[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LEARNING FROM WHISTLEBLOWERS AT THE DEPARTMENT OF VETERANS AFFAIRS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, JUNE 25, 2019
__________
Serial No. 116-22
__________
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
40-823 WASHINGTON : 2021
COMMITTEE ON VETERANS' AFFAIRS
MARK TAKANO, California, Chairman
JULIA BROWNLEY, California DR. PHIL ROE, Tenessee, Ranking
KATHLEEN M. RICE, New York Member
CONOR LAMB, Pennsylvania, Vice- GUS M. BILIRAKIS, Florida
Chairman AMATA COLEMAN RADEWAGEN, American
MIKE LEVIN, California Samoa
MAX ROSE, New York MIKE BOST, Illinois
CHRIS PAPPAS, New Hampshire DR. NEAL DUNN, Florida
ELAINE G. LURIA, Virginia JACK BERGMAN, Michigan
SUSIE LEE, Nevada JIM BANKS, Indiana
JOE CUNNINGHAM, South Carolina ANDY BARR, Kentucky
GILBERT RAY CISNEROS, JR., DAN MEUSER, Pennsylvania
California STEVE WATKINS, Kansas
COLLIN C. PETERSON, Minnesota CHIP ROY, Texas
GREGORIO KILILI CAMACHO SABLAN, GREG STEUBE, Florida
Northern Mariana Islands
COLIN Z. ALLRED, Texas
LAUREN UNDERWOOD, Illinois
ANTHONY BRINDISI, New York
Ray Kelley, Democratic Staff Director
Jon Towers, Republican Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
CHRIS PAPPAS, New Hampshire, Chairman
KATHLEEN M. RICE, New York JACK BERGMAN, Michigan, Ranking
MAX ROSE, New York Member
GILBERT RAY CISNEROS, JR., AUMUA AMATA COLEMAN RADEWAGEN,
California American Samoa
COLLIN C. PETERSON, Minnesota MIKE BOST, Illinois
CHIP ROY, Texas
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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Tuesday, June 25, 2019
Page
Learning From Whistleblowers At The Department Of Veterans
Affairs........................................................ 1
OPENING STATEMENTS
Honorable Chris Pappas, Chairman................................. 1
Honorable Jack Bergman, Ranking Member........................... 3
WITNESSES
Dr. Katherine Mitchell, VA Whistleblower, VISN 22: Desert Pacific
Healthcare Network............................................. 5
Prepared Statement........................................... 35
Mr. Jeffery Dettbarn, VA Whistleblower, Iowa City VA Health Care
System......................................................... 6
Prepared Statement........................................... 48
Dr. Minu Aghevli, Ph.D., VA Whistleblower, Veterans Affairs
Maryland Health Care System.................................... 8
Prepared Statement........................................... 53
Ms. Rebecca Jones, Policy Counsel, Project On Government
Oversight...................................................... 20
Prepared Statement........................................... 54
Mr. Tom Devine, Legal Director, Government Accountability Project 21
Prepared Statement........................................... 61
Ms. Jacqueline Garrick, Founder, Whistleblowers of America....... 23
Prepared Statement........................................... 67
LEARNING FROM WHISTLEBLOWERS AT THE DEPARTMENT OF VETERANS AFFAIRS
----------
Tuesday, June 25, 2019
Committee on Veterans' Affairs,
U. S. House of Representatives,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
Room 210, House Visitors Center, Hon. Chris Pappas [Chairman of
the Subcommittee] presiding.
Present: Representatives Pappas, Rice, Cisneros, Peterson,
Bergman, Radewagen, Bost, and Roy.
OPENING STATEMENT OF CHRIS PAPPAS, CHAIRMAN
Mr. Pappas. The hearing will come to order. Today's hearing
of the Oversight and Investigation Subcommittee is entitled
``Learning from VA Whistleblowers.'' Our Committee is
constantly exploring ways to improve the accessibility,
quality, and safety of veterans' health care, create a more
timely and accurate review of benefit applications, and reduce
instances of waste, fraud, and abuse in the department.
One of the best sources of information and ideas is the
VA's 370,000 employees. The people at the front lines for
delivering services for veterans. Unfortunately, VA seems to
have a culture problem. In some instances, VA leadership and
supervisors have turned a blind eye to those in VA's workforce
that have pointed out serious problems or attempted to expose
bad actors that have abused their positions or broken laws.
In even more concerning examples, VA leadership and
supervisors have actively worked to stamp out these voices. As
you will hear from one of our witnesses today, VA informed her
just yesterday of its intention to terminate her employment.
The timing of VA's notice, just one day before this hearing, is
suspicious at best and at worst reeks of retaliation.
Make no mistake, this Committee believes in the importance
of having people who are brave enough to stand up and blow the
whistle on missteps and misdeeds within the Department of
Veterans Affairs. Anyone involved in the veterans' policy arena
will recall the difference that can be made by whistleblowers
if they think back 5 years.
In 2014, a group of people working for the Phoenix VA
Medical Center exposed the existence of a secret waiting list
of veterans in need of medical care. Thousands of veterans were
waiting months upon months for appointments. However, as was
later revealed in an independent VA inspector general audit,
more than 70 percent of the veterans who were waiting for care
from the Phoenix VA were excluded from the VA's official count.
Worse, the Phoenix VA leadership actively worked to hide
the exorbitant wait times. And it turned out that such
practices were occurring at VA facilities nationwide. The
coverup was extensive and deliberate. And the health and well-
being of veterans were at risk.
Congress became involved passing laws to stop secret lists
and requiring that the wait times faced by veterans will be
published online for everyone to see, but there was a cost.
As you will hear from a number of today's witnesses, the
Phoenix VA employees who blew the whistle in 2014 have faced
retaliation. Their jobs were threatened, and they faced a
hostile work environment. Despite our witness' initial success
in obtaining protection and reinstatement as an employee, she
is once again facing retaliation.
Fortunately, VA whistleblowers continue to come forward.
Just last month, journalists reported about a whistleblower
with evidence suggesting VA is still hiding veterans' wait
times. This Subcommittee is currently conducting his own
investigation to examine the facts surrounding these new
allegations. Whistleblowers are too important a resource to
ignore. Their rights must be protected so that future
whistleblowers will have confidence that their stories will be
heard and assurance that their allegations will be investigated
without reprisal.
There are several institutions in place to help protect
whistleblowers. Most recently in 2017, Congress and VA
established a new office of accountability and whistleblower
protection. And two years' later, it is time to see if this new
VA office is effective. Unfortunately, as you will hear from
our first panel, there is evidence suggesting that problems
continue.
Let me be clear. As this Subcommittee's Chairman, I will
fight for the rights of whistleblowers. The work of the VA is
too important to ignore those pointing out the missteps and
misdeeds. I also want to say that there are some examples of VA
eventually successfully listening to whistleblowers without
retaliating against them.
At the Manchester VA Medical Center in my district, Dr. Ed
Kois and his colleagues saw serious problems threatening the
health of veterans. At first, he went to his supervisors, but
Dr. Kois was ignored. He continued pressing these issues to
higher and higher authorities within the VA. He was still
ignored. Finally, he went to the Boston Globe's investigative
journalism team, and to Congress. And finally, the VA took his
allegations seriously and began working to address the patient
safety and quality of care concerns that Dr. Kois and his
colleagues identified.
This is good news that Dr. Kois says he has not experienced
retaliation as a result of speaking out. And I urge the VA to
follow the path of New Hampshire's example when other
whistleblowers express their concerns. Let's not be naive,
however. The success story we saw in my home state is not
always what happens. That is why this Subcommittee will take a
long, hard look at current VA policies and Federal institutions
intended to protect whistleblowers.
We will also hear testimony from a set of experts that work
closely with hundreds of people who similarly raise concerns
and face retaliation from the department. I look forward to the
testimony of today's witnesses. And with that, I would like to
recognize Ranking Member Bergman for 5 minutes for any opening
comments he may have.
OPENING STATEMENT OF JACK BERGMAN, RANKING MEMBER
Mr. Bergman. Thank you, Mr. Chairman. Good morning,
everyone. As an aviator, I know firsthand how vital it is that
all team members at every level of an organization feel
empowered to bring problems forward. When I climbed into an
aircraft, I trusted that everyone, from aircraft maintenance to
my most junior ground crew and flight crew members, to my co-
pilot, that they would alert me to any concerns they had. All
of our safety, my safety and the safety of the crew in the
cargo depended on a deep level of trust and communication.
Similarly, as a leader of Marines, I needed all my units to
be empowered to raises concerns because of the health and
safety of troops, and the mission demanded it. The Department
of Veterans Affairs is no different.
