't match this organization anymore, it is time 
for me to leave. Is that what you are saying? No one was asked 
to leave?
    Secretary O'Rourke. No, not in the cases I think you are 
probably referring to because those really ended up being--in 
fact, some cases, we were--we found that there really wasn't an 
alignment at all with where the VA was going. So I am actually 
surprised they stayed as long as they did.
    Mr. Peters. And I understand, too, that if someone is not 
on board with the policies at the high senior level that they 
might be asked to leave.
    Secretary O'Rourke. Well, I would even go even further than 
that. I mean, we are not talking about policies. We were 
talking about things like the electronic health record, the 
decisions that were made there both by Dr. Shulkin, by this 
Committee and by the Congress, and also the Mission Act. I 
mean, we have some very historic and transformative changes 
happening at VA that are going to change the status quo.
    Mr. Peters. Right.
    Secretary O'Rourke. And I think when that really became the 
reality for the organization, folks had to sit back, and take 
stock of that, and see what they wanted to do.
    Mr. Peters. How are you assuring that people aren't 
disciplined or fired for their own personal political beliefs. 
And I just--we just had an example of this in the FBI where a 
gentleman was by all evidence was doing his job, actually was 
removed from the case because there was a perception he was 
biased. How do you parse out when people's personal feelings 
about the administration might be out of line, but they are 
doing their job okay? Are you trying to protect those people?
    Secretary O'Rourke. When those people, in that case, make a 
whistleblower disclosure on something unrelated to politics, 
absolutely. They get the same protections as whistleblowers 
across the board. In misconduct cases, misconduct is not--has a 
very specific definition. It is not political, it--
    Mr. Peters. It has nothing to do with a person's political 
beliefs, individual beliefs?
    Secretary O'Rourke. No.
    Mr. Peters. Okay. My time as expired, Mr. Chairman. Thank 
you.
    The Chairman. Thank you, Mr. Peters. Mr. Arrington, you are 
recognized for five minutes.
    Mr. Arrington. Thank you, Mr. Chairman. Mr. O'Rourke let me 
just dive right in here. How many employees do you have who 
were hired for specific job, duties probably outlined in the 
posting, who are now spending 100 percent of their time on 
union activity or official time?
    So almost 500 employees who spend 100 percent of their time 
on something other than the job they were hired to do. How do 
you hold those people accountable?
    Secretary O'Rourke. I believe the recent executive orders 
will require all employees to go back on--at the time I think 
25 percent is only required--or the only allowable union time.
    Mr. Arrington. Can you hold those employees accountable for 
doing a job they were hired to do if they are spending 100 
percent of their time on union activity? And not the taxpayer 
funded needed for serving our veterans job that they were hired 
to do; can you hold them accountable?
    Secretary O'Rourke. With the implementation of the--
    Mr. Arrington. Currently, can you hold them accountable 
under the current construct?
    Secretary O'Rourke. We weren't--
    Mr. Arrington. I mean, if the answer is no, I mean, it is 
no. Let's get to it. It is no. And I hope you change it. I had 
a law that we passed out of the Committee, one of the most 
disappointing experiences on the Committee because it was a 
partisan vote. I didn't get one of my colleagues to vote to 
reduce that to 25 percent. I think that is reasonable. Do you 
know what the legal standard is for administering official 
time? I am not going to try to stump you.
    Secretary O'Rourke. I am sorry.
    Mr. Arrington. Let me just read it.
    Secretary O'Rourke. Sure.
    Mr. Arrington. You can have official time, but it has to be 
administered in a way that is reasonable, necessary, and in the 
best interest of the public. Do you believe somebody spending 
100 percent of their time on union activity or official time, 
is reasonable, necessary, or in the best interest of the 
public?
    Secretary O'Rourke. I think I would like to answer that 
question by saying I am looking forward to getting, especially 
the 11 psychologists that are on 100 percent union time back to 
serving veterans. And an area for mental health is very 
critical for the VA.
    Mr. Arrington. Well, let me ask your colleagues, do you 
think 100 percent of time spent outside of the job they were 
hired to do is reasonable, necessary, and in the best interest 
of the public? This is the law of the land. This is what we are 
supposed to do as a Committee is to hold people accountable to 
the laws of the land. Is it reasonable?
    Mr. Maenle. And I can tell you, I was hired to serve 
veterans. And when you are not serving veterans, I think we 
need to take a hard look at what we are doing to get you back 
to serving veterans.
    Mr. Arrington. It is hard to serve a veteran when you were 
hired to do a job and then you end up spending 100 percent of 
your time on a job--I am telling you, anybody listening to this 
in--across this great country is scratching their head about 
how in the world we can create a culture of accountability when 
you have policies in place where somebody can spend 100 percent 
of their time on something other than what they are hired to do 
and that that is acceptable. How can that be acceptable?
    What about you, Mr. Nichols--Nicholas, do you think it is 
reasonable?
    Mr. Nicholas. No.
    Mr. Arrington. Okay. Thank you. It is great to get a direct 
answer. I hope there is no retribution made. You need to file a 
whistleblower complaint when you get back, so you are 
protected, but--because I worry for you now, but I appreciate 
the honesty and the American people appreciate it.
    Do people have a constitutional right to a job at the VA?
    Secretary O'Rourke. No, sir, not that I am aware of.
    Mr. Arrington. Should the public sector employees be held 
to a different standard of accountability than those--130 
million hardworking, God-fearing, tax paying Americans who work 
outside of the Federal government, should there be two 
different standards?
    Secretary O'Rourke. No, sir.
    Mr. Arrington. Do VA employees retain their right to sue if 
they are wrongfully terminated? Do they have that right?
    Secretary O'Rourke. Yes, sir.
    Mr. Arrington. So they retain that right. Do they have the 
right to go choose to leave the VA and work somewhere else if 
they don't like the way they are treated and they feel like 
they were performing and etcetera, etcetera?
    Secretary O'Rourke. Yes, sir.
    Mr. Arrington. Do the 130 million people who are not part 
of the Federal government system and the VA, do they have a 
Merit System Protection Board and what is their standard of 
evidence when they are fired? Is its substantial evidence or is 
it preponderance of evidence? Which one?
    When a private sector employee, someone outside of the 
Federal government, is fired what is the standard by which the 
employee has to present their case in order to fire that 
employee? Is its substantial evidence or preponderance of 
evidence?
    Secretary O'Rourke. They don't have MSP--
    Mr. Arrington. They don't have evidence, so--okay. But 
they--okay. Let me go back to the line of questioning of my 
colleague, Mr. Takano. You said in 2014, were there about the 
same proportionately low wage and veteran employees that were 
removed then as there are now, proportionately?
    Secretary O'Rourke. Yes, sir.
    Mr. Arrington. So there is no difference, just percentage-
wise. There may be more numbers, but as a percentage, that it--
the same percentage or trend then exists today?
    Secretary O'Rourke. Yes, sir.
    Mr. Arrington. Is there a carve-out for veterans who don't 
perform well consistently to not be fired?
    Secretary O'Rourke. No, sir.
    Mr. Arrington. Is there a carve-out for disabled veterans 
if they are not performing consistently will not be fired?
    Secretary O'Rourke. No, sir.
    Mr. Arrington. Is there a carve-out for low wage people or 
high wage people or blonde hair people or blue-eyed people that 
aren't performing well, is there a carve-out for those guys 
because I would like to know it? That is a loophole, we need to 
fix it.
    Secretary O'Rourke. No, sir.
    Mr. Arrington. Okay. Mr. Chairman, I yield back.
    The Chairman. Time is expired. Mr. Correa, you are 
recognized for five minutes.
    Mr. Correa. Thank you, Mr. Chairman. Gentlemen, the VA has 
a very important mission to take care of our veterans who 
served our country honorably. The job is really one of function 
of personnel. 99 percent of the services are personnel related. 
Personnel management, important issue. GAO disabled American 
veterans have said there is issues of personnel management. 
Morale, retention.
    We have talked about removing employees. My question to you 
is what have we done to retain employees? In this Committee, we 
have talked about the fact that salaries aren't competitive in 
many places. So what are we doing--what do we need to do to 
make sure that we hold on to those valued employees at the VA?
    Secretary O'Rourke. Absolutely. In the context of the 
accountability and whistleblower protection law, it is that 
accountability of peace. When employees don't feel safe, when 
they want to blow the whistle and can't, or don't feel like 
they can, if they blow the whistle and don't see anything 
happen. Maybe they just talk to their supervisor and say there 
is a problem here and they don't see a response, that is an 
accountability issue.
    And before, when we could have a culture of well, if I 
don't do something this time, it is not going to make any 
difference, and an inconsistency of an application of 
standards, you develop those problems over time. This law at 
least provided some tools, some more tools, for us to be able 
to address that. But it is going to be the intent. You are 
exactly right. It has to be our intent as leadership, and then 
to make sure that we hold each level of management accountable 
to then provide those employees at every level with what they 
need.
    Mr. Correa. Let me ask the question in a different context. 
We have been talking about removing employees. Flip it around. 
Retaining employees. What are we doing to make their life at 
the VA something that people wake up and say, ``You know what, 
I am going to have a great day? I am going to go help 
veterans.''
    Secretary O'Rourke. Well, sir, I think that is where the 
job I have is actually fairly easy. Serving veterans is the 
best job you can have. I am sorry, I even told the group of 
political appointees when we first got here, you will not have 
a more righteous job than working at the VA because you get to 
serve veterans.
    Mr. Correa. But yet, we have an issue with turnover.
    Secretary O'Rourke. I would say we have got a complex HR 
system and a complex system in general, and it is going to 
require very intentional work on our part, on your part to 
solve this.
    Mr. Correa. And this is not an issue of got you. And Mr.--
Jodey, before you leave, I am going to follow up on some of 
your comments. But again, just you know, I want to work with 
you, try to figure out how do we make it a better place for 
employees to work. And I wanted to make sure he stayed here, 
Jodey, because I wanted to follow up with some of your lines of 
questioning in the two minutes I have got.
    Are there any other employees that should be at the VA that 
you have lent to other agencies or other organizations that 
should really be at the VA as opposed to be working somewhere 
else?
    Secretary O'Rourke. Not that I am aware of, but let me 
check back to be completely accurate with that question. But I 
don't believe we make a habit--I know I detailed lots of 
people--
    Mr. Correa. Mr. Arrington is--he has got a good point, 
which is you are supposed to be dedicating 100 percent of your 
time working, taking care of our vets. I just want to make sure 
are there any other employees at the VA that are not actually 
working at the VA, but maybe other departments that you have 
lent out to or have assigned to.
    Secretary O'Rourke. Like I said, sir, I am not aware of 
any. And like I have said, we have actually detailed or brought 
employees from DoD, HHS, other places to VA to help us. So a 
great example is the lady running our EHRM program is from HHS. 
Highly qualified, highly skilled in this area. We brought the 
best we could find to lead that project here at VA.
    Mr. Correa. I would like if you could go back and see, look 
at your notes and see if there are other folks out there that 
are actually not working in the VA that should be working in 
the VA.
    Secretary O'Rourke. Absolutely.
    Mr. Correa. Okay.
    Secretary O'Rourke. I don't--sir, I am not aware of any.
    Mr. Correa. Thank you very much.
    The Chairman. Yield?
    Mr. Correa. Yes. I am going to yield the rest of my-- go 
ahead.
    Mr. Takano. Mr. O'Rourke, you went along with the 
characterization that official time is union time. You actually 
used the term yourself. Is it true that official time can be 
used to conduct union business? Does not the law prohibit that 
from happening?
    Secretary O'Rourke. I believe the law does prohibit that.
    Mr. Takano. Then why did you refer--the law does prohibit 
it, right, currently?
    Secretary O'Rourke. I believe that is what you--
    Mr. Takano. So why did you refer--why did you respond to 
Mr. Arrington's question as going along with the conflation of 
using union time and official time, saying that they are the 
same thing. Are they the same thing?
    Secretary O'Rourke. They are commonly referred to as the 
same thing.
    Mr. Takano. But are they the same thing?
    Secretary O'Rourke. Well, I am sure there is different 
legal definitions that we have talked--
    Mr. Takano. Are they the same thing?
    Secretary O'Rourke. Are they the--
    Mr. Takano. They are not the same thing. We have gotten 
lazy in our language. They are not the same thing. And that is 
the opportunism that is being exploited by Mr. Arrington by 
going after union time when union--after official time. 
Official time is not union time. It is not time to conduct 
union business. Is that correct?
    Secretary O'Rourke. Sir, I want to get--
    Mr. Takano. Is that correct?
    Secretary O'Rourke [continued].--psychologist back to work.
    Mr. Takano. Is that correct? It is a simple answer.
    Secretary O'Rourke. That they are the same--
    Mr. Takano. They are not the same thing.
    Secretary O'Rourke. They are not the same thing, but at the 
end of the day, they are the same thing.
    Mr. Takano. No, that is fine. Thank you. I accept your 
answer, sir.
    Secretary O'Rourke. There are people not working--
    Mr. Takano. Thank you. It is not the same thing.
    The Chairman. This gentleman's time is expired. Mr. 
Higgins, you are recognized for five minutes.
    Mr. Higgins. Mr. Chairman, I would like to yield a minute 
of my time to Mr. Arrington.
    Mr. Arrington. Thank you, Mr. Higgins. I think it is the 
same thing. I think we are trying to parse words up here. I 
think if you laid it out and I wish I had it in front of me. I 
hope somebody can get it and just read through it.
    You can have somebody on ``official time'', which is I 
believe time spent on union activity actually lobby Congress. 
That is one of the issues or activities that have been applied 
and determined acceptable. They go to union conferences. There 
are all sorts of things that I would say it is union activity.
    I am not saying there shouldn't be unions. I am saying you 
can't spend 100 percent of your time if you are hired to be a 
physician to take care and provide health services to a veteran 
and then end up spending 100 percent of your time lobbying 
Congress for your union, being at conferences for your union. I 
just don't think that is acceptable. I don't think it is 
reasonable, necessary, or in the best interest of the public. I 
am just trying to follow the law.
    The Chairman. Mr. Higgins, you reclaim your time?
    Mr. Arrington. So I yield back to my colleague, Mr. 
Higgins.
    Mr. Higgins. Thank you, Jodey. Mr. Chairman, in the 
interest of bipartisanship, we could consider as a Committee a 
round table to discuss this issue. It is passionate. We all 
care about the same thing.
    Mr. O'Rourke, thank you for being here. Do you generally 
recognize, sir, that this is an era of reform in the VA? That 
the VA has been a mess, man, for decades. And it didn't get 
that way under one administration, or one executive, or one VA 
Committee. And this Committee, in a very bipartisan manner, has 
touched my spirit, has embraced the challenge to reform the VA. 
But does the VA get it that this is an era of reform?
    Secretary O'Rourke. I don't think any organization self-
reforms. It is going to be what the leadership of this Congress 
and the leadership--
    Mr. Higgins. But is there a clear understanding within the 
culture that you described if you could change one thing, or if 
you could identify one thing that reflects this era of the VA 
is that it is an era of accountability. But I am going to talk 
about is there a consequence to accountability. So I am just 
asking you, sir, generally speaking, as a man, as an American, 
is it recognized within the VA that we have to reform this 
thing?
    Secretary O'Rourke. I think there is a growing number of 
people in the VA that recognize that.
    Mr. Higgins. Okay. For the record, I would like you to 
answer are MSPB judges providing deference to VA's decisions 
and not mitigating penalties?
    Secretary O'Rourke. Yes.
    Mr. Higgins. Are arbitrators following the Act's timelines 
and are they giving deference to the penalty decision?
    Secretary O'Rourke. Not consistently.
    Mr. Higgins. And what could be done, or perhaps you could 
provide in writing for the Committee, what could be done--what 
could we do as a body to help you enforce within the executive, 
the arbitrators following the Act's timeline.
    Let me ask you, sir, are you familiar with confidential 
informants that are used across the country in law enforcement?
    Secretary O'Rourke. Yes, sir.
    Mr. Higgins. And the key word there is confidential. Do you 
know what happens to a confidential informant if the detectives 
or the department reveals their identity?
    Secretary O'Rourke. Yes.
    Mr. Higgins. Yeah, we pretty much find them in a ditch 
somewhere. So whistleblowers, to me, are the equivalent of 
confidential informants. And I reflect a concern of my 
colleagues on both sides of the aisle regarding the protection 
of whistleblower's identifies. How can there be any complaints 
of retaliation if we are effectively protecting the identity of 
whistleblowers?
    Secretary O'Rourke. And that is--what you bring up is a 
great point because with retaliatory or retaliation cases, the 
identity of the whistleblowers no longer protect.
    Mr. Higgins. Exactly.
    Secretary O'Rourke. But you get to the earlier point of how 
do we--
    Mr. Higgins. There would be no retaliation if there is no 
identity exposed. So I think we should have great concern 
amongst the executive and amongst this body regarding the 
crucial important of the protection of whistleblower's 
identities because they are, in effect, confidential 
informants. And no more will come forward.
    We will dampen this reform effort if we don't place a great 
deal of emphasis on the protection of these identifies. I would 
just like to say that in cases that have been brought up by my 
colleagues regarding someone that has been accused of egregious 
behavior, are they allowed to continue on a job or are they 
placed on unpaid administrative leave?
    Secretary O'Rourke. Depending on their functional area. 
Local decision is made on whether to remove them from that.
    Mr. Higgins. Do you have the power to place them on unpaid 
administrative leave?
    Secretary O'Rourke. I believe that has been severely 
restricted and it was abused in the past. So we have had new 
rules around that.
    Mr. Higgins. All right. Perhaps you need that--Mr. 
Chairman, my time is expired. I yield back.
    The Chairman. I thank the gentleman. Mr. Lamb, you are 
recognized for five minutes.
    Mr. Lamb. Thank you, Mr. Chairman. Mr. O'Rourke, just a 
couple of questions about the union time/official time line of 
discussion. That time, whatever you want to call it, that is 
governed by the collective bargaining agreement between AFGE 
and the VA, correct?
    Secretary O'Rourke. Yes.
    Mr. Lamb. Okay. And that collective bargaining agreement is 
struck between the members of AFGE and the VA, correct?
    Secretary O'Rourke. Yes.
    Mr. Lamb. Okay. And that is something that those members 
were free to contract on their own with the VA, correct?
    Secretary O'Rourke. Yes.
    Mr. Lamb. And decide how they want that time to be used as 
part of the contract?
    Secretary O'Rourke. Yes. One fact in that is that this is a 
contract we have had rolled over for how many years now? Seven?
    Mr. Maenle. Seven years.
    Secretary O'Rourke. Yes, just to be clear.
    Mr. Lamb. No one held a gun to your head, right? It is a 
freely bargained contract between the VA and the members?
    Secretary O'Rourke. No, no.
    Mr. Lamb. Okay.
    Secretary O'Rourke. Although to be very clear, we did 
negotiate away management rights that we were not supposed to 
do.
    Mr. Lamb. Sure. But the contract stands, and it is 
transparent and opened to the public?
    Secretary O'Rourke. This--is, yes.
    Mr. Lamb. Okay. Now, you were in the military as well, 
right, Mr. O'Rourke?
    Secretary O'Rourke. Yes.
    Mr. Lamb. Okay. And in the military, officers are 
frequently held accountable for the actions of their 
subordinates, right?
    Secretary O'Rourke. Yes.
    Mr. Lamb. Yeah. And you are familiar with the phrase 
``Officers eat last.''
    Secretary O'Rourke. Yes.
    Mr. Lamb. Part of the military culture is that people at 
the top are supposed to look out for the people below them and 
take accountability for their actions, even if it is not the 
officer's direct fault. They have responsibility for the people 
underneath them.
    Secretary O'Rourke. Yes.
    Mr. Lamb. And that promotes a pretty good culture in the 
military, right?
    Secretary O'Rourke. For the most part, yes.
    Mr. Lamb. Do you draw on your experiences in the military 
in leading the VA?
    Secretary O'Rourke. I try to be cognizant that I am in a 
civilian agency, but yes.
    Mr. Lamb. Is that--is there overlap between the kind of 
culture you would like to promote in the VA and what you 
experienced in the military, as it relates to leadership?
    Secretary O'Rourke. Given our customer-base being veterans, 
yes. Because that is their expectations from what their shared 
experiences are.
    Mr. Lamb. I mean, one thing I saw in the Marine Corps was 
that when you create that kind of culture, you have leaders 
affirmatively go out and take responsibility for the people 
below them, even when no one tells them to. And the people 
below them see that and they want to succeed for the person who 
is leading them because they don't want the person who is 
leading them to get fired, if they like they, if they think 
they are doing a good job.
    I mean, that is like--when you talk about creation of a 
culture, that is what ends up happening day to day. Are you 
familiar with that?
    Secretary O'Rourke. Yes.
    Mr. Lamb. Okay. So if we just look at 2018 under the 
operation of this law, there have been about 15 managers fired 
overall? Is that an accurate number?
    Secretary O'Rourke. I think that is about right.
    Mr. Lamb. And it is fair to say whatever the number is, 
there have been hundreds of housekeepers, food service workers, 
and nursing assistants fired in that same time?
    Secretary O'Rourke. I think that is where our military 
analogy starts to break down a little bit because we are 
talking about high turnover, hourly waged--
    Mr. Lamb. Right. I am just talking, though, about people 
who have been fired. There have been hundreds of people in 
those three categories.
    Secretary O'Rourke. Also we need to understand that we are 
talking about highly desperate numbers of--I mean, we have 400 
SES's. We have--
    Mr. Lamb. Right. But those--that--
    Secretary O'Rourke [continued].--tens of thousands--
    Mr. Lamb [continued].--comparison of absolute numbers is 
accurate, that there have been 15--
    Secretary O'Rourke. I think we need to look at the 
percentages.
    Mr. Lamb. Yeah.
    Secretary O'Rourke. So if you look at senior leader 
removals as a percentage and the change, it is--it starts to 
normalize a little bit.
    Mr. Lamb. You are saying they are consistent across time. 
Exactly. At the same time, we have a lot of vacancies in those 
lower level positions, right? And in Pittsburgh, for example, 
near where I am--my district is, we have seen 46 adverse action 
against low level employees since the law was implemented. And 
there are 300 vacancies among similar positions.
    So I want to ask you, if you are one of the people who are 
left who has not been fired. Let's say you are a food service 
worker or a housekeeper. You have seen 46 of your colleagues 
receive adverse actions in the past year. There are 300 of your 
potential colleagues who are missing, because there are 
vacancies. You would agree that increases the workload for you, 
right? You probably have more of workload than you would have--
    Secretary O'Rourke. I think we need to put this in context, 
because I believe there is probably the same number fired the 
year before, and the year before that. So it is not a new--
    Mr. Lamb. Right, but the state of affairs today, there are 
people missing at the lower levels from the VA in places like--
    Secretary O'Rourke. Thee are not easy places to hire into 
and with the veteran's preference, which we hold to. It makes 
it even more difficult to fill those positions sometimes, 
especially at that level.
    Mr. Lamb. So from a housekeeper's vantage point, they have 
seen 46 of their colleagues punished in the last year. They see 
300 of them missing. Their work is additional every single day. 
And very few, if any, managers have been dismissed in that 
time. Do you think that they feel like they are part of a 
culture where officers eat last today?
    Secretary O'Rourke. I don't believe that is going to be the 
best way to describe that since we are talking about--
    Mr. Lamb. I don't think so either. Mr. Chairman, I yield 
the balance of my time.
    The Chairman. I thank the gentleman for yielding. Mr. 
Secretary, and thank you all for being here today and I 
appreciate that. And being no further questions, the first 
panel is dismissed, and I would like to invite our second panel 
to the witness table. Thank you for your service.
    The Chairman. Joining us on our second panel this morning 
is Mr. J. David Cox. Mr. Cox, welcome. The national president 
of the American Federation of Government Employees. Mr. Cox, 
you are now recognized for five minutes.

