[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
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
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further refined.
C O N T E N T S
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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/
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\5\ http://flintwaterstudy.org/2017/05/ ruffalos-water-defense-
misleads-flint- residents-supports-over-priced- junk-science-water-
conditioners/
---------------------------------------------------------------------------
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.
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\7\ https://www.benefits.va.gov/ VOCREHAB/martin.asp
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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
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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.
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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
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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.