As we saw with the Phoenix wait time scandal in 2014, and
Dr. Mitchell, who is here with us today, was an important voice
in that disclosure, VA employees had the courage to sound the
alarm and potentially save lives. Leadership must create an
environment where such alarms are taken seriously, investigated
thoroughly, and prompt remedial action is taken when necessary.
Today, the Subcommittee will receive testimony from
whistleblowers and organizations that represent them in an
effort to better understand the current state of whistleblowing
protections and accountability in the VA. In addition to
Congress, whistleblowers have three main venues to raise
concerns: the Office of Special Counsel, the Office of
Inspector General, and the Office of Accountability and
Whistleblower Protection or OAWP.
Employees can blow the whistle in one or all three of these
venues. I would like to hear from the whistleblowers about
their experience with each of these offices with three separate
organizations potentially performing the same investigation. I
am interested in the witnesses' perspectives on the differences
and relevant strengths and weaknesses of each office and any
suggestions that they may have for improvement.
From the organizational witnesses, I would like to hear
their opinion concerning the elements of a sound whistleblower
program. I am interested in understanding which Federal
agencies they believe have a good whistleblower program, and
what constructive and concrete actions VA could take to improve
its program.
In the written testimony, the witnesses described several
incidents of retaliation and reprisal. There was no question
that the state of whistleblower protections in the VA reached a
low point several years ago. This important issue, overlooked
for so long, finally attracted widespread attention.
During the 115th Congress, we passed, and President Trump
signed into law several enhancements to the VA's whistleblowing
program, chiefly the VA Accountability and Whistleblower
Protection Act of 2017, and the Dr. Chris Kirkpatrick
Whistleblower Protection Act of 2017, which mandated tough
penalties for supervisors retaliating against whistleblowers. I
need to hear from you how well these reforms are working.
I am under no illusion that everything is perfect, and that
work remains to be done. It is important that this Congress,
that we evaluate whether the last Congress' enhancements have
improved the process.
Originally, the Government witnesses who could provide that
information were scheduled to testify in July, but their
testimony has now been delayed until September. This is
unfortunate because the Committee would greatly benefit from
hearing from VA and the other Government witnesses about the
current state of whistleblowing program.
This hearing was presented to me as the first hearing to
help members understand the whistleblowing process and show the
depth and complexity of the process, in other words, a non-
political educational hearing.
However, on Saturday, USA Today published a story on
today's hearing, identifying the witnesses without comment from
the other governmental organizations. Then yesterday evening,
the Chairman's staff advised my staff that one of today's
witnesses received a notice of her proposed removal and is
concerned that this is reprisal.
Mr. Chairman, as you will learn of this Congress, the VA
does not work that fast. Mr. Chairman, the Committee received a
letter, which I have here, from Secretary Wilkie this morning.
On this hearing, I ask unanimous consent that it be included in
the record.
Mr. Pappas. Without objection.
Mr. Bergman. Yes. Mr. Chairman, pursuant to Committee Rule
3 and the House Rule 11, Clause 2, I request the right to call
minority witnesses before the close of this hearing. Those
witnesses should include VA, the VA inspector general, the
Office of Special Counsel, and the Merit Systems Protection
Board. I believe that it is imperative to receive testimony
from these witnesses as soon as possible, while today's
testimony is still fresh in the minds of members because
whistleblowers deserve it.
I would like your commitment to hold this hearing either
this week or at least the first week we return. Whistleblowers
provide an important service to the country, however, the way
this hearing has evolved has the potential to create the
perception that complaints fall on deaf ears. If whistleblowers
do not have confidence in the system, we are putting patient
health and safety at risk. With that, I yield.
Mr. Pappas. Well, thank you, Ranking Member Bergman. And I
want to give you my commitment that we always intended to do a
second hearing and we are eager to work with you, the majority
and minority staff together, to call witnesses and ensure that
this happens as soon as possible, and hold a hearing that also
includes the VA. So if you want to take that commitment, we are
going to be happy to work with you, you know, shortly after
this hearing concludes on setting a timeframe for that.
Mr. Bergman. Well, you know, unfortunately, this town has a
very short memory and unless we can condense it so we can get
that full perspective. Because as Oversight and Investigation,
as you very well know, we have to look at it from 360 degrees
and the information has to be fresh and correct, and I
appreciate that.
Mr. Pappas. Thank you. I will now recognize our first
witness for the panel. First, we have Dr. Katherine Mitchell, a
physician who has worked with the VA for more than 20 years.
This Subcommittee thanks you for appearing with us today. Dr.
Mitchell, you have 5 minutes.
STATEMENT OF KATHERINE MITCHELL
Dr. Mitchell. Thank you, sir. By nature, I am a very
private person. I was ethically compelled to become a public
whistleblower only because there were no other avenues to keep
veterans from dying. My disclosures on access and poor quality
care had national VA implications and encouraged a wave of VA
employees to speak up about serious VA problems.
As a result, I received the 2014 Federal Employee of the
Year Award. The VA entered into a settlement agreement with me
and gave me a patient care oversight position. I have been
described by the VA as a whistleblower success story and as
definitive proof that the VA embraces whistleblowers. However,
nothing could be further from the truth and I am here to set
the record straight today.
In 2014, I testified at this Committee's groundbreaking
whistleblower hearing that finally brought VA retaliation into
the spotlight. I had hoped my 2014 testimony would help
jumpstart positive change so that all employees could report
problems without fear of retaliation. Unfortunately, VA
administrators today still continue to retaliate. The only
change I have seen is that since 2014 is that administrators
are now much more skilled at weaponizing investigation boards
and manufacturing charges.
In my case, I have experienced ongoing retaliation that
started shortly after signing a 2014 retaliation settlement
agreement. For example, for nearly 5 years, I have been
prohibited from performing every major duty listed in the
written job description that was given to me as part of the
legally binding settlement agreement.
For about 2 years, I was banned from initiating contact
with all VA medical center staff in my region. From 2014 until
2018, I had no regular assignments. Although I am highly
trained as a VA quality scholar, I am excluded from almost
every oversight activity and I am not officially allowed to
intervene in patient care problems. I have not been silent
about this retaliation, but I cannot seem to make it stop.
There are no easy avenues to obtain relief from VA retaliation
and VA administrators know it.
Since 2015, I have intermittently notified my chain of
command, to no avail. In 2016, I contacted the Office of
Special Counsel, or OSC, to get help with the broken settlement
agreement. The OSC agreed to informally work with the VA, but
the VA declined to respond or participate. At that time because
of OSC backlog, my only option was to file another
whistleblower retaliation complaint and wait my turn in line.
It was a wait that would be 15 months long before the OSC had
time to review my case.
In 2017, I also contacted several congressional offices,
but merely was referred to the Office of Accountability on
Whistleblower Protection, or OAWP. I initiated contact with the
OAWP twice in 2017 and requested to file a claim. I then waited
about 16 months before I got an OAWP response back that merely
asked me if I was still interested in filing a claim.
At that time, the self-described OAWP procedure for
investigation was so alarming to me that I opted not to use its
services. In 2017, I also sent the VA a legal formal notice of
breach of settlement agreement. In response, I received and
accepted an offer for short-term assignment with a potential
for a longer term position. However, the VA suddenly cancelled
the offer without explanation shortly after I gave a public
interview about escalating levels of VA retaliation.
I subsequently sent a second legal notice to the VA, but
the VA just ignored it. I never received a response. In
approximately October 2018, the OSC conducted a preliminary
investigation and found ample evidence of retaliation against
me. I subsequently agreed to mediation with the VA to resolve
the issues quickly. Unfortunately, once again, the VA no longer
has the expedited mediation process that was available in 2014.
As a result, I have remained in mediation for 9 months and
counting with absolutely no end in sight.
This delay is primarily due to VA responses that are
extraordinarily slow, piecemeal, and on one occasion so
disturbing that it felt like it should be counted as
retaliation in itself. In my opinion, the VA's callous approach
to mediation illustrates the degree to which the agency
devalues whistleblowers and tries to avoid institutional
accountability for the retaliation.
I am definitely not the only prominent whistleblower
treated this way. Dr. Christian Head of the Greater Los Angeles
VA and Scott Davis of a national VA office are still
experiencing extreme, ongoing retaliation ever since testifying
with me in that fateful 2014 whistleblower hearing. Frankly, if
the VA has no qualms about aggressively targeting well-known
whistleblowers, it stands to reason that lesser known
whistleblowers will be targeted with even more enthusiasm and
absolutely do not stand a chance alone.