                 STATEMENT OF J. DAVID COX, SR.

    Mr. Cox. Thank you for the opportunity to testify today. 
The Accountability Act has turned out to be the most 
counterproductive VA law ever enacted. It has demoralized and 
harmed its dedicated workforce, a third of whom are veterans 
themselves. Here is what so-called accountability looks like 
under the new law.
    Although the VA has tried to hide the facts by denying 
information requests from Congress and AFGE, its own published 
data tell a terrible story of the 1,096 VA employees fired in 
the first five months of 2018, only 15 were supervisors, and 
that doesn't mean they are just SES'ers.
    Housekeeping aids, virtually all of whom are disabled vets, 
were the largest number fired, fired by nursing assistants, 
registered nurses, food service workers, and medical support 
assistants. These five groups make up 51 percent of all 
removals.
    The VA has refused to provide information on veteran 
status, gender, or race of those fired. Probably to hide the 
disproportionate effect of this harsh law on the most 
vulnerable individuals. Even though we don't have complete 
data, the disproportionate impact on VA's lowest paid and 
veteran workforce is undeniable. All of our current openings 
for housekeeping aids are for preference-eligible veterans and 
virtually all pay less than $35,000 annually.
    Nursing assistant positions start at around $30,000. And 
food service national postings list hourly wages as low as $11 
an hour. These are the jobs of the people being fired under the 
new accountability law.
    This destructive law was enacted despite warnings from 
experts that miss management, not the union, and not job 
protections for front line employees was undermining the VA's 
capability to deliver services to veterans. Healthcare experts 
repeatedly presented evidence that the VA health care system 
outperforms the private sector.
    Before anyone points to the Phoenix scandal as 
justification for this law, please recall that statements by 
Phoenix VA patient schedulers confirm that the wait list gaming 
was caused by severe shortages of providers and distorted 
management incentive systems. Not the union contract, and not 
incompetent are heartless workers who couldn't be fired.
    Gaming the scheduling system has been a product ever since 
post 9/11 veterans started returning home with complex medical 
needs over 15 years ago. We have been telling Congress that 
chronic short staffing was causing wait list manipulation and 
severe access problems at VA medical centers.
    We had also been asking for additional staff to reduce the 
claims backlog at VBA. Yet, thanks to the accountability law, 
four essential claims processing positions, veteran service 
representative, rating specialist, claims examiner, and claims 
assistants were among the largest groups of fired employees in 
2018.
    Destroying Federal employee due process and union rights 
continued to be the vehicles of choice for those intent on 
destroying the civil service and steering the VA into further 
privatization. In the accountability law, the lower standard of 
evidence in particular has lent fuel to the firing of 
employees, along with preventing MSPB administrative judges 
from imposing a lesser penalty when the evidence doesn't 
support removal.
    Before the accountability law, VA routinely offered 
employees a chance to improve their performance before firing 
them. Now, the agency is using its new authority not to 
shorten--but to go straight to firing. Finally, the act was 
supposed to improve protections for whistleblowers. But as we 
warned, it has had the opposite effect. It is easier than ever 
to fire a whistleblower. And you can see example of how this 
has occurred in my written statement.
    I want to conclude by pointing out that while the VA has 
not yet moved to evict all union representatives from their 
offices as the Social Security Administration did last week, no 
conversation about Federal labor management relations should 
occur without addressing this. President Trump is attempting to 
ruthlessly bust our union with his executive orders.
    While many Members of Congress have spoken out against 
these lawless and severe decrees, I ask that this Committee act 
to stop the VA from behaving in the same horrendous manner as 
the SSA. This Committee has an obligation to the democracy for 
which veterans risked their lives to prevent the executive 
branch from breaking the law and destroying Federal unions.
    Thank you, Mr. Chairman. I will be glad to take any 
questions from anyone.

    [The prepared statement of J. David Cox Sr. appears in the 
Appendix]