Ultimately, whistleblowers are not guilty of anything other
than reporting serious problems that leadership wants to
camouflage. Until leadership culture improves, whistleblowers
will serve as a vital, necessary safety net for veterans.
Whistleblower retaliation threatens that safety net and
eminently jeopardizes the health and safety of every veteran in
the system. Thank you so much for your time. I look forward to
answering your questions.
[The prepared statement of Dr. Katherine Mitchell appears
in the Appendix]
Mr. Pappas. Thank you very much, Dr. Mitchell, for your
work, for your courage in appearing here today, and for looking
out for our veterans.
I will now recognize or second witness, Jeff Dettbarn. He
is a registered radiologic technologist, who has worked at the
VA for more than 14 years. Mr. Dettbarn, you have 5 minutes.
STATEMENT OF JEFF DETTBARN
Mr. Dettbarn. Thank you. I am a 14 year employee at the
Iowa City VA Medical Center. I have been a radiologic
technologist for over 29 years. I became a whistleblower out of
concern that the veterans were being placed at risk of not
receiving the care they desperately needed and the unnecessary
risk to patient care presented by non-medical personnel
practicing as physicians.
I observed the first improper cancellation of a radiology
order in February 2017. A veteran presented for a CT of the
chest for a lung cancer screening, but the order had been
improperly cancelled by the radiology service secretary. I
later discovered that the administrative officer and
secretaries were risking patient lives by overriding crucial
physician orders.
I immediately alerted supervisory chain, but no one would
listen. Nobody seemed to care. In June of 2017, I persistently
reported the problems in radiology. False complaints were made
about my job performance. The complaints came at approximately
the same time of my first disclosure to Senator Grassley.
Management misled Senator Grassley with bogus excuses about one
patient's cancelled imaging order when there had been actually
12,660 orders cancelled.
I would be more than happy to expound on the VA's deception
if asked during the question and answers. In July of 2017, my
banishment from the hospital began and continues today. Once I
was removed from the main facility, others, afraid to speak
out, told of secret lists of veterans who had not received the
imaging for their specialty clinic appointments. Imaging
essential for doctors to accurately diagnose and treat life
threatening conditions. I reported this to the OIG.
In August of 2017, I was targeted by a rigged AIB
investigation. There was no charge letter. I was only informed
that they were addressing issues in radiology. It became clear
from the accusatory nature of the questions I was the target.
Senator Ernst' office has connected me with the OSC, and I
have filed disclosure and retaliation complaints. I also filed
with the Office of Accountability and Whistleblower Protection.
I sent them countless emails attempting to get a progress
report about my case. They never bothered to address me.
In November 2017, a baseless patient abuse allegation was
manufactured, prompting my removal from direct patient care.
December of 2017, the chief of staff, Stanley Parker, proposed
my termination on charges cooked up from the AIB. The clearly
fabricated testimony of witnesses and management in the AIB
prompted me to seek legal assistance with the process of
blowing the whistle.
I have experienced another common VA retaliation tactic,
malicious complaints to my licensing agencies: twice to the
American Registry of Radiologic Technologists; and once to the
Iowa Department of Public Health. These overt attempts are to
blacklist me from both Iowa and national licensing. For every
person who wants to speak up, there are thousands that have
tried, only to be removed, demoted, or intimidated into
silence.
The process of seeking a whistleblower assistance is
confounding to me. Do I file with OIG, OSC, OAWP, the list goes
on. Although I have navigated to this point, not everyone is
that fortunate. After 23 months, my current situation is
horrendous. The VA has mothballed me into a makeshift position
as a records requester. I have not had a performance appraisal
in three years. I am forced to forego merit increases and about
one-third of my salary. But worst of all, the VA has ripped my
patients away from me.
Whistleblowers are essential to ensure the best quality
care our veterans need and deserve. If not for the veterans, I
would not be a whistleblower. The veterans I am trying to
protect, and help have become an extended family to me. As I
have continually stated throughout this process, they are
someone's mother, father, sister, brother, husband, wife.
Taking care of the patients and ensuring the best possible care
for the veterans is why I am here. Taking care of people is
what I do.
At this point in time in my life, I haven't much to lose or
anything to gain. However, the veterans that I am here for,
stand up for, and am a voice for do have a lot to lose, their
lives. Thank you.
[The prepared statement of Jeff Dettbarn appears in the
Appendix]
Mr. Pappas. Thank you very much for being with us and for
caring for our veterans. We appreciate it.
I will now recognize our third witness, Dr. Minu Aghevli.
She is a clinical psychologist who has worked at the VA for
more than 15 years. Dr. Aghevli, you have 5 minutes.
STATEMENT OF MINU AGHEVLI
Ms. Aghevli. Thank you. My name is Dr. Minu Aghevli and I
am the program coordinator of the opioid program at the VA
Maryland health care system in Baltimore. I have a Ph.D. in
clinical psychology, and I have been with the VA for almost 20
years, my entire career. I even did my externship, internship,
and post-doc there.
Back in 2013, as the opioid epidemic was getting going, we
found ourselves unable to keep up with the demand for treatment
and we had to start a wait list. Management almost immediately
started pressuring me to reduce the size of our official wait
list in various ways that I felt were improper: such as
removing people from the unofficial wait list by scheduling
them fake appointments at an imaginary clinic.
I felt these things were wrong and I protested. I went up
through my official chain of command in the facility. I
eventually went all the way to the secretary of the VA,
actually two secretaries. I came to the OIG repeatedly and I
spoke to Members of this Committee.
After I started voicing my concerns about our improper wait
list practices, the agency threatened to remove me as
coordinator of the program and transfer me to a different area
of the hospital. I went to both the OIG and the OSC. The
transfer was rescinded in the end, but not until the last
possible minute before it went into place.
Over the last 5 years, this pattern of retaliation and
threats has continued. It doesn't matter that my performance
evaluations have been uniformly outstanding. I have experienced
constant harassment, scrutiny, and frivolous investigations.
Management has stripped me of authority in ways that have been
humiliating. I am exhausted.
Last year, I reported concerns about a patient death, and I
was threatened with a reprimand. Earlier this year, I had
expressed concerns about a serious patient safety concern and
two months ago yesterday, the agency told me that they were
summarily suspending my clinical privileges. The stated reason
for this was that I had gone to visit a high risk patient in a
community hospital after he had overdosed, been treated in our
emergency room, and then discharged.
While I was visiting him, the veteran also told me that he
had attempted suicide after leaving the hospital. Since my
privileges have been suspended for the last two months, I have
been forbidden to talk to any patients or engage in patient
care. And I have been assigned menial administrative tasks in a
situation that seemed chosen to be as stressful and publicly
humiliating as possible.
A couple weeks ago, I informed my supervisors that I was
going to testify at this hearing. I sent them a copy of the
invitation. Yesterday, I was informed that they were starting
the process to remove me under the Whistleblower Protection Act
provisions.
This feels obviously retaliatory. But worse than that, I
feel like I am being used as a threat against other employees
who might think about speaking up--I am sorry--about patient
care concerns and I resent that. I do not want to be used as a
pawn.
I have gone repeatedly to the OSC for help with retaliation
over the last 5 years, but the OSC has continually let me down.
The process can take years. My last complaint took almost 3
years to resolve. Also, they have not been able to help me
because they have told me that when the VA has threatened me
with actions, but then not followed through, or even when they
have followed through but then reversed course, the OSC does
not consider this a personnel action that they can remedy.
Even when my privileges were suspended, the OSC told me
that this was not considered a personnel action. I do not
understand this because I know that under the statute, threats
against whistleblowers are not permitted. They are prohibited.
And honestly, suspending someone's privileges is worse than
taking a disciplinary action because even if somehow my
termination is stopped, I will still have to put down that my
privileges were suspended every time I renew my license or if I
ever apply for a job for the rest of my career. So it is kind
of like having an arrest record I can't ever expunge.
Finally, I just want to say that the way the VA is allowed
to retaliate against whistleblowers, it has a terrible effect
on veterans. I have taken care of some of my patients for
almost 20 years. I see some of them every day when they come
into the clinic. They are like my family. It has broken my
heart to not see them during this past two months.
Sometimes, I am once of the most stable people in their
lives. And so when I abruptly disappear, it affects them.
Recovery from addiction is so difficult already. And it is hard
to do. It is easy to give up on yourself if you don't think you
are worth fighting for.
Many of our patients don't have people in their lives who
advocate for them and sometimes that is the role we play. We
advocate for our patients and we tell them that they are worth
it, and they matter. And if our colleagues see people
retaliated against for trying to stand up for our veterans,
that will have a chilling effect and our veterans will suffer.
And I am asking this Committee to please expand protections for
people like us because we need to shift the culture of the VA
from one that tells us to be quiet and keep our heads down when
we see something that is wrong, to a place that values speaking
up for what is right. Thank you.
[The prepared statement of Minu Aghevli appears in the
Appendix]
Mr. Pappas. Thank you very much for your strength in
appearing here and for your comments today. Thank you to each
of our witnesses for being a part of this hearing.
We will now begin the question portion of the hearing for
the first panel and I will begin by recognizing myself for
questioning for 5 minutes. And I want to voice my appreciation
again for all of you for appearing here today. I think the
testimony we just heard makes it clear that stepping forward as
a whistleblower is difficult. It is frustrating. It is time
consuming. And becoming a whistleblower has major personal
consequences.
Dr. Aghevli, if I could start with you. As you mentioned,
you were notified yesterday that the VA intends to terminate
your employment. I am wondering if you could describe a little
bit more to the Committee what the notice will mean for you,
even if you were able to gain protection as a whistleblower.
Ms. Aghevli. Do you mean if I am actually terminated or-
Mr. Pappas. Well, just the fact that notice has been served
to you. What does that mean for you going forward as you
grapple with this and, you know, seek to be protected?
Ms. Aghevli. Well, it was devastating to receive because
like I said, I have never worked anywhere else than the VA. So
I feel like that is my whole world.
I had filed with OSC already, so I am hoping that they can
offer me some protection, but it is very stressful.
Mr. Pappas. Well, I can only imagine what you are going
through and I think it is a little suspicious that the VA chose
to communicate its intent to terminate Dr. Aghevli the day
before this hearing, and just a couple of days after an article
was published, and a few weeks after you gave your intent to
your supervisor to appear here and to speak truth about some of
the things that you are seeing at the VA.
And I think we need to give you our commitment that we are
going to do everything we can to protect folks who are in your
position. We can't allow individuals to be intimidated who are
coming forward with important information.
Dr. Mitchell, I am wondering if I could ask you a question.
Your testimony describes a story that would seem in one sense
successful because you blew the whistle in 2014 about wait
times and people heard your story. Congress took action,
hearings were held, and eventually it led to new laws. And for
you personally after going through the long and arduous
whistleblower process, you were reinstated, yet you said today
that you still face retaliation.
And as I understand it, the Office of Special Counsel, the
independent Federal agency that investigates whistleblower
retaliation has found this to be the case. Dr. Mitchell, do I
have it correct that you are once again under retaliation and
could you comment on what this means for your ability to do
your job at the VA?
Dr. Mitchell. The retaliation never stopped. The only
difference is the way the retaliation is occurring has changed.
Before, it was making me work unlimited hours without
compensation or dropping my performance evaluations. Now, it is
basically excluding me from any opportunity that I have to
oversee patient care and address the problems.
My title is Specialty Care Medicine Consultant. I am
supposed to be allowed, by my job description, to oversee
patient care, to be involved in risk management and utilization
review. I have been excluded from all of those activities. I
cannot verify that the VA has improved things when issues have
come up.
I can tell you that in the last 5 years, I have seen
tremendous strides in patient care and access across the VA in
general. I am proud to send my family members to the VA. I
believe the VA provides millions of high quality episodes of
care every year in a manner that in many ways is superior to
private sector. But I am not allowed to help improve that care
at all. It is incredibly frustrating and devastating as a
physician.
Like so many of us, we are rather high performing and we
are our work. And not to be able to do that work is
psychologically incredibly difficult.
Mr. Pappas. And Mr. Dettbarn, we just have a few seconds
left, but you described a very difficult personal process that
you have gone through as a result of blowing the whistle. And I
am wondering if you could comment on why you continue as a
whistleblower and why you haven't given up.
Mr. Dettbarn. The patients, the veterans. That is what we
are here for. As I stated, we take care of people and these are
family. We know their names, their histories, their loved ones.
You are taking care of a family. It is not just a person. They
are a family.
Mr. Pappas. Thank you very much for your response. I would
now like to recognize General Bergman, the Ranking Member, for
5 minutes.
Mr. Bergman. Thank you, Mr. Chairman. Dr. Mitchell, in your
testimony, you recommend that OAWP speed up the intake and
triage process, and improve transparency. Can you tell me what
your expectations are as it relates to the timeliness and
transparency of the OAWP? Can you give me some examples?
Dr. Mitchell. Yes. You are referring to my written
testimony, Section 4 and 5. There are a couple of things. First
of all, when I contacted the OAWP, I asked if the documents I
was going to provide to the OAWP would be shared with my
supervisors. The first time the lady spoke with me offline on
the telephone to let me know that, yeah, they probably could.
The second time, I actually got email confirmation that if I
submitted documents, it would go to my--in the process of
investigation, it could go to my supervisors. That would be the
very first thing I would stop with the OAWP. If there is going
to be an investigation, whether they do it themselves or they
refer to the VISN or the facility to do it, the employee needs
to know that their documents will be held confidential. That is
very important.
There are some other things. I don't know what is a
reasonable timeliness period, but I do know 16 months is not.
Others have told me it has been a year. If you are talking
about a major action where an employee is suffering risk of
termination or demotion or suspension, those actions can occur
within a week or two. The OAWP should have processes in place
to be able to mobilize quickly, to go in and examine whether or
not those personnel actions are appropriate in the context.
Mr. Bergman. Okay. Thank you. Thank you. Mr. Dettbarn, in
your written testimony, you state that both the process of
seeking assistance as a whistleblower was ``truly
confounding,'' and that you did not know how any employee would
know who to contact.
It is my understanding that the No Fear Act of 2002
mandates that Federal agencies provide employees annual notice
of certain Federal laws, including the whistleblower laws and
training on such laws, no less frequently than every two years.
Have you taken that training and are you saying that the
training is inadequate? How could VA improve on that training
to make it easier for all employees to understand and not be
confounded?
Mr. Dettbarn. Yes, I have taken the training. Everyone
takes it. The problem is that we don't have the support from
our agencies when we do finally figure out who to report to.
And then we are turned over to the agency for their own
investigation. So the training looks great on paper. Everybody
did it. But when you try to actually go about the process,
going online to the OIG site or OSC site, wherever, if you are
not a computer savvy person, it is mind boggling.
Mr. Bergman. Okay. So basically, it is online training.
Mr. Dettbarn. Correct.
Ms. Aghevli. Could I add to that?
Mr. Bergman. Go ahead.
Ms. Aghevli. I feel like I could teach the No Fear training
at this point and the problem is that it is not true. So in the
No Fear training-
Mr. Bergman. Well, first of all, what is not true?
Ms. Aghevli. Well, so they state that, you know, bullying
is prohibited, and harassment is prohibited. But I have filed
with the OSC now three times and they are very lengthy
applications. You have to describe the entire history of your
retaliation. So I have gone back 5 years. But then what I have
been told is bullying is not covered as a prohibited personnel
practice that the OSC can help me with.
So it feels frustrating because I take that training every
time and I think, ``I wish I could get help with this.'' My
life would be much better if I could get help with this.
Mr. Bergman. Okay. Well, thank you. I see that my time is
running short, so I will just yield back the 30 seconds, Mr.
Chairman.
Mr. Pappas. Thank you very much. I would now like to
recognize Mr. Cisneros for 5 minutes.
Mr. Cisneros. Thank you, Mr. Chairman, and thank you all
for being here today and having the courage to come forward.
I was just wondering, and any of you could answer this, or
all of you could answer this. But what is the messaging that
the VA gives you as far as coming forward to whistleblowing to
reporting incidents, to reporting something that you see that
is wrong, and contrast that with the reality for me.
Dr. Mitchell. The VA administration does very good public
relations as far as stating that they will not tolerate
retaliation. They are actually trying to become what is called
a high reliability organization. It is a new initiative where
it is a culture of safety. Everyone is supposed to be
encouraged to speak up.
Although I have had supervisors who are excellent
supervisors, very ethical, in general, when you bring up a
problem to the VA, you risk your professional reputation, your
credibility. And if they go after you as viciously as they have
been, you risk your ability to support yourself and your
livelihood because as Mr. Dettbarn said, they will maliciously
manufacture things and report you to your license or licensing
agency.
I know of at least five physicians who have spoken up, who
were fired or had to leave, and could not get a job for at
least a year, sometimes two years, and in one case, five years.
This is a radiologist, radiation oncologist, internal medicine
physician, highly skilled surgeon.
This retaliation, I know some people think that it is
office politics, it is not. This is a vicious, relentless
assault on everything that is important to you. It drives
people to the edge. Chris Kirkpatrick was driven to the edge.