    The Chairman. Thank you, Mr. Cox. And just for the record, 
when I came to the Congress in 2009, the VA had about 250,000 
employees and we were spending about $97 and a half billion on 
benefits, cemeteries, and health care. The President's ask in 
this budget is $192.5 billion. And there are now--I am not sure 
what the number is, but 360 or 370,000 members at the VA. It is 
larger than the United States Navy.
    So we have added a hundred and something thousand employees 
in the last nine years and doubled the budget. That looks to me 
like if the VA is managing its assets, and I don't disagree 
with you. I think management is a huge part of this equation. 
We are not doing something right. We are not getting the bang 
for our buck if we are doing that.
    What evidence do you have that the accountability law is 
being used improperly when I am looking at GS-01 through 6, 
where pre-OAWP 61.2 percent of the dismissals were there and 
now it is 58.6? So the percentage actually in the 1 to 6 have 
gone down, not up.
    Mr. Cox. Mr. Chairman, I think if you would look at the 
fact that 15 management employees, and I heard the acting 
secretary refer--there is only 400 and some SES'ers, there are 
tens of thousands of managers throughout the rank and file of 
the VA from housekeeping aids, supervisors, food service 
supervisors, and many of those. And 15 is grossly 
disproportionate. The Phoenix scandal was all caused by top 
management in that VA by management incentives, in which we all 
know it was not from the frontline employees who were blowing 
the whistles, who were arguing and had to represent because 
that management was trying to fire them, sir.
    And also, I would like to add many of these veterans are 
returning and continue to return and we are not making just a 
50 year commitment, we are making a 60, possibly 70 year 
commitment to hundreds and hundreds of thousands of veterans 
and how the number of staff is going up, but there are hundreds 
and hundreds of thousands of veterans whose lives have changed.
    I have suffered with a broken leg for a little while and I 
have learned what veterans are suffering every day of their 
life and they gave their blood for their country.
    The Chairman. Not to filibuster my time, but basically this 
Congress, this bipartisan Committee have provided resources to 
the VA. There is no question about that.
    Mr. Cox. And we are thankful for what you have done.
    The Chairman. As I said, we have over doubled the amount of 
money and where the remainder, the other part of the 
discretionary part of our budget here until we voted for the 
omnibus budget in March of this year had remained flat. So we 
took money from other agencies and funded the VA. And I think 
it is disingenuous to say that we are not providing, or imply 
that this Committee and this Congress is not providing 
resources for the VA.
    And I don't disagree with you, Mr. Cox, on management. I 
think that is part of our problem. Let me ask you a second 
question. Do you think there are fireable offenses at the VA? 
Do you think there are reasons you should be terminated?
    Mr. Cox. Yes, sir, and I have said that every time I have 
come before your Committee or any other Committee. In any 
government agency, there is wrongdoings that should be fired.
    The Chairman. Thank you. And if the law is being done 
properly, what would you do to change this law if it is not 
being done as it was written and it is intended, as I said, on 
a voice vote from the United States Senate?
    Mr. Cox. I would change the law to go back for the proper 
penalties, the ability of MSPB judges to mitigate penalties 
because due process and having those checks and balances is the 
way we avoid having a politicized Federal work force. And now 
when we basically have employees who can be fired at will, we 
have somewhat of a politicized Federal work force. And there 
was a reason why we have MSPB and other entities for the 
Federal employees.
    The Chairman. So you would recommend going back to what we 
were, what we had, which clearly wasn't working. And I am not 
saying this I am working perfectly yet, but what we had was not 
working either. In your written statement, you said that the 
law has, ``Deprived veterans who depend on the VA for health 
care and benefits of the services of employees with extensive 
training and experience who have been fired under the acts and 
the authorities without a fair chance to improve their 
performance.''
    Even if I accept this premise--their premise, why is it 
just great employees with extensive training and experience 
need time to improve their performance?
    Mr. Cox. Number one, many of our veteran preference of 
veterans that are hired, they are hired with service-connected 
disabilities. One of the is PTSD. And many of us know that have 
a background, as I am a nurse and you are a doctor, we 
understand the illness of PTSD. And working with those 
employees and also that their behavior, sometimes we have to 
de-escalate.
    And I will commend some other government agencies that has 
realized that and has tried to put in accommodating situations 
for people with PTSD. And we understand sometimes if you are in 
a wheelchair or have a visible disability, but there are many 
disabilities veterans have that we need to certainly try to 
work with.
    The Chairman. My time has expired. Mr. Takano?
    Mr. Takano. Thank you. Mr. Cox, Mr. O'Rourke said that one 
of the things that they have been doing to ensure a smooth 
implementation and protection of whistleblowers is listening, 
including listening to employee unions. Do you feel that you 
have been included, or your members have been included, in 
productive conversations with the VA about the implementation 
of this law?
    Mr. Cox. No, sir, we haven't. And I would point out that 
with this Office of Accountability and whistleblower 
protection, we are not aware of any training or any mechanism 
that the VA has done to try to train rank and file employees.
    I believe I heard Mr. O'Rourke say that they had trained 
managers. We are not aware of any training. We at one time had 
requested the telephone number. We publicized for our 
membership to allow them to at least have it. And after that, I 
think the VA put out the number.
    Mr. Takano. How much time does a housekeeping aid, 
typically the employees for which the veterans' preference and 
non-competitive set aside was meant to benefit--how much time 
does a housekeeping aid get to improve their performance as 
compared to, say, a VISN director who is not implementing the 
law properly?
    Mr. Cox. Currently, the VA is saying it would only give 
maybe 30 days and many times they are not even giving 30 days 
for a housekeeping aid to improve their performance. And 
historically, and I worked in the VA many, many years, I saw 
bad managers be transferred from one VA to another VA with 
gigantic relocations, bonuses, and various things. And I know 
this Committee has certainly investigated that and you couldn't 
deny those facts. They stand for themselves, sir.
    Mr. Takano. The picture that my colleague from 
Pennsylvania, Mr. Lamb, presents about these huge number of 
vacancies at these low-level jobs, these entry level areas in 
housekeeping, that is--the vacancies. But then the idea that 
40, 50 people are dismissed in one year has got to have an 
impact on morale. Go ahead, sir.
    Mr. Cox. It does have an impact on morale. In particularly, 
when people believe that folks are fired without a due process. 
When people have their due process rights, they are offered 
opportunities to improve. They don't improve and I will agree 
with what the Chairman said. I mean some people, I believe, 
fire themselves. The VA or no other entity fires them. But that 
burden shifts on them. But people need to be given an 
opportunity and they need to be properly instructed. Many times 
there is training issues and all.
    Mr. Takano. Mr. Cox, Mr. O'Rourke also talked about 
training and whistleblower rights. Has AFGE heard of any non-
management employees receiving training on their whistleblower 
rights?
    Mr. Cox. No, sir, we haven't.
    Mr. Takano. I heard Mr. O'Rourke sort of say quietly as he 
was concluding his testimony, he was kind of complaining about 
the veterans' preference. That that is the reason why there are 
these vacancies at places like Mr. Lamb's facility. And I have 
heard similar complaints made about--inability to hire 
sufficient housekeeping staff.
    And let's be clear, the housekeeping staff is not an 
unskilled position. They need to be trained in biohazards. It 
is a very important role in keeping the--
    Mr. Cox. Yes, sir, it is.
    Mr. Takano [continued].--facilities clean and keeping the--
everything moving. Is that a fair defense that the veterans' 
preferences get in the way of hiring sufficient staff?
    Mr. Cox. Sir, I believe that veterans who have served this 
country loyally and put it all on the line so that I have the 
freedom of speech and all the rights that everyone in this room 
has, and that we have, the greatest checks and balances in our 
government, they deserve those jobs. And I will always say 
veterans' preference ought to prevail.
    Mr. Takano. In this executive order, really restricting the 
use of official time, is official time and being able to--could 
it be used to help some of these veterans who are employed in 
these positions? Especially the one with PTS and in the 
housekeeping roles. Is that an appropriate use of official 
time?
    Mr. Cox. Yes, sir, it is.
    Mr. Takano. And is that often-what official time is used 
for?
    Mr. Cox. Yes, sir, it is.
    Mr. Takano. So, you know, I--I think--and I didn't get time 
to get into the negotiated collective bargaining agreement 
which provided for official time, but I will just--I will yield 
back. Thank you.
    The Chairman. I thank the gentleman for yielding. Dr. Dunn, 
you are recognized.
    Mr. Dunn. Thank you very much, Mr. Chairman. Thank you, Mr. 
Cox, for joining us here today on this panel. Can--I want to 
check a few numbers with you. The number of members you have in 
the VA. I have a number 242,450, is that roughly correct?
    Mr. Cox. We represent right at a quarter of a million. I 
can't give you the exact numbers.
    Mr. Dunn. Okay, pretty close, right?
    Mr. Cox. I would say in that neighborhood.
    Mr. Dunn. So if we take the union dues, the lowest level of 
union dues per month, $18, and multiply that out, that is 
$4,356,000 per month that the AFGE makes. That is $52,272,000 
per year.
    My question to you is why should the taxpayers be footing 
the bill for office space, for equipment supplies, or employees 
for a union that very clearly has the means to support all of 
those things on its own?
    Mr. Cox. Well, sir, I am not sure you are computing. Those 
numbers just out of the VA, and I believe if you check AFGE's 
national budget, it is about $80 million. And that is coming 
from all of our government agencies. And you could check our LM 
that is online. But I would also say, sir, I believe in--
    Mr. Dunn. Do I have the number wrong? It is not $18 a 
month? Is that not what the dues--
    Mr. Cox. Our dues would vary all over the country.
    Mr. Dunn. That is the lowest number I could find.
    Mr. Cox. No, sir. We have over a thousand locals, some of 
them may be less than $10 a pay period, but--
    Mr. Dunn. So--
    Mr. Cox [continued].--in--the answer to your question, 
though, the Congress of the United States passed the Civil 
Service Reform Act to cover official time.
    Mr. Dunn. We are not going to--again, don't want to 
filibuster our time here, so--
    Mr. Cox. I wanted to answer your question. I just wanted to 
answer your question.
    Mr. Dunn [continued].--there are 500, almost 500 employees 
at the VA, who are 100 percent of the time not doing the job 
that they were hired to do. These are often highly skilled 
positions, psychologists and physicians, who are literally 
hired to be psychologists and physicians and are never seeing 
patients. Does that make sense to you?
    Mr. Cox. Sir, the law says that we can't discriminate 
against anyone who chooses to run and want to act as a union 
official, or be elected, or to be a union representative 
regardless of professions, race, creed, color.
    Mr. Dunn. I am not talking about a union official. Let's 
talk about using their official time. The taxpayers are paying 
their salary, you recall this, right, and they are not working 
for the taxpayers, they are working for the union.
    Mr. Cox. That is where we will disagree. They are working 
for the taxpayers because the wisdom of Congress in 1978 gave 
that right of official time, and it would be up to Congress to 
pass a different law to change it.
    Mr. Dunn. No, let's talk about the official time for a 
minute. The legal standards for what constitute official time 
is, and I am sure you are familiar with this: reasonable, 
necessary, and in the best interest of the public. Is that the 
best interest of the public to take a psychologist or a 
physician and put them--difficult to recruit to the VA, and put 
them--we have shortages in these positions, and put them to 
work doing union duties?
    Mr. Cox. Sir, I yield to the wisdom of Congress in 1978 
when they passed the law and we can't discriminate against 
anyone, sir.
    Mr. Dunn. You are taking a risk yielding to the wisdom of 
Congress, I will tell you way. Do you think the Americans at 
home watching this hearing, how do you think they react to 
learning that we have literally hundreds of highly paid 
specialists in the VA who aren't doing a lick of work that they 
were hired to do?
    Mr. Cox. And, sir, they are doing work they were hired to 
do because Congress in its wisdom passed a law that said 
official time was reasonable and necessary.
    Mr. Dunn. Let me tell you how I think the people back in 
the Second Congressional District of Florida are responding. I 
think they are shocked. I think they are dismayed. I think they 
are angry. That is what I think. And I think they demand that 
we actually fix a problem like this. I don't think I can go 
home and walk the streets and say this is okay. Don't worry 
about it. We are paying them much more than you will ever make 
to do something that isn't even serving the VA or the veterans.
    Chairman Roe offered some statistics concerning the 
ballooning VA budget and the size of its workforce. I think 
that those speak for themselves. They are shocking numbers. In 
nine years, we have doubled the budget and we have added 
100,000 employees to the roles. And in the same nine years, I 
promise you I don't think that the VA care has improved by any 
significant amount, probably just the opposite. So I am 
disappointed. I would echo the comments of my colleague about 
reform. I think the VA is in need of reform, and I think we are 
here to do that, and I have committed to do that. Mr. Chairman, 
I yield back.
    The Chairman. I thank the gentleman for yielding. Ms. 
Brownley, you are recognized for five minutes.
    Ms. Brownley. Thank you, Mr. Chairman, and thank you, Mr. 
Cox, for being here today. Certainly your voice is important to 
this discussion, obviously, but many discussions we have here 
in the Committee.
    I wanted to ask you, you know, in your testimony you also 
talked about the disproportionate impact on lower level 
employees and the percentage of adverse actions impacting 
general-level employees versus supervisors has remained. The 
VA's testimony saying that those two have remained roughly 
constant before and after the Accountability Act. Do you agree 
with that data? Do you agree with that discrepancy?
    Mr. Cox. I disagree in the fact that 15 supervisors, when 
there are tens of thousands of management officials throughout 
the VA, and you are telling me only 15 out of 1,096 our 
managers that had discipline problems or performance problems, 
but yet 1,085, or 80-some, rank and file people were the 
problems. That seems very disproportionate because I go back to 
Phoenix. I mean, let's talk about that. It was the SCSers, it 
was those horrible incentives that are in there, and we can 
talk about VBA, but I think you have all been there many times.
    Ms. Brownley. Do you, as an organization, collect any data 
on employee morale? Do a survey of such?
    Mr. Cox. More of it is antidotal from our locals but we 
believe morale is very, very low because there is a real fear 
of people losing their union rights, losing their rights to 
representation. There is a great, great fear in all Federal 
agencies of a politicized civil service work force, and I think 
that should scare every one of us to death.
    Ms. Brownley. Does the VA reach out to you? They testified 
this morning that they have got a survey out now and expect the 
results 45 days from now in terms of, you know, trying to 
measure morale within the VA. Does the VA reach out to you and 
say can you help us to make sure that the employees are filling 
this out, this data is important? Do they reach out to you and 
ask for your assistance to get--to try, in essence, to get 
really accurate data?
    Mr. Cox. Since Secretary McDonald and Secretary Shulkin 
have left, I have not heard a word from the VA.
    Ms. Brownley. Thank you. So it is fair to say that in this 
survey, they talked about the results of the previous survey 
that is public information not being very good, in this 
particular survey, they are not reaching out to you in any way 
for your assistance?
    Mr. Cox. Haven't heard anything from them, ma'am.
    Ms. Brownley. You also in your testimony you talk about the 
whistleblower hotline, that it is not being made public. And 
have you heard reports from employees that it is difficult for 
them to find the hotline information?
    Mr. Cox. Yes, ma'am, we have. Again, we requested that 
information, shared it with our membership, and that is how 
they became aware. And after we did that, the VA came out. And 
I would say that the union contract is the best thing in the 
world to protect whistleblowers, and then we have got Office of 
Special Counsel in the IG. Those have done a very good job. 
This creating a separate entity becomes somewhat of the fox 
guarding the hen house, and I think on both sides of this room 
that there is not a soul that wants more bureaucracy, and AFGE 
doesn't want more bureaucracy in the protection, or the 
standing in the way of whistleblower's coming forward.
    Ms. Brownley. Have you requested that the VA make this 
whistleblower number public information?
    Mr. Cox. Yes, we have.
    Ms. Brownley. And the VA's response was?
    Mr. Cox. I haven't heard a response from them.
    Ms. Brownley. You also testified that the VA has 
essentially stopped using performance improvement plans. Have 
you seen this across the VA?
    Mr. Cox. Yes, ma'am, I have.
    Ms. Brownley. At every level?
    Mr. Cox. At every facility, yes, and--
    Ms. Brownley. Every facility and in sort of--
    Mr. Cox. Yes.
    Ms. Brownley [continued].--at every level--
    Mr. Cox. Yes.
    Ms. Brownley [continued].--whether it is, you know, mid-
level, lower-level?
    Mr. Cox. I am aware of the rank and file employees, I am 
not aware of what they do with management employees.
    Ms. Brownley. Thanks. I only have a few seconds left, but I 
know that one of the issues that AFG has struggled with is 
getting data from the VA as to how the Accountability Act is 
being implemented. What additional data has AFG requested from 
VA that is still not available?
    Mr. Cox. I would have to look to some of my folks because 
we have requested many things and have gotten very little, 
almost no, data. We want to know veterans preference; we 
obviously want to know gender; we want to know grievances that 
reveal fraud, waste, and abuse; the veterans' preference; 
gender; ethnicity, if they have it; age; all of those type 
things that would show patterns of treating one person 
different than others.
    Ms. Brownley. But you are not even sure that that data is 
being collected?
    Mr. Cox. No, we know it is being collected.
    Ms. Brownley. You do? Okay.
    Mr. Cox. I am sure it is being collected. The VA collects 
lots of data.
    Ms. Brownley. Thank you, sir. And I yield back.
    The Chairman. Thank you. Mr. Higgins, you are recognized 
for five minutes.
    Mr. Higgins. Thank you, Mr. Chairman. Mr. Cox, thank you 
for appearing before this Committee today. I don't know if I 
have ever witnessed a more passionate union employee.
    Mr. Cox. I am a passionate registered nurse that cared for 
veterans for 23 years and loved every second of it also, sir.
    Mr. Higgins. And a dedicated union spokesman. There is 
nothing wrong with that. You see we should all recognize that 
we are here to service veterans and Americans, we shouldn't be 
pro-union or anti-union, we should be pro-American and pro-
veteran on both sides of the aisle and on that side of your 
table.
    You have made repeated testimony regarding the numbers of 
VA employees that have been let go. Obviously, there is a 
process by which a VA employee is fired like anywhere else, but 
supervisors, according to your testimony, sir, and I ask you 
respectfully, that number reflects a disparity in your opinion 
as compared to housekeeping aids, nursing assistants, 
registered nurses, food service workers, and medical support 
assistants, which are the largest numbers that have been let 
go. Would you agree that that has been your testimony, that 
supervisors being let go, that is a disparate number?
    Mr. Cox. It seems like a very small number in proportion to 
the fact that there are thousands, tens of thousands, of 
managers.
    Mr. Higgins. Okay. Is it your testimony that it just seems 
like it or that it is?
    Mr. Cox. Sir, because I don't have all the VA's 
information, all the things I have to rely upon the data I 
have.
    Mr. Higgins. You certainly are an intelligent gentleman, 
sir. We are making clear and courageous statements here today. 
Do you think that not enough supervisors have been fired?
    Mr. Cox. I would say that would be up to the wisdom of this 
Committee to request that data, and I have heard--
    Mr. Higgins. I am asking your opinion.
    Mr. Cox. In my opinion, I think that the VA needs to make 
that data available, and maybe they would dispel my personal 
feelings of what I would view as antidotal information.
    Mr. Higgins. Are supervisors' members of your union?
    Mr. Cox. No, sir, they are not represented by our union. 
No, sir.
    Mr. Higgins. Okay. It seems to me that your general 
consensus is that the existing law that was enacted, the goal 
of the Accountability Law was to bring swifter action to VA 
employees regardless of seniority, or lack of seniority, or 
position, and to make sure that the judges didn't circumvent 
the managers' decisions. So it seems to me that you are stating 
that the managers that are in place are abusing the existing 
law, and making it non-functional, and that more managers 
should be fired, more supervisors should be fired. Is that not 
your statement? Is that not your opinion?
    Mr. Cox. I think that is how you are trying to interpret 
it, sir. But I am saying that the--
    Mr. Higgins. Reinterpret it then, please.
    Mr. Cox. Well, I--
    Mr. Higgins. Do you believe more supervisors should get 
fired or not?
    Mr. Cox. I think that any employee who is not doing their 
due diligence should be held accountable, and it is an 
accountability law.
    Mr. Higgins. Thank you. And if they are held accountable, 
should there be a consequence to that accountability?
    Mr. Cox. Yes, sir, there should, with a due process to it.
    Mr. Higgins. And should that sometimes include being fired?
    Mr. Cox. Yes, sir, with a due process--
    Mr. Higgins. Okay. Referring to the--
    Mr. Cox [continued].--so we avoid an apolitical workforce.
    Mr. Higgins [continued].--those VA employees that have been 
fired, have they all not, in their hiring process, their 
training, their certifications been clarified and documented in 
the hiring process? Whatever their position is within the VA, 
have they not received extensive training and certification for 
their particular job?
    Mr. Cox. We would certainly hope so, but I would go back 
and look at the--
    Mr. Higgins. Well, it is a matter of law--
    Mr. Cox [continued]. --director of Phoenix, sir.
    Mr. Higgins [continued]. --that they have that.
    Mr. Cox. I would go back and look at the director at 
Phoenix.
    Mr. Higgins. It is a matter of law that qualifying 
individuals fill these positions. So the lack of a current 
performance improvements program, what could possibly be 
presented to an American man or woman that is highly qualified 
and certified for a position within the VA--whatever that 
position is, because veterans and Americans are done with the 
past performance of the VA. We demand reform, and this 
Committee is committed to making it happen.
    So what possibly could an employee of the VA, having been 
highly trained and certified, regardless of position, why, if 
they are found to be negligent in their duties, why would they 
not be fired? What could they possibly learn from a two- or 
three-week performance improvement program that they didn't 
learn in six months or years of certification and training 
prior to being hired?
    Mr. Cox. Well, sir, I think part of the issue is the VA 
constantly changes its performance standards trying to crank 
the machine up, particularly in VBA, that may not be a 
realistic machine to do that type of work--
    Mr. Higgins. May I submit to you--
    Mr. Cox [continued].--in a proper manager system.
    Mr. Higgins [continued].--sir, that every American man and 
woman viewing this hearing today has taken to themselves, we 
bring our standards to work, man. There is no such thing as 
menial labor in my life, there is only menial men and women. It 
is impossible for a man or a woman of standards to perform a 
menial task because there is no such thing, there is only 
menial men and women. In your testimony you have repeated the 
mantra that the current law is not working. May I suggest to 
you that management of the current law is what we need to 
address. Mr. Chairman--
    The Chairman. Gentleman's time has expired.
    Mr. Higgins [continued].--I yield back.
    The Chairman. Mr. Lamb, you are recognized.
    Mr. Lamb. Mr. Cox, could you maybe just explain in a little 
more detail some of the examples of how and why people are 
being fired in such large numbers since the implementation of 
this act? I mean, based on the information in your testimony, 
and plenty other information we receive, it is not so simple as 
an employee being found negligent in the care of a particular 
veteran, right, there are often other reasons that management 
is using to fire people?
    Mr. Cox. That is correct, sir. And particularly in VBA, the 
benefits side, they have changed performance standards 
continuously. The answer is just speed up processing the claims 
faster even though they are very complicated to process.
    Mr. Lamb. Right. And, in fact, there are several examples 
detailed in your testimony where people have been fired after 
making whistleblower complaints, right?
    Mr. Cox. Yes, sir, that happened in Phoenix and other 
places that our union had to come to the rescue.
    Mr. Lamb. And you yourself were a registered nurse at the 
VA for much of your career?
    Mr. Cox. Twenty-three years, sir.
    Mr. Lamb. And during that time, did you have experience 
seeing other nurses or other employees in any job going through 
a performance improvement program?
    Mr. Cox. Yes, sir, and many of them successfully completed 
it. I would say a high number of them successfully completed it 
because there was additional training. Understanding the VA is 
a complex system, but it is still the best health care anyone 
can get in this country, and thank God that veterans are 
getting it.
    Mr. Lamb. Now when you hear about a situation like ours in 
Pittsburgh where 46 lower-level employees have suffered adverse 
actions in the last year, and we have 300 vacancies, from your 
time at the VA do you think that increases the day-to-day 
burden on the employees who are left, the ones who haven't been 
fired?
    Mr. Cox. It certainly does, and it also jeopardizes the 
veterans, particularly if they are housekeeping aids. While 
people think of that as a very menial task maybe, they are 
responsible for the cleaning and sanitizing of a hospital for 
infection control, it is one of the most important jobs in any 
medical center.
    Mr. Lamb. Are you in touch with some of the lower-level VA 
members who are left? And it is not the right term lower-level, 
but people who are filling in the RN, nursing assistant, food 
workers, cleaners. Are you in touch with them on a regular 
basis?
    Mr. Cox. Yes, sir, I am.
    The Chairman. How are they reacting to seeing in the last 
six months such a large number of people be fired at their 
level and such a small number of people be fired at the manager 
level?
    Mr. Cox. There is fear. There is a lot of fear and there is 
a feeling that floggings will continue until morale improves 
and everything is all better. And I think we all know that that 
is not the way that you get the best performance.
    Mr. Lamb. Do you think that helps them do their job to take 
care of the veterans any better?
    Mr. Cox. I think, no. I think it creates fear and when you 
have fear in an organization you never get the best 
performance, sir.
    Mr. Lamb. Yeah. Do you think it helps them do their job any 
better for there to be fewer employees around on a day--for 
there to be 46 fewer employees in Pittsburgh on top of the 300 
vacancies?
    Mr. Cox. No, sir, there--and, obviously, there needs to be 
sufficient employees to get the proper work done, because, at 
the end of the day, without that being accomplished, the 
veteran suffers.
    Mr. Lamb. Thank you. Mr. Chairman, I yield the remainder of 
my time.
    The Chairman. I thank the gentleman for yielding, and being 
here with us until the end, Mr. Lamb, thank you for hanging in 
there. Thank you, Mr. Cox, once again for being here. And being 
no further questions--
    Mr. Cox. Thank you, sir.
    The Chairman [continued].--the second panel is dismissed. I 
ask unanimous consent that all Members have 5 legislative days 
in which to revise and extend their remarks and include 
extraneous material. Without objection, so ordered.
    Mr. Takano, any closing comments?
    Mr. Takano. Just very briefly. I am pleased to see that 
there are many in the majority who share the concerns of the 
minority about there being adequate whistleblower protection 
and how the OAWP is fulfilling, or not fulfilling, its role. I 
think people on both sides of that all are very gravely 
concerned about this.
    I want to take note, a curious note, of the fact that I did 
ask Mr. Cox a question about how well the VA is making good on 
its professed statement that they are listening to employees. I 
note that they departed quite swiftly before Mr. Cox's 
testimony, and is that an indication of how they are listening 
to union officials and union members, I cannot see that their 
statements are very credible.
    I am troubled by the disappearance of performance 
improvement plans among rank and file employees at the VA, and 
the general--I can see how there could be very credible claims 
of a cultural fear within this organization. Fear that is 
pervasive, fear that issues from seeing large numbers of your 
fellow employees being fired without due process, without being 
able to tell your side of the story, does create a condition of 
fear, and does depress morale. And I am very, very troubled by 
how I am seeing the implementation of this Accountability Act 
go forward.
    Let me just say that there were claims, that the one place 
of refuge that the acting secretary took was to say, well, we 
are firing about the same number of people. That is not really 
a great claim to stand on because this law was intended to 
improve our building. We are talking about firings, we are 
talking about people who were moved and dismissed, we are not 
talking about just turnover in difficult jobs.
    And we are talking about veterans here. We are talking 
about a workforce that has been the most impacted. These are 
people who fought for our country, and I think we can do 
better. And I am, you know, I am just amazed at the 
implementation of this law, I had hoped it would be better. I 
am still cautiously optimistic with the right values of the top 
we can get it right, but I question whether that is occurring 
now.
    Thank you, Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for yielding. And just 
to finish up, I think it was a very good hearing today. It is 
one year of the Accountability and Whistleblower Protection 
Act. There obviously is a lot of work to be done to make sure 
the whistleblowers are protected, feel comfortable in coming 
out, and to Mr. Lamb's.
    I have been an employer, I was for over 30 years in a 
private medical practice. If you are short of personnel, you 
don't fire adequately performing employees, you reward those 
people to stay there. So I would say, if I were a manager at 
Pittsburgh, and I was having to get rid of somebody, and I was 
already short of personnel, they would have to do something 
pretty egregious for me to get rid of them. You think about 
that, if you are already short of people.
    I know that the VA is having an issue with hiring people, 
just like businesses across the country. I think we have a 
labor shortage in this country right now. And to compete for 
quality talent, VA's got to be a place that people want to 
work.
    And for the record, if we get all hung up in numbers and 
all that, but I, while this discussion was going on, had a 
chance to look at the pre-June 1st, 2016 to June 22nd, 2017, 
before the Whistleblower Protection Act and then after the 
Whistleblower Protection Act, and in the GS 1 through 6 the 
percentage of people terminated--and you have to look at it in 
percentage because the number of employees the VA has had has 
gone way up--is actually less.
    In the middle, the 7 through 10, the percent, as Mr. Cox 
had suggested, some of those people needed to be terminated, it 
did go up. And the GS 11 through 15 the percent went up. And 
the only percent that went down, and I think this is a 
reasonable thing to look at, are the SCS and the Title 38s. So 
here are the facts right here.
    I really appreciate everyone being here. I think there is a 
lot of work to be done. This Committee is committed in a 
bipartisan basis to keep an eye on the VA, and I appreciate 
everyone's attendance today, and being here. Hearing no other 
comments, meeting is adjourned.

    [Whereupon, at 12:53 p.m., the Committee was adjourned.]



                            A P P E N D I X

                              ----------                              

                  Prepared Statement of Peter O'Rourke
    Chairman Roe, Ranking Member Walz, distinguished Members of the 
Committee; thank you for the opportunity to testify today in support of 
the Department of Veterans Affairs (VA) implementation of the 
Accountability and Whistleblower Protection Act: one year later. Let me 
also thank the Committee, and other Members of Congress, for your on-
going support of holding VA employees accountable for their performance 
and misconduct. Without that support, VA would not have been able to 
move forward in providing greater support for our Veterans. I am 
accompanied today by Mr. Kirk Nicholas, Executive Director for the 
Office of Accountability and Whistleblower Protection and Nathan 
Maenle, Principal Deputy Assistant Secretary for the Office of Human 
Resources and Administration.
    The Office of Accountability and Whistleblower Protection (OAWP or 
the Office) represents the culmination of many years of effort to 
improve accountability within the Department of Veterans Affairs (VA) 
and to establish a new capability to centrally receive and address 
whistleblower disclosures. Congress built on and strengthened the 
capabilities developed internally by the Department creating OAWP 
through the VA Accountability and Whistleblower Protection Act (the 
Act), Public Law 115-41 in 2017.
    OAWP absorbed and expanded on the work formerly performed by the 
Office of Accountability Review and the Central Whistleblower Office to 
establish an intake, investigation, and accountability vehicle to 
support the VA Secretary's efforts to better fulfill the Department's 
mandate to ``.care for [those] who have borne the battle.''.
    OAWP serves to improve the performance and accountability of VA 
Senior Executives and employees through timely, and unbiased 
investigation of allegations of misconduct involving VA senior 
executives. OAWP also investigates allegations of whistleblower 
retaliation committed by supervisory employees. When these allegations 
are found to be factually true, OAWP provides a recommendation for an 
accountability action which could be for the removal, demotion, or 
suspension of the individual based on poor performance and/or 
misconduct.
    OAWP is dedicated and empowered to provide transparency and build 
public trust and confidence throughout the entire VA system. The Office 
is committed to preserving the cultural integrity of the Department 
conducting balanced, fair, and efficient investigations of VA 
whistleblower disclosures, proposing timely remedial resolutions and 
providing responsive recommendations. The organization, actions, and 
statistics of this first year of OAWP are contained in both the June 
30, 2018 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 ( 2018 Annual Report) as follows.

Triage Division Statistics

    Triage Division is the first point of contact for whistleblower 
disclosures and allegations of senior executive misconduct. The Triage 
staff assesses the information submitted and, as needed, conducts 
initial development of the submission with the disclosing party. Triage 
maintains oversight of all matters submitted to OAWP and ensures all 
issues are brought to resolution.
    From June 23, 2017 through June 1, 2018, Triage Division has 
received nearly 2,000 disclosures. The specific types and quantities 
are displayed on the following charts.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The above chart displays the type of disclosures received by month 
from June 2017 through May 2018.

Investigations Division Statistics

    Investigations Division is the most visible division in OAWP, and 
it interacts with witnesses and Persons of Interest (POI) to resolve 
cases. Investigators conduct inquiries to gather evidence and testimony 
to resolve allegations of senior executive misconduct or whistleblower 
retaliation. Depending on the specifics of a case, inquiries may be 
conducted on-site or virtually.
    On June 23, 2017, Investigations Division had a legacy workload 
from the Office of Accountability Review of 116 investigations 
involving 216 POIs.
    From June 23, 2017 through June 1, 2018, Investigations Division:

      Completed 128 investigations involving 236 POIs;
      Received 261 cases involving 482 Senior Leaders;
      Had 125 pending or ongoing investigations, involving 264 
POIs.

Advisory and Analysis Division Statistics

    Advisory and Analysis Division is the principal accountability arm 
of OAWP. The staff analyzes investigative results and makes 
recommendations to VA leadership regarding appropriate steps to resolve 
matters. These could include performance management, disciplinary 
actions, or recommending no action.
    From June 23, 2017 through June 1, 2018, Advisory and Analysis 
Division:

      Received 39 cases directly from Triage as fully developed 
matters (e.g. MSPB decisions or OSC findings) involving 65 POIs;
      Completed 182 cases, including 130 cases resulting from 
OAWP investigations;
      Recommended disciplinary or adverse actions in 54 cases 
involving 58 unique POIs;
      Had 49 potential disciplinary or adverse actions.

    The Report itself conveys the first year's achievements and actions 
of the Office, but this effort did not come easily. The early 
leadership of OAWP worked diligently to resolve concerns, establish the 
organization, as well as continuing to triage, investigate and assess 
ongoing and emerging investigations. The necessity of implementation 
could not wait for culture change. Instead, the actions of the Office 
became the fulcrum for change. The Office began to gain credibility by 
its actions as 2017 closed with outreach programs being instituted for 
VA Senior Leader engagements and whistleblower intervention. These 
events began to help dispel the cloud of confusion hovering over the 
concept ``accountability'' as well as demystify the response required 
to address misconduct and retaliation at all levels. With each session, 
OAWP learned more of what was missing in the implementation, and also 
made progress in instructing VA Senior Leaders and employees on what 
accountability means and how to address the issues.
    There have been a number of questions related to the implementation 
of the Act. For instance, there are questions regarding whether the VA 
is targeting lower level staff versus VA Senior Leaders. As you can see 
below and in the 2018 Annual Report, the numbers for 2014-2018 are 
similar in terms of misconduct actions targeting all levels of the 
organization. Only minor changes in disciplinary actions occurred after 
the implementation of OAWP.

Summary of Statistics from 2018 Annual Report

    The 2018 Annual Report contains a number of statistics regarding 
the disciplinary and adverse actions taken involving VA employees since 
2014. A brief summary of the information contained in that Report 
demonstrates that lower level employees are not being 
disproportionately impacted by the Accountability Act. The percentage 
of disciplinary and adverse actions issued to general workforce 
employees both before and after enactment of the Accountability Act 
remains consistent.
    Prior to the Act, positions in the general workforce (Wage Grade 
and Wage Leader 1-15; and GS 1-10) were disciplined as follows \1\:
---------------------------------------------------------------------------
    \1\ The percentages contained here are approximate due to rounding.

      From 2015 - 2016, 69% of the disciplinary actions 
(admonishment, reprimand, suspension less than 15 days) issued by the 
VA were to employees in the general workforce.
      From 2015 - 2016, 72% of the adverse actions (suspension 
of 15 days or more, demotion, removal) issued by the VA were to 
employees in the general workforce.
      From 2016 - 2017, 71% of the disciplinary actions 
(admonishment, reprimand, suspension less than 15 days) issued by the 
VA were to employees in the general workforce.
      From 2016 - 2017, 72% of the adverse actions (suspension 
of 15 days or more, demotion, removal) issued by the VA were to 
employees in the general workforce.

    After enactment of the Act, positions in the general workforce 
(Wage Grade and Wage Leader 1-15; and GS 1-10) were disciplined as 
follows:

      From 2017 - 2018, 69% of the disciplinary actions 
(admonishment, reprimand, suspension less than 15 days) issued by the 
VA were to employees in the general workforce.
      From 2017 - 2018, 71% of the adverse actions (suspension 
of 15 days or more, demotion, removal) issued by the VA were to 
employees in the general workforce.

Completing the Stand Up

    Much work has been done to develop the transactional flow from 
disclosure to disciplinary recommendations. The process continues to be 
worked until it can predict how much work can be handled by the current 
number of individuals assigned to the activity, how long the work takes 
to complete, and how to begin to measure the quality of the work. To 
adequately predict the outcomes the Office needs good processes that 
produce reliable data. When these have stabilized OAWP will begin the 
development of the support policies and procedures for VA wide 
distribution. Having a full workforce will allow for better 
measurement, better identification of training needs and designing a 
quality of work life that can survive long term.
    An additional benefit of the process mapping is that it helped 
identify data capture and management needs. The first benefit of the 
process mapping allowed the identification of cycle time through the 
process. The process was also able to identify the amount of work that 
the process can perform, and a quality metric that can be measured of 
the outputs. This provides the foundation for the selection of a case 
management system that will enable the process to work and help with 
our transparency efforts. Currently, an online update is published each 
month on disclosures, as well as the disciplinary actions that have 
been taken agency wide. OAWP has shared those files since mid-2017, and 
continues to refine the data capture and reporting VA wide and to 
Congress. The end state is that OAWP is now tracking actions via a 
``heat map'' that permits a view of potential ``hot beds'' of 
misconduct to target rather than waiting for a disclosure or 
allegation. The goal is to prevent misconduct and to improve 
performance in various programs and organizations that sustain the 
delivery of work by the VA to the Veteran. The desired end state is to 
be ``proactive'' instead of ``reactive.''
    One lesson learned by OAWP is that it is hard for whistleblowers to 
reintegrate with their offices. OAWP hired Mr. Brandon Coleman, a 
former VA whistleblower, to help us understand what happens when an 
individual does decide to go public. The Office has developed and 
implemented a ``whistleblower reintegration program,'' which also links 
with the VA's Employee Assistance Program to help individuals work 
through the emotional crises that can occur following disclosure. The 
Office has had several successful events to date and is expanding the 
program to engage the workforce during the first stages of the 
disclosure to help guide them as events are triaged, investigated and 
closed. This has been incredibly time consuming so OAWP has added two 
members to that team. OAWP believes that it can help VA Senior Leaders 
and employees eventually see that finding defects and fixing them is a 
cultural issue, one that will help reinvigorate loyalty and trust up 
and down the rank and file. It is one effort of many, and probably the 
most critical in helping to change the culture in the VA.
    A few other areas being strengthened are the re-designation of our 
investigations capabilities from Human Resources Specialist positions 
(201) to General Investigator positions (1810). Additional training has 
been added to the investigators' list: management inquiry training from 
the Immigration and Customs Enforcement (ICE) at the Department of 
Homeland Security; Human Audit and Digital Forensics from commercial 
events; and internal affairs from the Federal Law Enforcement Training 
Center (FLETC). Finally, OAWP is in the last stages of selecting a case 
management system that fits within the VA's Business Architecture.
    Lastly, I invite you to read the OAWP 2018 Annual Report in its 
entirety. The product of this nascent organization, it will stimulate 
questions on how to better adapt this implementation across the Federal 
sector. Very few of the individuals hired over the last year had any 
experience with the aftermath of a major implementation, but they are 
certainly and rightfully proud of their hard work and selfless 
dedication in bringing OAWP to life while they completed critical 
activities within the Accountability Process.

Closing

    The implementation of this Act honors our Nation's commitment to 
Veterans by better enabling VA to provide the high-quality care and 
benefits our Veterans have earned. It supports the Department's efforts 
to bring value and a source of pride for VA employees who are dedicated 
in servicing our Veterans. Mr. Chairman and Members of the Committee, 
this concludes my statement. Thank you for the opportunity to testify 
before the Committee today to discuss VA's implementation of the 
Accountability and Whistleblower Protection Act. I would be happy to 
respond to any questions you may have.

                                 
                Prepared Statement of J. David Cox, Sr.
    Chairman Roe, Ranking Member Walz and Members of the Committee:

    Thank you for the opportunity to present the views of the American 
Federation of Government Employees, AFL-CIO (AFGE) and its National VA 
Council (NVAC) regarding the implementation of the Department of 
Veterans Affairs (VA) Accountability and Whistleblower Protection Act 
of 2017 (Accountability Act). AFGE and NVAC represent over 250,000 
front line employees who honor our Nation's veterans every day by 
providing exemplary services at VA medical centers, benefits offices, 
vet centers and other VA entities. It should be noted that AFGE and 
NVAC do not represent any VA management employees, the workforce 
segment targeted by bills leading up to the Accountability Act.
    The Accountability Act has proven to be one of the most misguided 
and counterproductive VA laws ever enacted. It has demoralized and 
harmed its dedicated workforce, including a disproportionately large 
share of the 115,000 veterans who have the honor of taking care of 
other veterans as proud members of the VA workforce. It has deprived 
veterans who depend on the VA for health care and benefits of the 
services of employees with extensive training and experience who have 
been fired under the Act's new authorities without a fair chance to 
improve their performance or defend their jobs, as well as others who 
have left the VA or chose not to apply because of its uniquely harsh 
firing laws and hostile workplace. The Act has also squandered taxpayer 
dollars through unnecessary job turnover and litigation by empowering 
managers to go straight to the nuclear option of removal on the first 
alleged offense.