He was the psychologist out at Toma who committed suicide.
Frankly, this is my tenth year of retaliation. It started 5
years before the access scandal.
I am a well-rounded woman. I am intelligent. I have a great
support system. I would have successfully committed suicide a
while ago because the retaliation is so severe. I don't say
that to shock you but to open your eyes that this retaliation
is vicious. This is at a level that you can't imagine, and it
is destructive to everyone and endangers veterans because
anyone with a reasonable mind would not speak up in this
culture.
People tell me things so I can report it because they are
too afraid of what will happen to them.
Mr. Cisneros. And any of you can answer this second
question as well. But when you have come forward to report the
incidents or the wrongdoing that you saw, did anybody come and
visit you to discourage you to retract your statement? And who
was this? Is it junior personnel, junior supervisors, or is it
coming from higher ups within the VA facilities or even higher
up than that?
Ms. Aghevli. I think in my case, people have expressed
concern for me that something will happen to me if I say
something.
Mr. Cisneros. Were those friends or were they, like,
supervisors that came-
Ms. Aghevli. Both. I mean, I was advised at one point that
I would probably need to change jobs or leave. And look at what
is happening. I am now sitting in a congressional hearing and I
have been proposed for removal. So I guess that was good
advice.
I mean, I totally agree with Dr. Mitchell. I think there is
a culture of like we do not air our dirty laundry. And it is
very destructive because it means that instead of being able
to, you know, look at things that didn't go as well as they
might, and learn from mistakes, and problem solve, it is just a
stone walling.
Mr. Cisneros. Mr. Dettbarn, did anybody encourage you to
kind of retract your statements or anything that you saw?
Mr. Dettbarn. No one encouraged me to retract my statement,
but I think I came across strong enough at the beginning that I
wasn't going to back down from this. This is an important issue
and veterans' health care is at stake.
They tote the I Care, No Fear. We have to take these online
courses every year and it is exactly the opposite of what these
courses teach us that we are confronted with from management in
the VA.
Mr. Cisneros. All right. With that, thank you very much for
your testimony here today and for coming forward. And Mr.
Chairman, I yield back my time.
Mr. Pappas. Thank you. I now recognize Ms. Radewagen for 5
minutes.
Ms. Radewagen. Thank you, Mr. Chairman. I want to thank the
panel for being here today. My question is for all three of
you. What are some specific actions that Congress could take
right now to improve protections for whistleblowers? If I could
get maybe one or two answers from each of you, please, briefly.
Dr. Mitchell. There are two things: The Merit Systems
Protections Board is backlogged 2,000 cases in 4 years because
there is no three person quorum. If there could be a bipartisan
effort to make sure that whatever is done is taken, or whatever
needs to be done is taken, to make sure there is a three person
quorum.
I don't care what the political party is, I just need those
people. There are 2,000 people waiting with potentially
improper personnel actions. The other thing is the OSC was
grossly understaffed for many years. Their budget is one
percent less. They are backlogged 2,600 cases. They found a way
to hire 11 people by redoing their lease. But I would go to
them and say, ``What kind of monies do you need?''
They are getting historic levels of employees coming to
them and a huge portion are from the VA. They do excellent work
when they have enough staffing. But when they don't have enough
staffing, they cannot do the work they intend to do.
Ms. Aghevli. Yes, I would add a similar thing. I think
cases need to be processed quicker because if you wait years,
you are in a limbo. The way adverse actions and personnel
actions are defined seems very, very narrow to me. You know,
proposing actions and then pulling them back at the last minute
over and over again is exhausting. That is threatening. I think
in a lot of other workplaces, that would constitute harassment
and intimidation.
And then in my case, you know, if I didn't have a pending
case before the OSC, I would have 7 days to deal with this huge
evidence file and mount some sort of defense. And if I didn't
have a lawyer to help me, I don't know what I would do. So the
way the removal process goes now under the law is very
difficult for most people to handle.
I think we need a little bit more protection for--I mean,
if you are about to be removed. It seems like you need a little
bit more in place to help you. I agree when people are bad
actors and they have done something wrong, obviously they need
to be able to be removed, but if you are facing reprisal, that
is a very thin margin.
Mrs. Radewagen. Mr. Dettbarn?
Mr. Dettbarn. This sounds very simple, but listen to the
whistleblower and instead of acting--there was so much money
and time wasted in the disagreement of what I was--or the
rebuttal to my disclosures, the problem could have been fixed 2
years ago when it was brought up, but instead of listening and
trying to fix it, all we got was excuses of why it was
happening.
I believe that when the OAWP was put into process there
were 1800 people terminated within the first year, only 15 were
supervisors, management positions. The fact that 1700 people
that were environmental services, nurse's aide, food service
workers, I don't think that is who our problem is.
Ms. Aghevli. Can I add to that? I feel like when I read
these OIG reports--I am not an expert and I don't pretend to
know about other facilities, but I feel like often they will
identify a major problem like, you know, there is improper
management of a wait list, and what they will focus on is the
front-line staff, like all of these front-line staff are
scheduling improperly, but they will fail to look at whether
this is being directed in some way.
And even if it isn't one person saying you do this, is
there a culture at that facility that is influencing people to
do these things, and I think over and over again we are not
looking at that as a system. We are just picking off the people
at the very bottom, like the low-hanging fruit, and so it keeps
happening.
Mrs. Radewagen. Thank you.
Mr. Chairman, I yield back.
Mr. Pappas. Thank you very much.
I now recognize Miss Rice for 5 minutes.
Miss Rice. Thank you, Mr. Chairman. I'm sorry, I thought
there was someone else before me.
First, I would like to thank all three of you for
testifying here today about your experience as whistleblowers.
Your dedication to serving our veterans is not only exemplified
by the work that you have done, but through your decision to
continue working at the VA despite the challenges and the
intimidation tactics that you have faced.
I am sure I speak for everyone on this Committee when I
express my deep concern about the instances of ongoing
retaliation that you have shared with us today. This is
completely unacceptable. We cannot allow individuals who are
brave enough to come forward about threats to veterans' health
and safety, and who are perfectly, more than good at their
jobs, to be pushed out of their positions, while those
responsible for actual wrongdoing are not held accountable. The
fact that all three of you reported misconduct at the VA
regarding wait times and backlogs, some of which occurred, you
know, as far back as 2014, and only a couple of weeks ago as
well there was another whistleblower report about the same
exact issues and subsequent retaliation for reporting it,
points to systemic cultural problems within the VA management
that this Committee simply cannot ignore. I mean, it is not as
if every whistleblower is talking about a new problem, we're
talking about the same things happening; clearly, they are not
being fixed.
Mr. Dettbarn, can you just talk a little bit more, because
this gets to the heart of whenever we have had management
before us in hearings, I have always focused on how far up the
chain goes, where is the accountability. If someone becomes a
whistleblower--and this is to the point that you were making,
Mr. Dettbarn--they don't--out of 1800 people who were fired,
none of them were executives or very few at the top who were
actually responsible for addressing the issues that all of you
have exposed.
So if you can just talk a little bit more about your
perception of how, you know, their willingness to hold people
at lower levels accountable for problems that are far more
systemic than just, you know, a one-off, so to speak.
Mr. Dettbarn. The people that are being held accountable,
the lower-level echelon, if you want to call us that, we were
instructed to do this by management. This came down, we were
constantly told a directive, the DUSHOM directive gave us
authority to cancel these orders. What DUSHOM directive? Show
me that directive. If you are going to tell me to cancel a
patient's order, you better have it in writing of what I am
supposed to do.
The directive that gave them the authority to cancel orders
with all of the stipulations wasn't signed until September of
2017. They started canceling, the first patient showed up
February 22nd, 2017, months before the directive was ever even
signed. And we--the lists that were given out to subordinates
by management, it came from the chief of staff to my
administrative officer, who then doled out the lists of orders
to be canceled.
So, if your boss tells you to do something, you would hope
that it wasn't illegal, and you sure don't expect to get in
trouble when you question, what are we doing? You can't do
this. And then you end up like the three of us.
And something that you said, Miss Rice, that I thought was
very inspiring: we choose to stay at our positions, and we
choose that because we care, we truly care about the veterans
and our patients and their families.
Miss Rice. Well, that is very obvious, that is very
obvious.
So one of the things that I like about this Committee is
that we don't--it is not a political committee, all we care
about is making sure that our veterans, our brave men and
women, are served. And these complaints, this horrifying
treatment of whistleblowers was--Obama was President when you--
Dr. Mitchell, when you had your whistle--in 2014, and some has
been under the Trump administration. I think this agency
suffers from, especially over the past 2 and a half years, of
being completely rudderless; there is no one at the top, there
is no accountability.