Who is getting fired under the Accountability Act?

    Here's what ``accountability'' looks like under the new firing law. 
The VA has tried to hide the true harm that Act has caused by 
publishing limited firing data and denying information requests from 
Members of Congress and AFGE. Notwithstanding the VA's intentional lack 
of transparency, its own published data still illustrates the Act's 
severe unintended consequences and its failure to hold management 
accountable for mismanagement and misconduct.
    For example, of the 2,742 VA employees fired in 2018, only 18 were 
supervisors (less than 1 percent). Housekeeping aides were the largest 
number fired, followed by nursing assistants, registered nurses, food 
service workers and medical support assistants. In contrast, 
supervisors (across the entire Department) ranked in 19th place.
    AFGE and NVAC attorneys discovered the perverse impact of this 
firing law soon after enactment, through individual cases involving 
positions historically held by veterans, including large numbers of 
service-connected disabled veterans. These include housekeeping aides, 
cemetery caretakers, police officers and Veterans Benefits 
Administration (VBA) veterans service representatives, claims examiners 
and claims assistants. Other cases highlighted the Act's greater impact 
on low wage VA employees generally, such as food service workers, 
nursing assistants and scheduling clerks.
    The first set of VA published data confirmed what we were seeing at 
the facility level, i.e. that extremely few managers were being held 
accountable under a law that was justified largely as a management 
accountability tool.
    After we learned that the VA's published data masked the 
disproportionate effect of this harsh law on the veterans and other 
vulnerable segments of the VA workforce, we filed a Freedom on 
Information request for data on veteran status, age, gender and race 
(Attachment A). The VA has not responded with the data requested for 
nine months, forcing us to file an appeal. Similarly, Members of 
Congress have not gotten a response to their data requests (Attachment 
B).
    Despite the limited published data, the Act's disproportionately 
large impact on VA's low wage workforce and veterans is undeniable. 
Currently, the Veterans Health Administration (VHA) has a national job 
posting for housekeeping aides at 13 medical centers. All the openings 
are restricted to preference eligible veterans and all pay less than 
$35,000 annually. The salaries for VHA nursing assistant positions 
currently posted start at $30,449. All current food service national 
postings list hourly wages below $13 an hour.
    The Act's adverse impact on the VA health care system is also 
evident from the large number of removals of employees in nursing 
positions. VA Inspector General (IG) Michael J. Missal testified before 
this Committee last month that the IG has consistently included 
registered nurses and other nursing occupations in its top five 
determinations of VHA occupational staffing shortages.

The VA cannot fire its way to success

    This destructive law was enacted despite warnings from experts that 
mismanagement, not job protections for front line employees, was 
undermining the VA's capacity to deliver services to veterans. Health 
care experts repeatedly presented evidence that the VA health care 
system, the primary target of proponents of this firing law, 
outperforms the private sector.
    First hand statements by VA scheduling personnel confirmed that 
wait list gaming was caused by severe shortages of providers and 
distorted management incentives, not incompetent or heartless employees 
who were too easy to fire.
    Surveys by veterans' groups and other entities indicated that the 
VA remains a leader in customer satisfaction and that veterans using 
the VA health care system overwhelmingly prefer the VA's own providers 
to private providers and want the VA to increase its own staff.
    Wait list gaming and its causes did not first make headlines in 
2014. When post-9/11 veterans started returning home with complex 
medical needs over 15 years ago, AFGE and veterans' groups cautioned 
Congress that chronic short staffing was causing wait list manipulation 
and severe access problems at VA medical centers.
    Similarly, every year, the Independent Budget recommends additional 
staff to reduce claims backlogs at the Veterans Benefits Administration 
(VBA). The VA's 2018 firing data reveals that four essential claims 
processor positions - veterans service representative, rating 
specialist, claims examiner and claims assistant - were among the 20 
largest groups of fired employees in 2018.
    Nonetheless, assaults on Federal employee due process rights and 
collective bargaining rights have remained the vehicle of choice for 
those intent on destroying the civil service and starving the VA into 
further privatization and reduced health care services and benefits. 
The Accountability Act was the culmination of three years of VA 
employee bashing and misrepresentation about the quality and access of 
care provided by the VA as compared to the private sector.

Impact of the new management authorities provided by the Accountability 
    Act

    The new authorities caused severe cuts in the due process and 
existing collective bargaining rights of all VA frontline employees, as 
well as supervisors. These changes made it easier for managers to fire 
employees for any reason, good or bad and incentivized them to rush to 
fire without providing employees with an opportunity to improve.
    The Act made changes in three major areas: the standard of evidence 
that the agency must meet to prove its case; shorter timeframes for 
employees to respond to the agency's proposal to remove or discipline; 
and elimination of the right of the Merit System Protection Board to 
impose a lower penalty when the evidence does not support removal.
    Lower evidentiary standard: The Act requires the Merit System 
Protection Board (MSPB) administrative judges (AJ) and the Board to 
apply the substantial evidence standard to determine if the agency has 
proved its case instead of the higher, more widely applied 
preponderance of the evidence standard. The substantial evidence 
standard only requires the agency to produce some evidence (or in the 
words of the U.S. Supreme Court, a ``mere scintilla'' of the evidence) 
to win, even if more of the evidence favors the employee. Before this 
bill became law, the VA had to meet the preponderance standard that 
requires that the majority of evidence had to weigh against the 
employee. When managers know that the agency will easily prevail before 
the Merit System Protection Board, they are encouraged to skip over 
reprimands, suspensions and demotions and instead, propose removal in 
response to a single alleged offense. (This change applies only to 
Title 5 and Hybrid Title 38 employees. It does not apply to physicians, 
RNs and other Full Title 38 health care personnel as they do not appeal 
adverse actions to the MSPB).
    Elimination of the MSPB's authority to lower the penalty sought by 
the agency: Civil service case law has historically required that the 
MSPB AJs and the Board adjust the penalty to reflect that severity of 
the underlying misconduct or performance deficiencies. If the Board or 
AJ concluded that the evidence did not support removal, he or she could 
apply a demotion, suspension or other lesser penalty instead of being 
forced to either carry out a removal or dismiss the entire case. The 
Act has been interpreted to eliminate the ability of the employee to 
argue that the penalty is too harsh in light of the seriousness of the 
charge or his or her prior good record. (This change also applies only 
to Title 5 and Hybrid Title 38 employees.)
    Additionally, for all employees including Full Title 38 employees, 
the Act significantly reduced the amount of time that an employee 
facing a proposed removal or other major adverse action had to prepare 
a response to the agency and file an appeal. Previously, employees had 
14 calendar days to respond to the agency's notice of proposed removal. 
Now, they must respond within 7 business days. The timeframe for 
appealing a final agency decision to the MSPB (in the case of Title 5 
and Hybrid Title 38 employees) has been reduced from 30 calendar days 
to 10 business days. Similarly, for Full Title 38 health care 
personnel, the timeframe for appealing a removal or other major adverse 
action involving professional conduct or competence to the agency 
Disciplinary Appeals Board has been reduced from 30 calendar days to 7 
business days.
    Inadequate statutory whistleblower protections: One of the 
strongest arguments made by proponents of this law to reduce rights was 
that it would provide stronger protections for ``deserving'' employees 
who are agency whistleblowers. However, the Act has a flawed, 
inequitable and confusing process for protecting whistleblowers from 
retaliatory firings. It is important to note that none of Full Title 38 
health care personnel listed above are protected by the requirement in 
the new law that the Office of Special Counsel (OSC) approve the 
removal of whistleblowers proposed by the agency. The VA can fire these 
clinicians unilaterally even if they have strong whistleblower claims, 
except in extremely limited cases.
    This gap in the law has led to inequities and confusion. Recently, 
management proposed to remove an RN who had registered as a 
whistleblower with the Office of Special Counsel (OSC). VA management 
initially informed her (incorrectly) that OSC approval was required; 
then management proceeded to remove her because she did not have a 
right to review by the OSC to save her job.
    This gap in the Accountability Act will result in significant 
inequities. For example, if a Hybrid Title 38 psychologist (with both 
Title 5 and Title 38 rights) files with OSC as a whistleblower, he or 
she cannot be fired unless OSC approves the action. In contrast, a 
psychiatrist (who is covered only by Title 38) providing similar mental 
health treatment in the same clinic who also reports deficiencies in 
mental health services who files for whistleblower status will receive 
no OSC review prior to removal.
    Effect of the Accountability Act on Performance Improvement Plans: 
Prior to enactment of this law, the VA routinely offered employees with 
time limited opportunities to improve their performance through 
Performance Improvement Plans (PIPs) prior to removing them for poor 
performance under Chapter 43 of Title 5. (Misconduct actions are 
covered by Chapter 75 of Title 5).
    Since enactment, the Agency has incorrectly interpreted the 
Accountability Act as removing the requirement (found in Federal 
statutes and the AFGE NVAC Master Agreement at Article 27) to give 
employees an opportunity to improve before they can be subject to a 
performance-based action under Chapter 43. While the Act does state 
that the procedures of Chapter 43 do not apply to an action under the 
Act, the reasonable interpretation of this provision is that the Act 
shortened the timelines in Chapter 43 performance actions similar to 
Chapter 75 misconduct actions but did not eliminate the requirement to 
provide employees with an opportunity to improve.
    We recently grieved the elimination of PIPs in a VBA case. The 
arbitration hearing was held on April 26, 2018. Briefing was completed 
on June 18, 2018 and we are currently awaiting a decision from the 
arbitrator.

CASE EXAMPLES

    AFGE and NVAC have handled and/or identified numerous examples of 
the harsh and counterproductive effects of the Accountability Act.

    Whistleblower cases

      An employee out of the Overton Brooks VA Medical Center 
(Shreveport) reported a management official for improperly accessing 
her personnel medical records. A few weeks after management learned of 
the employee's whistleblowing activity, she was given a proposed 
removal for conduct that occurred four months earlier. The conduct in 
question involved a dispute between two union officers about union 
matters. She had received no prior discipline. The employee has filed a 
whistleblower retaliation complaint with OSC, which is currently 
pending.
      A local union officer in Pittsburgh was featured in an 
article about the Accountability Act where he made disclosures about 
Management's abuse of authority. Management immediately expressed their 
dissatisfaction with his statements. On June 13, 2018, the VA proposed 
his removal under the Accountability Act. He has filed a whistleblower 
retaliation complaint with OSC, which is currently pending.

    Disabled veteran seeking accommodation:

      A disabled veteran with a chronic condition requested a 
reasonable accommodation for telework to accommodate his condition. The 
accommodation would have obviated the alleged conduct. The Agency never 
responded to his request, then issued a proposed removal.

    VBA Performance Actions:

    AFGE and NVAC have serious concerns about the validity of VBA 
performance standards and whether employees know how these numbers are 
calculated or understand how to adjust their work flow in response. It 
is not sufficient to tell an employee that he or she is not ``meeting 
the standards''; the employee also needs to know what is needed to meet 
them - which is exactly what a PIP would have provided.
    Other VBA cases illustrate management's willingness to remove long 
term employees with valuable claims processing experience on the first 
offense for failure to meet questionable performance periods during 
brief evaluation periods.

      An employee with modest performance problems was denied a 
PIP prior to dismissal to attempt improvement. Instead, the supervisor 
repeatedly told the employee that he was not meeting the standards. The 
supervisor did not discuss why the employee was not meeting the 
standards.
      Another employee who had modest performance issues was 
proposed for removal after 9 years with the VA. The VA held the 
employee accountable for performance standards prior to the employee 
receiving them. The notice stated the employee failed to meet standards 
over a 6-month period when in fact he only received the standards 4 
months in that time. Despite the VA's claims that the employee's 
problems were severe, it kept the employee on board for an additional 3 
months yet refused to offer him a PIP or any other assistance prior to 
firing him.
      A career VA employee with approximately 28 years worked 
at the Philadelphia VBA and held various positions in the Insurance 
Center before being promoted to the Pension Management Center. She was 
not performing regular VSR work because she was moved around within the 
PMC by multiple assignments for several years. When she was moved back 
to her regular VSR position, she was unfamiliar with the new PMC rules 
and regulations. She asked for retraining but was told by PMC 
Management that she was ``fully trained'' and they would not provide 
her with any additional training. She was proposed for removal under 
the new law for failing to meet her performance standards.
      After working for more than 12 years for the VA, a 
Philadelphia VBA employee with two advanced degrees who teaches part 
time at a local community college was forced into retirement under the 
new law. When the performance standards underwent drastic changes, he 
repeatedly asked for help, but management refused to provide them. He 
was forced into a lower graded position. Instead of risking a 
termination or further downgrade, he chose to retire early.

VHA Performance Action: (Walls v. VA, 118 LRP 10484):

      This VHA claims assistant was fired for poor performance 
as a document scanner. The agency used flawed data to makes its case. 
The MSPB overturned the removal but the disruption of the employee's 
livelihood had already occurred. This case also demonstrates the 
benefits of a PIP; it informed the employee of exactly what she was 
doing wrong and ways to improve, but because of its interpretation of 
the Act, the agency cut her PIP short and failed to give her the 
complete 90 days to improve.

HOW THE OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION WORKS

    The AFGE NVAC legal team has had mixed experiences working with the 
Office of Accountability and Whistleblower Protection (OAWP). OWAP 
appears to have met some of its requirements including establishing and 
staffing its office, creating a form for disclosures and conducting 
investigations. However, there are some significant items that have not 
been implemented.
    For example, the Accountability Act requires that the OAWP include 
as a critical element in each supervisor's performance plan how he or 
she deals with whistleblowers. The VA has yet to do this. When 
questioned about this, they say they are working on a handbook to 
accomplish this but over a year has passed with no action.
    In addition, the Act requires that OAWP have a toll-free phone 
number for anonymous whistleblower complaints. The VA does have a toll-
free number (855-4AWONOW or 855-429-6669), but it is difficult to find 
because it is not posted on their site (va.gov/accountability). When 
asked about this, the VA stated that the number is available internally 
and that the intent was that they only receive disclosures from 
employees.
    A third concern relates to the VA's policy on reports of 
wrongdoing. Wouldn't the VA want reports of wrongdoing from other 
groups with knowledge of the activity, such as the Union, contractors, 
or veterans service organizations? In fact, nothing in the Act requires 
that disclosures come exclusively from VA employees. Yet, the OAWP site 
describes its own disclosure form as follows: ``This form is only for 
use by VA Employees or Applicants for Employment.''
    In addition, it appears that OAWP has overstepped its bounds by 
ordering investigations of matters filed with OSC. As previously noted, 
under Section 714(e) of the Act, if an employee seeks corrective action 
from OSC for a whistleblower retaliation complaint, the VA cannot 
exercise its new authorities to remove the employee. What is supposed 
to happen in order to stop the action is that OSC reaches out to its 
contact in OAWP, who then reaches out to the facility. Then OSC does 
its own investigations of whistleblower retaliation. While OAWP has 
been taking the necessary steps to proactively stop the actions, they 
have also been taking the information from OSC and doing their own 
investigations, and in some cases, retaliating again by subjecting the 
whistleblower to an additional mandatory investigation.
    Our legal team is also concerned about the relationship between 
OAWP and the General Counsel. The Act states that OAWP is not an 
element of the General Counsel and the Assistant Secretary may not 
report to the General Counsel. In practice, these two offices work 
hand-in-hand. If the intention was that there be some semblance of 
independence, that has clearly not been given effect.

Other concerns about OAWP:

      The Accountability Act requires that OAWP have an 
internet website to receive anonymous whistleblower disclosures. The VA 
has yet to do this. They have an email address 
[email protected] which is not anonymous.
      The Accountability Act requires the VA to provide 
training, in person (to the greatest extent practicable) regarding what 
whistleblowing is, how to make disclosures, and an explanation that 
they will not be reprised against. No such training has occurred.
      The Accountability Act requires the OAWP to take actions 
against senior leaders under Section 713. Based on their own ``CY 2018 
VA Accountability Report Details,'' https://www.va.gov/ accountability/ 
Accountability--Report--062618--1.pdf in the year since the Act was 
passed, they have done so in one case. This is out of the 1,044 
disclosures and whistleblower retaliation complaints the office 
received. (It is unclear if this report includes referrals from OSC 
(https://www.va.gov/ accountability/ Whistleblower-Disclosures-
Summary--070518--1.pdf)
      OAWP is required to have an Assistant Secretary; it 
currently has an Executive Director. VA's reason for this is that 
Congress has specified the number of Assistant Secretaries they could 
have. When they passed the Accountability Act, they did not 
simultaneously increase the VA's allotment. Assistant Secretaries 
report directly to the Secretary, while Executive Directors must report 
to a Management official along the chain below the Secretary.

CONCLUSION

    AFGE urges lawmakers to take immediate steps to curb the 
devastating impact of the Accountability Act and restore the essential 
VA employee rights it stripped away by supporting H.R. 6101, the VA 
Personnel Equity Act, a bipartisan bill that will restore the higher 
standard of evidence, longer timeframes and authority to provide 
appropriate penalties that will ensure fairness and true 
accountability.
    We also urge lawmakers to enact legislation to mandate greater 
transparency of VA firing data. Similar to the VA Mission Act, which 
requires greater transparency of VA hiring data, it seems very 
reasonable to impose a legislative mandate to publish full firing data. 
The VA's refusal to respond properly to multiple requests for firing 
data confirms that this additional legislative authority is needed. The 
Committee should also insist that the VA provide it with the data on 
veterans and other fired groups that has been requested to date.
    Finally, any additional whistleblower protections afforded to VA 
employees should also apply to the entire workforce and not exclude VA 
Full Title 38 health care personnel.
    Thank you.