But that is not to say that the problems with
whistleblowers only have existed over the past 2 and a half
years. Even when there was a dedicated, Senate-confirmed
Secretary of the VA, the problems with whistleblowers existed
too.
So I am just trying to figure out what is at the core of
this problem. Is it because there is no leadership at the top?
Is it because the culture is just so--this corrupt--because
that is what it is--this corrupt culture is just so embedded in
the agency?
And this is for all of you, if we could start with you, Dr.
Mitchell.
Dr. Mitchell. Yes. The agency is 89 years old; I have been
working in it for 30 years either as a student or a nurse or a
physician, and the culture of leadership has been malignant
even back in 1989 when I started. This has nothing--
Miss Rice. But why, why? Why do you--
Dr. Mitchell. I don't know what started it originally, but
what happens is that leadership people promote people that are
like them. So, bad promoted like, and that is very common. So
you have a culture of people that are all like-minded.
I will tell you, I don't want to paint all leadership with
a broad brush, because I have known some very ethical, very,
very good people, supervisors, administrators, who are
wonderful. The problem is there are only two types of
administrators or leaders in the VA, those that wield power
unethically and retaliate, and those that wield power
ethically, but don't have the power to address and stop the
retaliation.
I have had my supervisors, I had two of them who were very
sympathetic that I wasn't allowed to do anything in my job
description, but they said they couldn't overcome politics. I
don't blame them, because they too would have been targeted and
they would have been fired.
And, again, this has nothing to do with who is in office.
Things got worse 2 years ago because the media's attention
turned off whistleblowers and turned on to other politics and
other things. It has nothing to do with who is in the
President's office or who controls Congress. This is a
malignant leadership culture that will outlast us all unless
someone has the courage to break rank in leadership and finally
change it.
Mr. Pappas. Unfortunately, we are out of time here.
Miss Rice. I apologize, Mr. Chairman.
Mr. Pappas. That is quite all right. I appreciate your
response.
And I want to recognize Mr. Roy for 5 minutes.
Mr. Roy. Thank you, Mr. Chairman. I couldn't agree more
than my colleague Miss Rice about the extent to which this is
clearly a bipartisan problem.
I just want to thank you guys for standing up, having the
courage to stand up, and just know that--at least I am going to
speak for myself and I think, you know, my colleagues that we
have your back. This is not the way things should operate and I
really want to thank you for doing what you are doing; it is
important and it means a lot, it means a lot to the veterans
who are not receiving the service they should and it means a
lot to the country that you would have the courage to do this.
So, thank you.
I have a couple quick questions. Dr. Mitchell, you describe
administrative investigative boards and professional standards
boards as being weaponized. What sort of oversight exists, if
you could give any help on this, what sort of oversight exists
for these boards?
Dr. Mitchell. There is no oversight. Officially, human
resources is supposed to be in charge of it. What happens is
that the rules are complex, but there are some basic things
about giving a charge letter, basically telling a person they
are being investigated, rules of evidence, procedure, making
sure that it is neutral people on the panel.
What they do by weaponizing, they used to just do one or
two things, now they do all of them. They make sure that the
people on the panel are either cronies of the person who is
doing the retaliation or are too afraid to stand up to that
person to go against what the retaliator says.
When they give a packet of evidence, it used to be a few
sheets of paper and there was missing pieces. Now what they do,
especially for physicians, is they will go back through every
case the physician has ever done, pull up 30 or 40 cases, give
pieces of information, even though the physician didn't do
anything wrong, put it in a packet, jumble them up, and then
give the person 7 days to respond.
Another thing is that they don't give them a list of their
rights.
What they need to do is develop a standard operating
procedure and a checklist, and make sure that--get your best
and brightest HR people, make sure you have the rules. There is
a step-by-step procedure, so it is AIBs and standard
professional boards are done the same way at each facility,
there is a checklist that is electronically signed off, and
then if anyone deviates from that checklist, they are held
immediately accountable and responsible.
I can tell you right now, that alone would stop a huge
amount of these frivolous AIB boards.
The other thing is the fact-finding investigations. Fact-
finding investigations are basically fishing expeditions. They
are not a full AIB, but what they do is they go to your
colleagues or to people in your area and say, you know, Dr. So-
and-So is doing this, or Nurse So-and-So is doing this, can you
tell me about that? And they kind of feel out about which
employees they can get to give reports of contacts that are
false.
Another thing they do is if you are--there is a chief of
staff out of Dublin, the Dublin VA, Carlene Bapttiste-Downie,
in her AIB none of the affidavits were signed and, more
importantly, a lot of them were from employees that she had
legitimately given disciplinary action because they were
substandard performers. Administration went to those people and
got them to say that she was creating a hostile work
environment.
The credibility was questionable to begin with. The
techniques of weaponizing these AIBs are very good, very
effective and, once it is done, it takes the employee literally
years to reverse it. And that has to stop, that tool has to be
taken away.
Mr. Roy. Well, I don't even know where to begin. I mean, I
would like to dive into that and, you know, sit here for--but I
have got 5 minutes, but I want to know more about that.
Dr. Aghevli, thank you. I know it is a pretty tough week
for you, but, again, we are here, and we are listening. Just
what parts of the Whistleblower Protection law are not being
followed, in your observation?
Dr. Aghevli. I mean, I think more than anything, like I
said, I don't feel like the things that have made my life
miserable in the last 5 years have been acknowledged when I
went for help. I feel like the ways I have been harassed and
intimidated when I went to try to get help from the OSC, I have
been told over and over again that those were not things that
they could intervene in.
And it has been confusing because, like we talked about a
couple of minutes ago, when I take the trainings on things like
No FEAR, I would understand that those are things that are
prohibited. So I have ended up feeling kind of like anything
could be done to me. I mean, in a way, I am almost relieved, I
was relieved to get that letter, because it felt like the other
shoe dropping.
Mr. Roy. Mr. Chairman, if I might ask one more question? I
know I am over my 5 minutes.
Thank you for that and, again, I would like to go and
explore that further. The fact that you are describing 5 years'
public service is miserable and for you personally is really
troubling.
Dr. Aghevli. Well, I love--but I should say, I love my job.
Mr. Roy. Yep.
Dr. Aghevli. And, you know, it is scary to just feel like
at any moment I could come into work and something else is
going to happen.
Mr. Roy. Mr. Dettbarn, quickly, you said for every person
who gets to this point of being a whistleblower, there are
thousands that have spoken up only to be removed, that is a
staggering number. Where do you get that number? Is that kind
of hyperbolic or is there any kind of assessment to that
number?
Mr. Dettbarn. No, there is no assessment, that is just my
experience with the people that I have had to deal with. I have
had many, many coworkers feeding me information since this
whole cancellation of orders fiasco began. So, once somebody
gets--once you get to this point, there are a lot of people
that are willing to help and fight for the veterans, and that
is where I get that number is the number of people that have
reached out to me to try to get their voice heard.
Mr. Roy. Well, God bless you all. Thank you for what you
are doing.
Mr. Pappas. Well, thank you. And before we close out this
panel, I just wanted to recognize Ranking Member Bergman for a
brief statement.
Mr. Bergman. Yeah, thanks, Mr. Chairman. And, truly, thank
you to all of you. As I listened to all of the questions and
all your responses, this is not a simple matter, it is a very
complex one that has occurred and built over time and over
decades. This did not just occur in the last couple of years,
is what I heard you saying. This has been building for a while
and through previous administrations, whatever that might mean.
So I just wanted to acknowledge your selflessness in coming
here and I thank you very much.
And I yield back.
Mr. Pappas. Thank you. And, once again, thank you to our
first panel for joining us here today. We really appreciate
your time, your thoughts, and your strength, and all the work
you do for our veterans. So, you are now excused.
[Pause.]
Mr. Pappas. And I would like to call up our second panel.
[Pause.]
Mr. Pappas. Welcome today. Good morning.
I would like to recognize our first witness for the second
panel. First up we have Ms. Rebecca Jones, she has Policy
Counsel at the Project On Government Oversight.
And, Ms. Jones, I would like to recognize you for 5
minutes.
STATEMENT OF REBECCA JONES
Ms. Jones. Chairman Pappas, Ranking Member Bergman, and
Members of the Subcommittee, thank you for the opportunity to
testify today on the vital role of whistleblowers at the
Department of Veterans Affairs.
I am Rebecca Jones, the Policy Counsel at the Project On
Government Oversight. Since 1981, POGO has worked to strengthen
the effectiveness and accountability of the Federal Government
through independent investigation, analysis, and policy reform.