                                 
                       Statements For The Record

                             Daniel Martin
    Chairman Roe, Ranking Member Walz, and the distinguished members of 
the Committee:

    I would like to respectfully submit for the Committee's 
consideration this written statement detailing the whistleblower 
retaliation I have been subjected to, going on 495 days and counting, 
for reporting & cooperating with an OIG investigation into improper 
business practices & personal conflicts of interest by senior 
management officials within the Department of Veterans Affairs.
    As a brief introduction, my name is Daniel Martin. I am a service-
connected Navy Veteran and I am currently, in name only, the Chief 
Engineer for the Northern Indiana VA (NIHCS). I have had the honor of 
serving my fellow Veterans in VA Medical Centers across Indiana, 
Illinois, and Iowa as either the Chief Engineer, Project Section Chief, 
or the facility Electrical Engineer. Prior to joining the VA, I was 
employed in a similar capacity with the Indiana National Guard. I hold 
a Bachelor of Science degree in Electrical Engineering & Minor in 
Mathematics from Purdue University, a Master of Business Administration 
from Indiana Wesleyan, and certifications as a Senior Level - Federal 
Acquisition Certification in Program and Project Management (FAC-P/PM), 
a Master Electrician, and a Contracting Officer's Representative Level 
III (COR III). My whistleblower retaliation story has recently been 
reported by USA Today \1\, NPR's Here & Now \2\, and SOFREP \3\News 
\4\.
---------------------------------------------------------------------------
    \1\ https://www.usatoday.com/story /news/ politics/ 2018 /01/17/ 
trumps-new-veterans-affairs-office-moves-help-whistleblowers- draw-
early-praise/1038915001/
    \2\ http://www.wbur.org/hereandnow /2018/04/27/ va-employee-
contract- fraud-whistleblower-retaliation
    \3\ https://sofrep.com/103804/ va-employee-is-strong-armed-into-
silence -after-voicing-concerns/
    \4\ https://sofrep.com/100559/ va-whistleblowers-look-inside/
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    My path to reporting suspected wrongdoing in the VA started in 
December 2015 when I first had concerns regarding an NLP Aqua water 
filtration system \5\ which was procured prior to my arrival at NIHCS 
and was scheduled to be installed at VA facilities in Fort Wayne IN and 
Marion IN. During my review of the contract and the proposed device 
submittals, I noted several red flags between the alleged capabilities 
of the NLP Aqua product and industry best practices. Because of this, 
in coordination with the Contracting Officer, we placed a Stop Work 
Order on the contract in hopes of cancelling the contract award 
entirely. Despite my concerns, I was ordered by my chain of command to 
remove the Stop Work Order and to personally oversee the installation 
of this suspect product. While I complied with what I felt were lawful 
orders at the time, I continued to investigate how and why this 
contract was awarded in the first place.
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    \5\ http://flintwaterstudy.org/2017/05/ ruffalos-water-defense-
misleads-flint- residents-supports-over-priced- junk-science-water-
conditioners/
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    In April 2016, after reviewing and re-reviewing the procurement 
life-cycle of the NLP Aqua product, I contacted the VA's OIG because I 
felt there were substantial irregularities in the actions and decisions 
by my supervisors and NIHCS senior management in the contract award. 
Specifically, I felt the entire procurement was improper and did not 
comply with the Federal Acquisition Regulations (FAR), the Veterans 
Affairs Acquisition Regulation (VAAR), and industry best practices. 
Shortly after my disclosure to the OIG, I was interviewed by an OIG 
Special Agent and I agreed to assist them in their investigation into 
similar contract awards at VA Medical Centers in Michigan.
    After assisting OIG for months in their investigation, I noticed 
changes in the attitude and behavior of my supervisors towards me. In 
November 2016, after the election of President Trump and believing in 
the assurances by the President Elect to clean up the VA, I met with 
Michael Hershman who was just hired as the Medical Center Director for 
the NIHCS and shared my involvement with the OIG investigation and 
requested to be detailed or transferred to another facility pending the 
outcome of the OIG investigation. While Director Hershman indicated at 
the time he needed to consult with someone and would follow up with me, 
he never followed up or honored my request. I later found out after a I 
received a copy of the Office of Accountability and Whistleblower 
Protection (OAWP) investigation report, that shortly after our meeting 
Director Hershman told the very same supervisors and VA management 
officials that I identified to OIG of the of details of my conversation 
with him. Obviously, things went exponentially downhill from there. By 
March 2017, I was removed as Chief Engineer, by the very same senior VA 
officials that I identified in my disclosure to OIG & OAWP, pending the 
outcome of the still ongoing investigation, supervised by the very same 
senior VA officials I identified in my disclosure to OIG & OAWP, into 
the same unsubstantiated allegations of misconduct from one (1) year, 
four (4) months, and eight (8) days ago , which are based on fabricated 
and manufactured `evidence' by the very same senior VA officials I 
identified in my disclosure to OIG & OAWP. With all due respect to the 
work be conducted by the Special Counsel in the investigation of 
Russian Interference in the 2016 Presidential Election, the alleged 
investigation by the same senior VA officials that I identified to OIG 
into me has gone on sixty-nine (69) days longer than Mr.Mueller's 
investigation into President Trump. And neither appear to have any end 
in sight.
    Despite the fact that I am one of the original whistleblower cases 
investigated by OAWP after it was stood up, for the past 495 days and 
counting, VA leadership and their OGC attorneys have spent hundreds of 
thousands of taxpayer dollars on numerous repetitive Machiavellian 
investigations over the same unfounded allegations of me & no one has 
of yet held the aforementioned senior VA officials accountable in spite 
of the fact the OAWP's investigative report from last summer stated 
that they `lacked candor'. The OAWP was created specifically by 
Congress and the President to hold bad actors accountable, however for 
reasons unknown OAWP have sat on the sideline as senior VA officials 
and OGC attorneys continue to remain unaccountable to anyone and 
continue to subject me to just about every prohibited personnel 
practice (PPP) Congress has passed a law to stop.
    Below is a partial list of prohibited personnel practices (PPP) 
committed against me over the past year:

      I have been denied opportunities for Chief Engineer 
details to several other VA facilities across the Nation;
      For no justifiable reason, my repeated requests & pleas 
to volunteer as part of the Federal response and help restore the power 
grid for my fellow Americans down in Puerto Rico were denied and/or 
ignored;
      Though I was vetting and selected by the VA's National 
Diversity Internship Program (NDIIP) to mentor a minority engineering 
student who ironically came from the same low-income neighborhood I did 
in Chicago, without NDIP approval senior VA officials at the NIHCS 
assigned another mentor and prohibited me leaving my assigned area.
      Senior VA officials and attorneys with VA's Office of 
General Counsel Midwest Division have openly referred to me as `damaged 
goods' across the VA in order to disparage my reputation inside and 
outside of the VA.
      Senior VA officials and OGC attorneys have knowingly left 
me alone & isolated in an out of the way office for a majority of past 
year, even though the VA's own research have found that loneliness in 
Veterans `was tied to the highest levels of depression and suicide 
ideation, or thoughts of committing suicide' \6\
---------------------------------------------------------------------------
    \6\ Teo, A. R., Marsh, H. E., Forsberg, C. W., Nicolaidis, C., 
Chen, J. I., Newsom, J., . . . Dobscha, S. K. (2018). Loneliness is 
closely associated with depression outcomes and suicidal ideation among 
military veterans in primary care. Journal of Affective Disorders, 230, 
42-49. doi:10.1016/j.jad.2018.01.003
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      I have been restricted & denied by same aforementioned 
senior VA officials from access to VA facilities were I had received 
medical care for my service connected injuries.
      Though I have service connected degenerative arthritis in 
my back, I have basically been required to sit all day for 16 months in 
an office with no assigned duties and restricted from entering the 
medical center by the same aforementioned senior VA officials, a 
whistleblower retaliation decision which was supported by OGC 
attorneys.
      Because I have complied with directions under this 
detail, I was recently diagnosed with scoliosis by my Choice Act 
doctors who have directly attributed the cause to my current assigned 
working conditions.
      After my Choice Act primary care physician & the sports 
medicine doctor made this diagnosis, they immediately referred me for 
pain and physical therapy, shockingly the same aforementioned senior VA 
officials for no justifiable medical or administrative reason denied 
the referral for 3 months until Senator Todd Young and Senator Joe 
Donnelly intervened on my behalf.
      During the past 495 days, I have experienced temperatures 
in the office that I have been required to report to as low as 35 
degree F in the winter and 95 degree F in the summer.
      And recently I discovered that senior VA officials and 
OGC attorneys knew back in April 2018 of the possibility that VA 
employees and patients may be exposed to silica and asbestos as part of 
a major renovation project, however even though they were advised by 
the facility Safety Department to relocate personnel in the affected 
area, senior VA officials knowingly assigned me to an office 
immedicably adjacent to the project in question from May 29, 2018 to 
July 3, 2018. This decision was supported by OGC attorneys. I 
respectfully submit that I reasonable belief the decision to 
intentionally expose me to harmful environmental conditions was a best 
recklessly retaliatory. And at worse, criminally premeditated.

    Based upon the experiences and evidence that myself and other 
similarly situated whistleblowers have gathered over the past year; 
there is substantial proof that senior VA officials, OGC attorneys, and 
even investigators with OAWP have lacked candor in the justification of 
their decisions and, most troublingly, have intentionally slow-rolled 
their cooperation with both the OSC and OIG in order to obstruct and 
frustrate OSC and OIG investigators. This pattern of obstruction 
includes inquires from this very Committee and the Senate Veterans 
Affairs Committee.
    Speaking specifically to the VA Accountability and Whistleblower 
Protection Act, in my opinion the distinguished members of Congress and 
the President have already given VA leadership all the tools and 
mechanisms it needs for any dedicated and honest leader to complete the 
mission to care for our Nation's Veterans. I equally believe the 
existing Federal procurement laws are sufficient when they are enforced 
and both Federal employees and outside contractors comply with them. 
Unfortunately, until the VA purges the embedded corrupt bureaucracy 
that are infecting the ranks of Human Resources, Medical Center and 
VISN leadership, OGC, and even the OAWP, I respectfully submit that 
this Committee can plan on scheduling this hearing every year and will 
never see the implementation of VA Accountability and Whistleblower 
Protection Act as Congress and the President have intended.
    In closing, despite all of the malicious actions taken against me 
by unethical and corrupt VA officials and their VA attorneys, I still 
believe in the VA. Because it's not their VA, its mine. It's yours. It 
belongs our Nation's Veterans. It belongs to the incredibly dedicated 
and hardworking VA employees who represent a majority of the VA's 
workforce. Up until recently, I have received fantastic medical care 
for years from the VAs across country and I credit the incredibly 
dedicated medical professionals at the VA and the VA's Vocational 
Rehabilitation Program \7\ for maturing me into the servant leader I 
strive to be. I hope the distinguished members of this Committee agree 
that I have seen the best and, unfortunately, the worst of the VA. I 
have borne witness to President Lincoln's promise with every great 
experience I have enjoyed as patient & an employee of the VA. I 
strongly believe I have a pretty good idea of the untapped potential of 
the VA if it is allowed to evolve. And with all due respect to the VA 
leadership testifying before the Committee today, I believe I've earned 
the right, given my recent experiences, to say with a great degree of 
confidence that once myself and other likeminded individuals are 
finally given the chance to be the stewards of the mission and we are 
allowed to do our jobs without fear of reprisal, this Committee will be 
happily surprised at how quickly the VA transforms into the model of 
health care best practices for future generations of Veterans.
---------------------------------------------------------------------------
    \7\ https://www.benefits.va.gov/ VOCREHAB/martin.asp
---------------------------------------------------------------------------
    Thank you for the opportunity to present this statement for the 
Committee's consideration. I would also like to acknowledge and thank 
Senator Todd Young and his staff for their help and assistance in 
trying to get my medical care back on track and for engaging the Office 
of Special Counsel and OIG on my behalf.

    V/r,

    Daniel Martin

                                 
         Roger G. French (Investigations Unit - Alice Buckley)
VA House Oversight Committee

    Subject: VA Issue Paper regarding current state of whistleblower 
protections as interpreted by VA agency leadership, now expanded to 
other agencies by Executive Order for presentation at the Whistleblower 
Hearing.

    Prior to the Accountability Act of 2015 and the Accountability and 
Whistleblower Protection Act of 2017, whistleblowers were protected 
under a myriad of Federal laws including the Whistleblower Protection 
Act of 2012 and related laws prior stemming from the Civil Service 
Reform Act of 1978 and beyond. None of these laws have been effective 
in protecting the employee-whistleblower from leaders who choose to 
retaliate because leadership is not held accountable. The act passed by 
Congress in 2015 was for a noble cause, to allow agency leadership 
(VACO) to fire incompetent and corrupt Senior Executives (Directors) 
with limited timeframes. Agency leadership, due to lack of HR knowledge 
wanted unchecked power to fire SES personnel without due process 
procedures and to do it quickly and often for non-meritorious reasons. 
A simple embarrassment by a senior leader could often result in removal 
if the agency headquarters knew how to frame the charges. They did not 
know how and often began with a cover-up or knee-jerk reaction. There 
was also a desire to keep SES personnel from organizing themselves into 
a protective organization as employees did with collective bargaining. 
A case in point was the Phoenix VA Scandal. The agencies involved spent 
millions of taxpayer dollars (IG, VA, FBI) for investigations because 
they wanted to sweep the corruption under the table and to change the 
public perception of the damages and deaths inflicted on Veterans by 
local leaders who had no interest in providing quality care to veterans 
only in their own career progressions and rewards. Employees who 
vocalized examples of poor care were systematically fired for 
pretextual reasons and God help the individual who exercised their 
first amendment rights to speak with the media in an off duty status as 
the agency leadership quickly moved to end the employees career and 
licensure/credentials negating any possibility for future employment or 
meaningful work.
    In the Phoenix example, VACO and watchdog groups made every effort 
to sweep wrongdoing by local leadership to insulate the government 
against patient malpractice suits and employee settlement claims. 
Because of the continuing media and public scrutiny did not subside 
they removed the Director with a felony charge for non-disclosure of 
gifts (monies and trips) from a contractor and former VACO leader. To 
do otherwise would have exposed corruption all the way to the Deputy 
Secretary who was later terminated for covering up facility and patient 
care issues. Patient claims were quietly settled as were many employee 
claims under the watchful eye of than Deputy Under-Secretary, David 
Shulkin. Also to squelch the anger and disdain of employees, patients, 
Congress and the public, VACO leadership attempted to fire three other 
leaders at Phoenix, but failed to do so within established regulations 
and with proper due process procedures. Dr. Shulkin disavowed any 
wrongdoing to Congress and the media while attempting to proceed 
quietly with firing of the officials. He also attempted to replace 
officials at the facility and the VISN with individuals who had worked 
and or trained with the former Director. These moves were anticipated 
and exposed on five occasions resulting in the termination of the 
interim appointee and in one case, the proposed appointee for a VISN 
Director position rescinded his application after an article by the 
Arizona Republic exposed his relationship to the former Phoenix 
Director. The officials were eventually fired, however, their appeals 
kept funds needlessly flowing to the officials and the Director's 
Appeal is still waiting for review. These actions resulted in millions 
of dollars more of taxpayer monies being wasted. Congress has been made 
aware of these actions, both republican and democrats, as was President 
Trump and President Obama. The only action taken was by Congress and 
President Trump to appoint David Shulkin as Secretary of the VA and to 
pass the Act of 2015 and 2017. Shulkin next appointed Peter O'Rourke to 
head the OAWP office in VACO and Steve Young, as the Deputy Under-
Secretary. Young was one of the interim appointees at Phoenix who was 
exposed for his tutelage under the Phoenix Director and his attempts to 
ignore the real issues at Phoenix and was subsequently terminated.
    Accident, collusion or criminal conspiracy? Be advised it is no 
accident that the Federal government attempts to cover-up corruption. 
As whistleblowers, you have seen their calculated and unchecked efforts 
to do so. Every effort is made to blame the whistleblower, the 
attorneys or the media, rather than address leadership accountability. 
If the regulations and merit principles do not allow the agency 
leadership or the VACO leaders to take unscrupulous actions devoid of 
merit, leaders can reorganize. As an example Human Resources which used 
to be centralized to VACO with a strong allegiance to OPM was de-clawed 
by agency leadership beginning in 1983 with President Reagan's 
reduction of OPM staff by 33%. HR has since been bounced around like 
foster care and relegated to an advisory function only. Initial 
alignment of EEO, IG and General Counsel also subordinates agency watch 
dogs to perform as leadership wants, whether leadership is righteous or 
corrupt. A recent example is O'Rourke's retaliatory message to Michael 
Missal, Inspector General of the VA as reported by the Washington Post. 
Missal is attempting to review employee complaints and is being 
threatened for doing so and for reports he did against Shulkin. Shulkin 
was O'Rourke's friend and Chief of Staff. He was put in the position to 
protect Shulkin as was Steve Young. Another example is the role of OSC. 
Examine their budget and caseload. Too little to carry out their 
mission. This is purposely done to declaw the OSC. Carol Lerner was an 
accomplished attorney, but was not reappointed because of her honesty 
about retaliators/senior leadership. She should have been reconfirmed 
to her position with OSC.
    Collusion is common in VA. Leaders collude frequently to thwart 
employee attempts to report wrongdoing, retaliation and discrimination. 
We have repeatedly received information from insiders on how Shulkin 
and O'Rourke, along with local leadership, colluded to get agency info 
on employees and had their emissaries, Wells Werden and Brandon 
Coleman, seek out employee info and then collectively conspire with 
agency leadership to fire the whistleblower. This occurred at the 
Marion, Indiana VA (Northern Indiana VA Health Systems) and in the VISN 
6 Network Office.
    In Marion, the whistleblower (an African- American female Veteran 
and physician) expressed concerns regarding the excessive prescribing 
of controlled substances (opiates, benzodiazepines), the repeated VA 
Choice and non-VA Care consult delays, failures in scheduling, and the 
cover-up by executive leadership of patient care gaps which eventually 
resulted in a death of one Veteran and the hemiparesis of another was 
met by Northern Indiana VA leadership with a brutal campaign to 
discredit and malign the physician. OAR investigator Wells Werden 
rubber stamped the VA version of events which allowed Northern Indiana 
to strip the physician of her job, her retirement, her access to COBRA 
then reported her to the National Practitioner Data Bank, state medical 
boards. This dedicated employee was removed from Federal service August 
30, 2017 and has been unemployed due to Northern Indiana's very long 
arm of retaliation: providing very negative references, challenging her 
application for unemployment benefits, refusing to release her VetPro 
file to any employer and using the VA's financial position in the 
community as an endless restrictive covenant which has successfully 
blocked future employment. These actions were not extended to the 
physicians whose poor care resulted in the spastic hemiparesis of one 
Veteran (and current Tort case), the death of another and a prolonged 
ICU stay for another due to aspiration pneumonia. Corrupt VA leadership 
frequently tags whistleblowers as poor performers or providers of poor 
care in order to justify the retaliatory actions.
    In VISN 6, the Network Director was retaliating against the Deputy 
Network Director and used O'Rourke to draft the removal when the local 
Regional Counsel refused based on lack of evidence. The VISN 6 Network 
Director also conspired with Steve Young, Deputy Under-Secretary to act 
as a deciding official in the removal based on the fact she had a pre-
existing and longstanding personal relationship with him at work and 
outside of work. They have since put the action on hold since it was 
reported to OSC. OAWP did not investigate the claims by employees as 
empowered to do until after The Network Director visited Orourke and 
confessed. Now OAWP is looking to cover-up the collusion. West LA is 
another example of abuse by Director, Ann Brown and Scotte Hartronft, 
Chief of Staff and Peter O'Rourke, Acting VA Secretary. Efforts were 
made by Brown to retaliate against a former whistleblower and surgeon 
at West LA, by subjecting him to continued harassment and a sham AIB, 
staffed with an individual from Phoenix. The board was a bogus sexual 
Harassment allegation that the agency knew to be bogus. O'Rourke had 
been hosted at the facility by Brown just prior to the board being 
convened. In still another matter at West LA, an Associate Director and 
personal drinking buddy of Ann Brown, blatantly sexually harassed the 
Chief of Police and Ann Brown failed to act quickly and definitely to 
stop the harassment. As the facility EEO Officer, she should have 
advised the employee to contact EEO. She did not. Rather, she contacted 
OAWP (O'Rourke) and inappropriately asked for an OAWP review of the 
matter. The OAWP interviewed the victim and harassed the victim to say 
it was a consensual relationship. After I complained to OAWP, EEO and 
Ann Brown, the agency removed the Associate Director and then asked the 
victim to testify for the agency before MSPB.
    The newest game put into effect by former Secretary Shulkin and 
maintained in place by Acting Secretary, Peter O'Rourke, and Deputy 
Secretary, Steve Young is to limit facilities to $5000 pay-outs in 
settlements. Settlements higher than $5000. Go to VACO to be delayed. 
Even court ordered settlements are delayed which further prolongs 
justice under the No Fear Act and violates the Legislative intent of 
the action. Consolidating power, as has been done under the acts of 
2015 and 2017, has only increased VA's ability to further threaten and 
abuse whistleblowers and is tantamount to providing bank robbers the 
keys and combinations to banks. Common sense should dictate that you do 
not provide corrupt leadership in VA, or any other agency, more power 
to abuse whistleblowers. VA (OAWP) has recently prepared an annual 
report to Congress (attached). Note that the report does not delineate 
how many SES personnel were removed for retaliation activities, nor 
does it signify how many were reassigned to higher level jobs. The 
report is also silent on how many of the employees removed were 
whistleblowers. Leaders who are found to have retaliated should be 
criminally prosecuted, not rewarded with a promotion as was done with 
Scotte Hartronft, Chief of Staff, West L.A. and considered for 
promotion as was done with Ann Brown, Director, West L.A. and Kari 
Blackwell, Associate Director, West L.A. VA's ``whack-a-mole'' practice 
of putting corrupt leaders in new, and often, higher positions 
maintains the status quo of retaliation and corruption in VA. 
Definitive, decisive and strong action to correct improper actions by 
leadership is the only way to rid VA of corrupt leadership. That was 
the original intent of the Accountability Act, as promised by two 
administrations, but it has been watered down by the 2017 changes and 
the fact that the administration of the act was left in the hands of 
the corrupt few.
    The VA administrations have promised veterans better care by 
private sector entities after much foot-dragging and resistance. They 
next stone-walled the process by alleging IT issues and tried to get 
funds reprogrammed from Choice accounts to medical care accounts. The 
next obstacle created by VA to avoid compliance was not to pay veterans 
private sector bills timely so private sector facilities would refuse 
to serve veterans. It was also an attempt to realign veterans to VA 
where untimely service could now be perceived as better than no service 
and patient billing and credit issues.
    The matters I have used as an example exceed collusion and rise to 
the level of a criminal conspiracy where they intentionally thwart 
employees' rights as codified in statute such as Weingarten and 
employees' constitutional rights to due process and access to evidence, 
as well as, numerous others such as fabricating evidence and depriving 
individuals of their property interests in Federal employment, levying 
false and unfounded charges, discrimination and retaliation. These 
matters should be processed as criminal acts and I have suggested such 
to U.S. Attorney General Jeffrey Sessions and to VA Inspector General 
Michael Missal. The result of doing so will insure that leadership is 
held accountable for criminally conspiring to deprive employees of 
their legal rights and stop the abuse of the 2015 and 2017 
Accountability Acts by VA and the OAWP. Granting authority to 
leadership to thwart protected union rights, to oversight 
whistleblowers under EEO, IG, HR and OSC is antithetical to the purpose 
of oversight functions and allows for greater abuses of authority and 
will result in greater frequency of occurrences of workplace violence. 
To further right the above abuses by VA, all investigations, (including 
AIB'S), settlements and judicial reviews of complaints should be 
reviewed by the Department of Justice after review by the VA IG. To 
fund these changes in IG and DOJ, staff funding should be realigned 
from the Office of General Counsel, VACO Administration and the OAWP. 
This action will better serve veterans and employees and reduces senior 
leader's ability to continue to corrupt the VA.

    Respectfully,

    Original Signature/Roger G. French
    Roger G. French Executive Director of Human Resources, VAPSHCS-
Retired Consultant FCC Consulting/Employee Relations

                                 
                          Dale J. Klein, M.D.
    Chairman Roe and Ranking Member Walz,

    Thank you for the opportunity to provide a statement of record for 
this hearing about the implementation of the VA Accountability and 
Whistleblower Protection Act of 2017. I am submitting a statement in 
hope that this hearing will give a voice to those who blew the whistle 
on fraud, waste, abuse, substandard care and criminal activity at the 
Department of Veterans Affairs (VA), and were retaliated against 
without the perpetrators being held accountable.
    I started work as a physician employee at the John J. Pershing VA 
Medical Center in Poplar Bluff, Missouri in May 2015. This rural VA 
facility was built in the 1940's and had never had a pain management 
clinic. I was hired to start a medical clinic from scratch, that would 
provide much needed comprehensive and interventional pain management 
care to the more than 20,000 veterans in the catchment area.
    While I initially viewed employment at the VA as an opportunity to 
create a first-class pain management clinic, I eventually realized 
there was no actionable path forward toward this goal because of a 
perpetual lack of support from the agency which was shrouded in 
corruption.
    The VA's history is replete with stories of retaliation against 
employees who blew the whistle and a pervasive lack of accountability. 
\1\ Because I followed ethical standards and reported misconduct; i.e.: 
secret wait lists, manipulations of wait times, opioid mis-management, 
forgery, etc., to the Office of Inspector General (OIG), Office of 
Special Counsel (OSC) and Joint Commission, I lit an emotional fuse 
with my chain of command which they viewed as disrespectful. VA 
administration seemed unable, or unwilling, to separate truth from 
falsehood. They did not like conflicting views.
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    \1\ ``VA Attorneys Can't Fire or Punish VA Executives Correctly - 
The Case Of `Dirty D' And Other Agency Misfits'' by Benjamin Krause, 
J.D., December 6, 2017, DisabledVeterans.org
---------------------------------------------------------------------------
    After the VA discovered I had made disclosures, I experienced 
systematic and repetitious bullying, discrimination, harassment, 
intimidation and retaliation. These toxic tactics made my workplace 
hostile. Initially, I was marginalized and eventually, I was placed in 
solitary confinement. The VA threats included reporting me to the State 
Medical Board and the National Practitioner Data Base. \2\ I also 
survived the threat of physical harm.
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    \2\ The Pennsylvania Supreme Court in Hayes v. Mercy Health Corp., 
559 Pa. 21, 739 A.2d 114 (1999) stated that a physician's National 
Practitioner Data Bank entry may have a deleterious effect on the 
physician's medical career.
---------------------------------------------------------------------------
    My personal medical records on the VA's electronic medical record 
system were accessed by agency employees who did not provide medical 
care to me nor had any legitimate reason to enter and read my 
restricted files. One employee who inappropriately accessed my 
confidential medical records, works in Washington DC. While unrepeated 
happenings might be considered a coincidence; habitual and premeditated 
actions are revenge.
    On January 25, 2017, Senator Ron Johnson, Chairman, Homeland 
Security and Governmental Affairs Committee (HSGAC), sent the VA 
Secretary a letter on my behalf. In that letter, Senator Johnson wrote 
the VA should, ``cease all retaliatory actions'' against Dr. Klein.
    On May 3, 2017, Senator Johnson sent a second letter, cosigned by 
HSGAC ranking member Senator Claire McCaskill, to the VA Secretary, 
which included the following excerpt.

    ``request that you direct all VA employees to cease any retaliation 
against Dr. Klein and to cooperate fully and promptly with 
investigations by the VA OIG and OSC.''

    The VA tried to prevent me from making additional patient care 
disclosures and remarkably, closed the entire pain management clinic to 
silence me. The conclusion is inescapable, the motive of the agency, 
was to use me as a camouflage to disguise and distract from their own 
institutional failures. The fury ignited by my disclosures and their 
prodigious effort to silence me, certainly underscores the significance 
of the problems and outwardly the direction of administrators' moral 
compass.
    Unfortunately, the VA terminated my employment in August 2017 
without even finding a logical replacement to care for the many 
veterans with chronic and complex pain conditions.
    To date, there have been three independent Federal investigations 
that have each ruled in my favor. OIG substantiated all my disclosures 
that they investigated. \3\ OSC declared I am a whistleblower and the 
VA retaliated against me \4\ and determined I was wrongfully 
terminated.
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    \3\ https://www.va.gov/oig/pubs/ VAOIG-16-01077 255.pdf
    \4\ ``On May 11, 2017, OSC issued a prohibited personnel practice 
report finding that VA officials violated sections 2302(b)(8) and 
(b)(9) by terminating Dr. Klein's employment during his probationary 
period in retaliation for making protected disclosures and engaging in 
protected activity. OSC requested that the VA respond to its request 
that the VA take corrective and disciplinary action by May 22, 2017.''
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    The first day the VA's Office of Accountability and Whistleblower 
Protection (OAWP) officially opened, my whistleblower case was 
submitted. For many reasons, it was daunting and demoralizing dealing 
with OAWP.
    After much time and effort on my part, I was finally allowed to 
speak via telephone with the OAWP case manager assigned to my 
complaint. He informed me the evaluation of my grievance was winding 
down to conclusion. The case manager said he had not planned to 
interview me during the fact-finding portion of the process. And during 
this telephone call, he did not ask questions regarding my situation. 
The case manager stated he had read some undisclosed documents which 
explained my circumstances and that was good enough for him to complete 
the inquiry.
    Just as the above telephone conversation was ending, I queried if 
he was aware of OIG's report regarding my disclosures. Astonishingly, 
the case manager responded he was oblivious to OIG's findings and 
recommendations. The OIG investigation, report and associated 
recommendations are some of the key elements of my case, which provides 
objective evidence substantiating my claims.
    After speaking with the case manager (who doubles as a Human 
Resources employee), I was left with questions of his qualifications to 
perform a comprehensive and detailed investigation involving 
whistleblower retaliation. I questioned if this was even an 
investigation at all. The case manager made it sound more like a 
cursory review of the occurrences. Although the VA appears to have the 
resources available to conduct an in-depth investigation, it appeared 
he lacked the motivation to uncover the truth.
    Obviously, OAWP did not safeguard me because I was eventually 
fired. OAWP's lack of protection is in contradistinction to OSC's 
findings of whistleblower retaliation and unfair termination.
    During my employment, the VA engaged in a pattern of calculated 
acts, unbounded by governing laws and practice, and obviously motivated 
by personal gain and vindictive desires. VA administrators have and 
continue to put their own personal interests above the veterans' 
wellbeing, which has left a cloud of undue suspicion above the current 
leadership regarding accountability and whistleblower protection. The 
false accusations against me were premised on a mischaracterization of 
the underlying facts and made use of erroneous analysis to draw 
inferences that are otherwise inaccurate or taken out of context.
    The allegations against me were fabricated and patently false. 
Vicious insinuations, unsupported by scrutiny, failing to confirm a 
conclusive result, should not be included in an objective report to 
justify termination of an employee. Likewise, speculation and 
unsubstantiated opinions, are inappropriate in an investigative 
statement. I am disgusted and devastated. And I am the victim. The 
extent to which the VA has gone to harm me is truly unfathomable. It 
strains credulity to conclude that VA Central Office was not involved 
with the termination of my employment.
    Moreover, and noteworthy, a recording has been attained which 
verifies an upper level VA administrator making a statement that 
negates the one and only reason the agency gave for termination of my 
employment.
    After the VA's bias, retaliation and self-interests were all 
effectuated, basically, they became irrelevant since all those evils 
can be covered-up by subjecting the physician to a sham Professional 
Standards Board. \5\
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    \5\ Scandals: Unmasking the Underbelly of the VA, by Dale J. Klein, 
M.D., Chapter 6: ``Professional Standards Board Debacle'', Copyright: 
January 16, 2018, CreateSpace Publishing
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    I was not only unlawfully terminated from my job, but the VA has 
destroyed my career. Even though I'm a Yale alumnus, Board Certified in 
Anesthesiology and fellowship trained and Board Certified in Pain 
Medicine, at 54 years old, I'm unable to attain gainful employment as a 
physician secondary to what the VA has done to me.
    Accountability of VA management responsible for my retaliation 
appears to have been minimal. Regrettably, punitive actions fell short 
of reasonable expectations for violations of Federal statutes. 
Transferring an administrator to another VA facility is not holding the 
offender appropriately responsible. And encouraging/allowing another 
administrator (who possibly committed criminal activity) to retire, 
(one year earlier than he was planning too), is not a deterrent to 
prevent other administrators at the VA from retaliating against 
whistleblowers.
    The bottom line to all of this is, if the VA would simply place 
veterans first and follow established rules and protect the 
whistleblowers who find these infractions - the VA would and could be 
an outstanding Federal department. Continuing to hide the truth or 
pretend otherwise is simply disingenuous.
    My experience with the VA was like participating in war. The 
shrapnel of these traumatic experiences are embedded in my mind. My 
confidence in the Federal government is shaken, but not broken. I look 
forward to Congressional oversight of VA wrongdoings, so management at 
the VA will be held accountable for violations of laws and 
whistleblowers will be protected. The reason to terminate my employment 
was baseless and unfounded.
    This HVAC hearing is where the airfoil meets the relative wind. The 
VA is in legal jeopardy. The agency forced me to squander a year of 
employment in solitary confinement, without assigned duties. The VA has 
repeatedly exclaimed that forcing me to sit in a small room, staring at 
the walls, without assigned duties was not retaliation. If that is not 
reprisal, then what was it? And where is the whistleblower protection? 
And where is the accountability?

                                 
                       Jacqueline Garrick, LCSW-C
    Chairman Roe and Ranking Member Walz:

    Whistleblowers of America (WoA) is grateful that this Committee 
recognized the need to review the Department of Veterans Affairs (VA) 
ability to appropriately implement the legislation passed last year on 
Accountability and Whistleblower Protection. WoA has monitored and 
tracked the Office of Accountability and Whistleblower Protection 
(OAWP) activities as it has had implications for so many of our peers.