VA whistleblowers put their careers on the line every time
they speak truth to power to ensure the best possible care for
those who put their lives on the line defending our country. In
that way, VA whistleblowers are heroes saving heroes. Their
disclosures save patients' lives by identifying barriers to
timely and effective medical care due to negligence or
intentional misconduct. In the process, whistleblowers expose
officials who have perpetuated a culture of abuse for decades
and free up misused taxpayer dollars that can instead go toward
providing resources and care. And yet, even though
whistleblowers are legally protected, they often face
retaliation.
The Office of Special Counsel reports that 30 percent of
their intake comes from VA employees alone. This is partly
because the VA is a massive agency, but it is also because of
the overwhelming culture of intimidation and retaliation that
has persisted for decades, forcing whistleblowers to seek
relief when they are retaliated against.
In 2014, alarmed by the Phoenix VA wait list scandal, POGO
and the Iraq and Afghanistan Veterans of America invited VA
whistleblowers to make secure disclosures to us online, so that
we could better understand the prevalence of retaliation at the
VA. In just a month, we received disclosures from an
unprecedented 800 VA employees, contractors, and veterans who
had lost faith in the agency.
The theme was clear: whistleblowers were terrified of
speaking out for fear of losing their livelihood.
Shortly thereafter, POGO was wrongfully subpoenaed for
those disclosures by the VA Inspector General. Although we have
refused to comply and that subpoena was later dropped after
Members of Congress stepped in, we nevertheless learned for
ourselves that the VA's retaliatory culture permeates the very
top levels of the institution.
The Office of Accountability and Whistleblower Protection
was created in part to address that culture by holding senior
VA officials accountable. The office is a central point of
contact for all matters related to whistle blowing, including
disclosures and acts of retaliation. It acts as an ombudsman
and an investigator, depending on the issue at hand.
While the impetus behind the office is sensible, POGO
expressed initial concerns that creating such an office within
the agency itself would cause more harm than good. We worried
that the internal office would become a clearinghouse used to
identify and retaliate against whistleblowers, and that it
wouldn't be effective at holding senior officials accountable
because of its lack of independence.
Unfortunately, the problems we most feared seem to have
become a reality. Last year, both the GAO and the OAWP itself
released reports that demonstrate an agency unprepared and
unwilling to handle whistleblower investigations in good faith.
For example, OAWP noted that the VA's Office of General
Counsel is conducting legal reviews of proposed disciplinary
actions against senior VA officials. This is not only a glaring
conflict of interest, it is contrary to the VA Accountability
and Whistleblower Protection Act, OAWP's authorizing statute.
Second, GAO found that employees accused of misconduct are
participating in the investigations into their own behavior,
including managers investigating themselves for misconduct.
To make matters worse, the decision of whether to implement
proposed disciplinary action isn't being appropriately elevated
to a more senior office. As a result, an individual can act as
both the proposing and deciding official in certain cases.
And, finally, senior officials are not being held
accountable for their actions, making up only 0.1 percent of
disciplinary action taken in the office's first year,
maintaining the level since 2014.
VA whistleblowers, many of whom are veterans themselves,
blow the whistle because they are honor-bound to speak up when
they witness violations of the country's trust, or individual
suffering caused by negligence or corruption. Unfortunately, VA
whistleblowers are ten times more likely than their peers to
face retaliation, according to the GAO.
Strengthening opportunities for whistleblower disclosures
benefits us all, but it is vital that we be willing to quickly
change laws that carry unintended consequences for those they
were meant to protect. We ask that you consider amending the
structure and work of OAWP to increase its independence, so it
can better serve whistleblowers and veterans.
Thank you for the opportunity to testify today and I look
forward to any questions you may have.
[The prepared statement of Rebecca Jones appears in the
Appendix]
Mr. Pappas. Thank you, Ms. Jones.
I will now recognize our second witness, Mr. Tom Devine,
Legal Director of the Government Accountability Project.
Mr. Devine, you have 5 minutes.
STATEMENT OF TOM DEVINE
Mr. Devine. Thank you. This hearing is timely and
necessary, because the DVA remains a free speech Death Valley
for Government whistleblowers. The agency produces from 30 to
40 percent of whistleblower complaints nationally in the
executive branch, the same as GAP's docket has been for the
last few years. This is extraordinary for one agency in the
nearly 2-million-person executive branch workforce. And if
there were any hope that it has learned its lessons, the agency
dashed them this month in a media policy to all employees that
imposed blanket prior restraint for all communications. This
not only violates the Constitution, but three provisions of
Federal law, including two in the unanimously-passed
Whistleblower Protection Enhancement Act.
Hopefully, this hearing will lead to the DVA respecting the
rule of law, at least in terms of official policy.
Today's whistleblower testimony is not about an aberration,
it is about a way of life. I will share the nightmares of
others who risked their professional lives to save the lives of
America's veterans.
Consider Mr. James Hundt. The secret waiting list scandal
horrified the Nation and sparked a serious corrective action
effort that was leading to significant progress, but over the
last 2 years the agency has gutted it by replacing virtually
the entire team of 175 seasoned professional career employees
with a green crew of a buddy-system contractor. The civil
service team initially had received agency commendations, but
they were all replaced after a reorganization illegally planned
and controlled by the buddy contractor. It reversed internal
agency recommendations, violated basic contracting and spending
laws, and since the purge on-site inspections have been
replaced by an honor system in the VA's hospitals.
Mr. Hundt, the team's Associate Director, persistently blew
the whistle on this sellout. The agency then opened retaliatory
investigations and fired him on pretextual grounds, amazingly,
for him seeking personal gain on government time, although he
had checked and received prior approval for the same actions
that non-whistleblowers engaged in and received promotions.
Or consider Krod Rodriguez, one of the key pioneers who
broke the secret waiting list scandals. He disclosed that the
agency incorrectly scheduled 400 patients in Phoenix with
another 8,000 awaiting appointments; he disclosed to Congress a
list of 38,000 veterans nationally waiting over 280 days; and
he also disclosed the tragic medical consequences, including
patient deaths.
In response, agency managers moved him to a small,
windowless office without air conditioning in Arizona; placed
him under surveillance, eliminated his supervisory authority;
actively recruited mobbing allegations against him; lowered his
performance appraisals; referred to him as a ``rat'' and a
``media whore''; subjected him to an AIB proceeding; failed to
respond to death threats against him; and placed him under
criminal investigation.
Or there is Daniel Martin, the Chief of Engineering
Services of Indiana VA facilities, where he also supervised
over 100 employees. He disclosed contractual bribery, including
for the water purification system essential for the
sterilization of medical equipment and safe drinking water for
patients. He later learned and disclosed evidence that the
Indiana abuses reflected corruption occurring nationally.
In response, the agency stripped Mr. Martin of his duties;
assigned him to an isolated office, unheated in winter and not
air conditioned in summer; had him perform menial chores under
the supervision of a junior staffer; exposed him to asbestos,
which is already having destructive medical impact; placed him
under three retaliatory investigations, primarily for an
altercation that his so-called victims denied was more than a
conversation. The third probe was conducted by an AIB that
denied him access to or even the identities of his accusers.
The agency initially refused an OAWP-mediated solution to
move him to Seattle, Washington, where management said they
would welcome him. Despite canceling his duties, Indiana
officials said they could not spare Mr. Martin.
It appears he will finally be allowed to work in Seattle,
but over the last 3 years his life has been a professional
nightmare.
Why didn't OAWP stop these abuses? Its authority to grant
temporary relief initially had an outstanding impact, but
despite genuine commitment from some leaders it has become a
threatening force of frustration for whistleblowers as a rule
and an effective remedial agency as an exception. The causes?
Lack of structural independence; cultural bias from
investigators whose careers have been based on retaliatory
investigations; lack of enforcement teeth for permanent relief;
effectively, inexplicably canceling its effective whistleblower
mentoring program, which defused conflict and shrank litigation
by finding whistleblowers a fresh start; and operating on an ad
hoc basis without accountability to regulations. This maximizes
confusion and enables arbitrary action.
To illustrate, the Senior Executive Association has
detailed how OAWP conducted several lengthy, draining
investigations of a manager that led to a 5-day suspension,
only made possible by removing exculpatory evidence from the
file. This is the same outfit that doesn't have time to return
whistleblowers' calls.
Mr. Chairman, we have got 19 recommendations from the
bipartisan, trans-ideological Make It Safe Coalition, whose
mission is supporting whistleblowers. I hope that we can work
with your Committee on these, because both this Committee and
the whistleblower community are committed to making
Whistleblower Protection Act rights a reality at DVA; however,
our work is far from finished.