Background and Data:
    Incorporated in 2017, WoA has provided peer support to 246 
whistleblowers with 157 contacts coming from across VA. They represent 
a gamut of VA employees nationwide, including healthcare providers, 
executives, contracting officers, and disability claims adjudicators. 
Many are veterans themselves, veterans' family members or are veteran/
patients. They are employees who came to work every day expecting to do 
their jobs. They expected policies and procedures to be in place to 
guide them and their co-workers. They expected fair treatment and a 
positive work environment. They expected orientation, training, 
supervision and career development. They expected to be held 
accountable for their professional ethics and conduct and to follow 
standards, such as those outlined by The Joint Commission or the FAR. 
\1\ They expected to be able to voice their concerns, especially when 
they saw harm to veterans. They expected to engage in continuous 
process improvements. Their expectations were met with disappointment 
and an adversarial experience that caused irreparable damage to them 
economically, physically, mentally, and socially.
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    \1\ Federal Acquisition Regulation
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    They have reported contracting waste, fraud and abuse, substandards 
of care, scheduling irregularities, prescription/formulary 
mismanagement, medical errors, wrongful deaths/suicides, inaccurate 
reporting in homeless veteran numbers, privacy violations, lost files 
or equipment, and the lack of appropriate policies or procedures to 
ensure patient safety or benefits. In most cases, they saw something 
unethical or concerning and made a disclosure through their chain of 
command as they were taught to do. Repeatedly, WoA has listened as VA 
employees recount that they did not think of themselves as 
whistleblowers, which also means that they did not know how to protect 
themselves. They thought they were following ethical standards and 
identified wrongdoing or simply questioned policies and procedures that 
were confusing or contradictory to veteran care. They were often 
unprepared for the retaliation, discrimination, harassment, bullying, 
and a hostile work environment that ensued. They have become all too 
familiar with the 14 Prohibited Personnel Practices outlined in 5 
United States Code, Section 2302. They have been the victims of 
gaslighting, mobbing, marginalizing, devaluing, shunning, blackballing, 
double-binding, counter-accusing and violence. They describe being 
stalked, cyber-bullied, intimidated, threatened and physically 
assaulted. These toxic tactics are well documented in the mental health 
literature as related to depression, anxiety, posttraumatic stress 
disorder (PTSD) and suicide among whistleblowers. The law does not 
recognize the damages done by this level of emotional distress, nor 
does it hold perpetrators of harassment or retaliation accountable.
    VA alone represents approximately 40% of cases being adjudicated by 
OSC with a 31% increase in 2017. \2\ VA had amongst the lowest scores 
on the Federal Employee Viewpoints Survey (FEVS) in 2017. It was 17th 
of the 18 largest Federal agencies. \3\ On July 3, 2018, VA announced 
it would drop its participation in FEVS in favor of its own survey. \4\ 
It is unlikely that VA will be able to effectively execute an 
independent viewpoint assessment, without comparator data from other 
agencies, without Office of Personnel Management (OPM) as a 3rd party 
evaluator, and without compromising personal information. WoA fears 
that this is a move to further identify whistleblowers and target them. 
We urge Congress to further review this plan and discuss it with OPM; 
the administrators of FEVS. On Glassdoor, VA has a 3.4 rating (out of 
5), with pros mostly attributed to Federal benefits and cons related to 
the difficult work environment. \5\ If VA is not an organization of 
choice, then the implications in being able to recruit and retain the 
best staff is impaired. Lack of quality staffing will continue to 
destabilize VA.
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    \2\ https://osc.gov/Resources/OSC--Lerner-- Testimony--VA-- 
Whistleblowers--04.13.15%20FINAL.pdf
    \3\ https://federalnewsradio.com/your-job/ 2018/06/va-drops-the-
fevs-in-favor-of- its-own-employee-engagement-survey/
    \4\ https://federalnewsradio.com/your-job/ 2018/06/va-drops-the-
fevs-in-favor-of -its-own-employee-engagement-survey/
    \5\ https://www.glassdoor.com/Reviews/ department-of-veterans-
affairs-reviews-SRCH-- KE0,30.htm

Costs of Whistleblowing:
    Whistleblowers on average spend three to five years and thousands 
of dollars of their family money or retirement savings with cases 
before the Office of Inspector General (OIG), Office of Special Counsel 
(OSC), the Equal Employment Opportunity Commission (EEOC) and/or the 
Merit System Protection Board (MSPB). If an employee is covered by 
professional insurance and able to fully litigate their claim, their 
costs are often $200,000-$300,000 (limits of the policy) plus out of 
pocket costs. However, most VA employees end up pro se when they have 
spent $10,00 of their life savings and can no longer afford an 
attorney. Often overlooked are the costs of annual leave for legal and 
medical consultation and responses to litigation, while the Federal 
official identified in misconduct is allowed unlimited time and legal 
support to target the employee or respond to whistleblower activity at 
the taxpayer expense.
    Even when cases are substantiated in favor of the whistleblower, 
the VA employee may have already been demoted, detailed, discharged of 
duties, or terminated and bankrupt. Professionally, they are 
compromised. If they are a credentialed provider, they lose their 
profession and, in some cases, the ability to work ever again because 
VA has reported them to their licensing board or to the National 
Practitioner Data Base (NPDB) \6\ without having to prove proper 
investigation. For example, in the Memorandum of Understanding (MOU) 
between VA and NPDB, any report the agency submits to NPDB, must be 
documented in the physician's file, and becomes a permanent record. The 
MOU is governed by Chevron Deference; i.e.: NPDB assumes any report 
they receive from VA is accurate and valid. Congress should address the 
fact that there is no mechanism in place to question if VA is, or is 
not, providing accurate and valid information to the NPDB and the 
elements that constitute that investigation. There should be a 
mechanism to retract and remove such reports when whistleblower 
retaliation is substantiated. NPDB does allow a physician to submit a 
statement to refute the VA's submission. However, it is limited to one-
page and does not allow enough latitude to extensively and in detail 
provide written evidence to disprove the VA's report. The VA is aware 
of the destructive effect a malevolent statement can have on a 
physician's, (nurse's, social worker's, etc.) career and the agency 
frequently uses that leverage to threaten whistleblowers into 
submission. WoA has reviewed several of these threatening letters. The 
loss of their profession also means that providers lose their homes, 
families, and future. So, the consequences of whistleblowing are very 
real and life-altering for healthcare providers reporting substandard 
care.
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    \6\ A web-based repository of reports containing information on 
medical malpractice payments and certain adverse actions related to 
health care practitioners, providers, and suppliers. Established by 
Congress in 1986, it is a workforce tool that prevents practitioners 
from moving state to state without disclosure or discovery of previous 
damaging performance.
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    In the meantime, VA officials responsible for the wrongdoing and 
the subsequent retaliation move along in their careers unscathed and 
protected by fellow VA leaders. Millions of taxpayer dollars are 
footing the bill for employee wrongdoing, poor performance, and the 
legal and investigative fees of targeting whistleblowers. Promotions 
and bonuses are corruptly awarded to entice those who aide and assist 
VA leaders in the removal of a whistleblower. Congress should ask the 
Government Accountability Office to document the amount of taxpayer 
dollars VA uses in cases related to retaliation, harassment, and 
discrimination.

Lack of Government Accountability or Whistleblower Protection:
    The first component of the 2017 law was designed to enhance 
accountability. According to the OAWP, it ``Serves to improve the 
performance and accountability of VA senior executives and employees 
through thorough, timely, and unbiased investigation of all allegations 
and concerns.'' \7\ However, according to its May 31, 2018 report, of 
the 1,171 accountability actions taken (demotions, suspensions, 
removals), 1 was listed as against a senior official. \8\ This list is 
barely a report. It does nothing to explain why those actions were 
taken nor does it identify violations of law (i.e.: FAR, Anti-
Deficiency Act) or misdemeanor for felonious convictions. It does not 
give any data on its timeliness or how it ensures an unbiased 
investigation. In its second report regarding whistleblowers, 2,161 
employees \9\ made complaints, but OWAP found that half were not 
whistleblowers. This data point is concerning because it either means 
that employees are not being educated in accordance with the NO FEAR 
Act or whistleblowers are being unjustly denied. There is also a lack 
of data on how they are being assisted. The OAWP needs to open the 
aperture on how it is defining its whistleblower terms and capturing 
retaliation (in its many forms) and be able to account for the 
assistance provided. It should denote how many of the adverse actions 
they took involved any whistleblowers and who among them were veterans. 
(Veterans have reported to WoA retaliation related to asking for 
reasonable accommodations and use of Family Medical Leave Act time due 
to their service connected disabilities.)
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    \7\ https://www.va.gov/accountability/
    \8\ https://www.va.gov/accountability/ Accountability--Report--
062618--1.pdf
    \9\ https://www.va.gov/accountability/ Whistleblower-Disclosures-
Summary--070518--1.pdf
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    When a whistleblower contacts the OAWP, they are assigned a case 
manager who asks them to fill out the VA Form 10177. Whistleblowers 
wait several months and are then given ``boilerplate'' answers. They 
are told that they will hear back, but never do. One whistleblower 
shared his email exchange with OAWP from April to July 2018. He 
contacted his case manager over 30 times asking for a case update 
because he was still on a detail. She repeatedly asks him for case 
information and responds multiple times with, ``Your disclosure has 
been reviewed. Any applicable findings have been addressed 
appropriately and your case is now closed,'' (he gets that response 9 
times) ``I am unable to provide more information due to privacy,'' (he 
gets that response 5 times) and finally she tells him, ``Your OAWP case 
will remain on hold pending the OSC investigation. If OSC does not 
complete its review, OAWP will re-open the case.'' If this is in fact 
true, then OAWP is a complete waste of government resources and 
Congress should consider abolishing it and transferring those funds to 
OSC so that they can complete their binding unbiased reviews in a 
timely fashion.
    Complaints that go to the OAWP are redirected back to the same 
leadership chain that disclosures were made against, so there is no 
real neutral party involved in the investigation.
    Whistleblower confirm that sometimes there is some form of an 
internal review, usually an Administrative Investigation Board (AIB). 
VA has a Directive and Handbook (0700) on AIB, it does notate that they 
are never binding. It describes AIB as an ``information gathering 
process''. It does not specify the level of training for employees 
delegated the responsibility as collateral duty. These investigators 
usually do not hold the proper job series or certification to conduct 
an investigation. Additionally, whistleblowers categorize it as biased 
because it is often conducted by a person who reports to the same 
supervisor or up the same chain of command. OAWP staff are allegedly a 
mix of Human Resource specialists, investigators, mediators/arbitrators 
and decision makers. Congress should ask VA for its staffing portfolio 
and qualifications for employees assigned to OAWP and for those asked 
to ``investigate'' complaints at all levels or serve on AIBs. Congress 
should require OAWP to report on how long it takes them to adjudicate a 
complaint and how it ensures impartiality. It should also require them 
to document the nature of the complaint and which of the 14 Prohibited 
Personnel Practices were violated.
    Furthermore, even the term ``investigation'' has legal 
ramifications that the VA misuses. Whistleblowers report that they were 
told the ``investigation'' was merely an ``evaluation'' or a ``fact-
finding'' which means it was nonbinding but may still result in legal 
action against the whistleblower. When employees are asked to cooperate 
with these investigations, they are not necessarily advised about 
potential charges that could be brought against them, nor are they 
advised about their due process rights or entitlement to legal 
representation, which are violations of the NO FEAR Act, and certainly 
there is no ability to utilize the same resources that the government 
mobilizes. And since most whistleblowers are not legally savvy about 
governing statutes, not aware of protocols for collecting evidence, not 
informed on options for assistance, not always covered by a union, and 
do not have the same unlimited taxpayer resources as the government for 
adjudicating these cases, they are immediately at a disadvantage in the 
process. This imbalance of power should not only be seen as unjust by 
the Committee, but as inhumane because of the extreme burden it places 
on employees. At the least, Congress should require any formal or 
informal investigation, evaluation or fact-finding provide employees 
with their NO FEAR Act rights prior to any interview. It should ask GAO 
to review all of VA's policies, MOUs, and procedures for these formal 
and informal investigations, the results that they generated, and the 
level of evidence required prior to reporting a provider to their 
licensing board and/or the NPDB. And, if the submission is found to be 
fraudulent, how are providers reinstated and recompensed.
    Under the law \10\, Federal agencies are required to have a policy 
on Alternative Dispute Resolutions (ADR). According to the OPM, an ADR 
should involve a neutral, impartial individual as a mediator/
arbitrator, but as noted that is not usually the case at VA facilities. 
Additionally, the ADR Act calls upon the Federal Mediation and 
Conciliation Service (FMCS) to help other Federal agencies resolve 
disputes. The FMCS provides a wide variety of professional services 
such as mediation, designing and building capacity for effective 
conflict management systems, and developing tools for interagency/
public-private cooperation and collaboration. Although FMCS reports VA 
as one of its customers, there is no visible data as to how often VA 
uses its services and no outcomes of that support are reported. 
Congress should ascertain more information about VAs use of FMCS 
services and outcomes. This may be a more viable option than allowing 
VA to investigate or mediate itself. Congress should also obtain 
information as to how FMCS develops tools for public/private 
partnerships so that those independent entities could be enlisted more 
often to evaluate, mediate and facilitate a whistleblower resolution. 
Furthermore, if this authority is removed from OAWP, those funds should 
be transferred to FMCS for expansion of public/private partnerships.
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    \10\ Administrative Dispute Resolution Act of 1996 (ADR Act)
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    Since the 2017 law passed, VA has not engaged in meaningful 
arbitration or mediation. Several whistleblowers have entered 
arbitration with VA in good faith (and accruing legal fees) only to 
have VA delay discussions and abruptly withdraw from arbitration unless 
the whistleblower agrees to resign. Settlements have also been limited 
since VA changed the policy (issued by Secretary Shulkin) that amounts 
above $5,000 must be approved by an Undersecretary. Congress should ask 
the GAO to assess the trends and cost expenditures for all parties 
related to arbitration, mediation, and MSPB judgements.

OIG Recommendation Enhancements:
    Overall, WoA has concerns that there is also a lack of 
accountability for follow up on OIG reports. The fact remains that OIG 
can only make recommendations to VA senior leaders. Those 
recommendations are nonbinding. Only the OSC can mandate any corrective 
action. Congress should require an annual roll up of all VA OIG 
findings and recommendations. Those recommendations should be tracked, 
and outcomes documented. Since there are no mandates to implement an 
OIG recommendation, this would allow Congress to more readily 
intervene. Otherwise, OIG reports can literally, ``sit on the shelf'' 
for decades. Because of this lack of urgency, the recommendations 
themselves tend to be nebulous and inconsequential.
    In one case reviewed by WoA, a whistleblower reported inappropriate 
conduct, corruption, and fraud by Veterans Benefits Administration 
(VBA) leadership to over 10 VA officials. The whistleblower was almost 
immediately put under investigation, but never further interviewed. Not 
a single VBA leader has been held accountable for any of the waste, 
fraud and abuse or subsequent retaliation related to the OIG report 
#16-04555-138, ``Alleged Contracting and Appropriation Irregularities 
at the Office of Transition, Employment and Economic Impact'' \11\ that 
was disclosed by the whistleblower. Released on May 2, 2018, it 
documented that Transition, Employment and Economic Impact Office 
committed statutory violations of $11.7 million to CALIBRE for 
printing, dashboards, and other information technology. This may be an 
Anti-Deficiency Act violation, so the OIG recommended that the Office 
remedy this unauthorized commitment (does not say how) and that they 
should obtain appropriate funding and accounting in the future. So, 
what happens to almost $12 million? Does CALIBRE have to reimburse the 
government? Who at the VBA is accountable for that misspending?
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    \11\ https://www.va.gov/oig/pubs/ VAOIG-16-04555-138.pdf
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    The whistleblower who initially disclosed this wrongdoing went to 
the OAWP for assistance but got no response. However, after this 
Committee held a VBA hearing in March, WoA published a press release on 
April 11, 2018 regarding the VBA testimony and the OIG report that 
resulted in an email on June 14, 2018, from Nicole Craven, OAWP 
Administrative Investigator requesting information about the 
whistleblowers who shared information with us. Ms. Craven stated that 
she was ``directed'' by her leadership to reach out to WoA. This 
behavior further validates for WoA its survey results previously 
reported to this Committee. In that survey of 23 VA whistleblowers of 
which 13 said that they contacted the OAWP for assistance and got no 
real response or felt it resulted in further targeting and retaliation. 
\12\
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    \12\ https://whistleblowersofamerica.org/f/ woa-survey-on-va-in-
the-news (Several more responded after the story was published.)
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    Therefore, WoA concludes that VA managers guilty of wrongdoing or 
the retaliation are not held accountable - rarely are they even 
identified by the OIG. Most of the time, the OIG recommendation is for 
``further training.'' There should be serious penalties for retaliation 
(fines, demotions, loss of retired pay, etc) to discourage the tactics 
related to it. Congress should create a fund that requires those 
identified as engaging in wrongdoing and retaliation to contribute 
fines. This fund could be used to offset those costs for a public/
private partnership that pays for the independent consultants or 
attorneys (as described by the FMCS) chosen by the whistleblower and 
reduce the burden on the taxpayer.
    In conclusion, WoA finds that OAWP does not meet the standards 
outlined by this Committee. It has been an extension of retaliation, 
harassment, and bias. This Committee would be hard-pressed to find 
employees that would trust or have faith in VA Central Office to 
oversee their ability to seek justice. WoA advocates for a real 
overhaul of the whistleblower protection process and calls upon 
Congress to create new authorities for VA to transfer funds to OSC and 
FMCS for more independent, unbiased and neutral parties and public/
private partnerships that can truly adjudicate wrongdoing, conduct root 
cause analyses, and improve care to veterans.