[The prepared statement of Tom Devine appears in the
Appendix]
Mr. Pappas. Thank you, Mr. Devine.
I would now like to recognize Ms. Jacqueline Garrick,
Founder of Whistleblowers of America, for 5 minutes.
STATEMENT OF JACQUELINE GARRICK
Ms. Garrick. Thank you. I am truly grateful to be here
today, because it could not have happened without the support
from this Committee over my fraud, waste, and abuse disclosures
with Defense suicide funds and VA contracts. Since then, I have
experienced several forms of retaliation, including threats to
stop speaking out.
It was a frightening and lonely time, until I compared
notes with other employees. When we realized the potential
conflicts and favoritism in contracts, we jointly filed with
the DoD and VA OIG on Veterans Day 2016, because the lives of
my fellow veterans' matter. But other than VA case numbers,
nothing, until the OIG came to my home a day after this
Committee got involved. I gave them documents, emails, and
witnesses. I believe investigations are still ongoing.
As VA underperforms in high-risk areas, veterans are dying
by suicide, denied benefits, benefits take years to adjudicate,
staffing shortages continue, while money is misspent, ill-
managed, or stolen. Reporting is asking to have your career
killed and your life threatened; that is unfair.
Whistleblowers of America, founded in 2017, has heard from
almost 200 VA employees who suffer retaliation, harassment, or
discrimination, similar to the 33 percent of the VA workload at
OSC.
OAWP has not acted in the way we thought to assist,
support, and guide whistleblowers through a protected process
and provide a decision algorithm for reporting. Instead, VA
employees are ignored, attacked, or regulated to obscurity when
they try to engage in process improvements, seek ethical
decisions, protect funding, and solve patient care challenges.
A closer look shows that whistleblowers experience
violence, gas-lighting, mobbing, shunning, marginalizing,
devaluing, double-blinding, blackballing, and accusing. These
toxic tactics are features of workplace traumatic stress and
can lead to PTSD, depression, and suicide. Employees are going
to OAWP hoping for protection; instead, it causes more harm
because of deficiencies in timeliness, unfair processes, and
improper staffing.
OAWP has not published a policy. It asks the same chain to
investigate the wrongdoing it has been accused of.
Investigations are weapons for gathering information for later
legal action. AIBs are often conducted by untrained coworkers,
at times the investigator and the proposing official is the
same, or the deciding official was named in the complaint.
Doctors who are reported to the National Practitioner Data
Bank, even when no charges have been substantiated, have no
recourse. Practitioners leave the VA out of fear. Vet Centers
staff were reminded that President Trump curtailed their due
process rights and can be fired at any time.
Instead, OAWP should be focused on advocacy and a duty to
assist by protecting veteran employees over denials, privacy
invasions, restrictions from treatment, and disability
compensation targeting. No settlement should contain a non-
disclosure agreement; transactions involving taxpayer money,
Government resources, and the welfare of veterans should remain
in the public domain. It should require union reps be
consulted, since not every employee even knows they are covered
by a bargaining agreement.
It should clarify its website data. How are whistleblowers
being assisted? How many adverse actions involve veterans?
The Kirkpatrick Act mandated agencies report employee
suicides; however--Mr. Bergman, you asked about this--OSC says
none were made. If suicide prevention is the number one VA
priority, then shouldn't it care about its own workforce?
There are three main options for OAWP improvement: publish
a policy and transparent data; utilize independent, unbiased
staff, and sanction retaliators; or abolish it and transfer the
resources to OSC, or allow VA employees to take their cases to
civilian courts.
OIG. There are no mandates for OIG findings. Guilty
managers are not held accountable. Examples, OIG found that
$11.7 million of VBA money inappropriately went to Calibre, but
no action was taken to reclaim any of those funds or hold
managers accountable for wasteful spending. Or what happened to
the $6 million that went unspent for suicide prevention?
Senior executives with pecuniary responsibility must pass
background checks and hold security clearances. OIG should
oversee spending accountability, as with the $25 billion VECTOR
IDIQ with 68 companies performing management initiatives. How
is that going to be monitored?
Congress should expand penalty payments to the judgment
fund. Whistleblowers are out of pocket while wrongdoers are
defended by the Government at taxpayer expense. This is not
common sense. Legal aid authority could be expanded to support
VA employees. There has been a history of animosity between the
OIG and its leadership through criticism, intimidation, and
outside influence. We are concerned that emails outside of
official VA sources would not be accessible during discovery.
Whistleblower feedback is informative, but fear of reprisal
causes many to remain bystanders and not veteran advocates.
They suffer workplace traumatic stress, while senior officials
travel to Europe, attend NASCAR, and curry favor with
contractors. That is unfair.
To reduce stigma, Congress should authorize VA to host an
annual whistleblower award and highlight right-doing, and
should consider a national whistleblower memorial on the
grounds of the Capitol that demonstrates the lamplit pathway
many have taken in exercising their First Amendment rights.
That concludes my statement. I welcome your questions.
And I also just want to say hello to my USC social work
students who have been assigned to watch this testimony today.
So, thank you.
[The prepared statement of Jacqueline Garrick appears in
the Appendix]
Mr. Pappas. And I am sure they are still tuning in. I
appreciate your testimony, Ms. Garrick, and thank you to our
panel.
And I would like to now transition to the questioning
period of this and I will start by recognizing myself for 5
minutes.
You all referenced that complicated landscape that exists
for individuals who are whistleblowers, because there are a
variety of agencies across our government that are involved in
receiving information and investigating Federal employee
whistleblower disclosures. I am wondering, given that current
landscape, what can be done to more clearly and effectively
communicate to VA employees the best ways for them to disclose
instances of mismanagement, and to protect themselves from
retaliation and be able to identify retaliation in the first
place.
And that is for the entire panel.
Ms. Garrick. So I think that the idea that OAWP was
supposed to be set up for that, or that is how many of us
perceived it, they were going to be the source that helped
somebody walk through this process. As you have heard, you can
go to OAWP, I think Ms. Cloud in her testimony, her written
statement, describes 11 different opportunities to engage
internally before even going to OSC, MSPB, EEOC. There is no
decision tree algorithm that helps you walk through that. So
even though there is No FEAR Act training, it is--by no means
explains any of those processes to you.
So, again, I think we need a better understanding of what
OAWP is supposed to be doing--they need a policy--or we just
need to bolster up OSC and let them do their jobs by helping
whistleblowers from outside the agency.
Mr. Devine. Mr. Chairman, I think to kind of summarize the
themes and 19 of our coalition recommendations, one would be to
close the loopholes in reprisal protection, such as AIB
proceedings or referrals to licensing boards that can cause
blacklisting.
A second is to restore due process in internal proceedings.
The idea was to eliminate roadblocks to accountability, but
actually it has backfired, and the lack of due process is being
used to railroad whistleblowers out of the agency.
The third is to provide enforcement teeth and abolish the
conflicts of interest for the agency's checks-and-balances
institutions. That is kind of the core causes behind our
frustration.
Ms. Jones. And I would just add, I think, to your note of
ensuring that employees know about the different channels and
how they interact, I think there is massive confusion and I
think that is evident from the first panel, that employees
simply don't understand the different lines between the IG, the
OSC, and the Office of Whistleblower Protection.
And I would also just add that ensuring that the VA and its
IG are both certified under the Office of Special Counsel's
certification program, that is a separate program at the OSC
that allows--or that trains and ensures that training within
each agency is up to par, and my understanding is that they are
not currently certified.
Mr. Pappas. Okay. And I was going to follow up about
training by OAWP and how important of a tool that can be once
that matures, and I'm wondering if you can comment on the need
to ensure that is fully implemented.
Ms. Jones. Sure, absolutely. I believe when the Full
Committee heard from OAWP or the VA last year on the 1-year
anniversary of when the office was created, my understanding
from that was that they hadn't yet implemented all the training
requirements in the authorizing statute; that they had trained
certain HR professionals, but that the broad training had yet
to be implemented. And I would just again point out that they
are not--the VA, nor the IG, are not certified under the OSC's
program.
Mr. Devine. Mr. Chairman, there very much needs to be
training of OAWP in the Whistleblower Protection Act. There
doesn't seem to be a practice consistently familiar with its
provision. So many of the staff have come from institutions
where they spent their entire lives on assignment to conduct
what turned out to be retaliatory investigations against
whistleblowers. This accumulated a real bias. That doesn't
change with a new location and a new job description. They need
to get it.
Mr. Pappas. Thank you. Ms. Garrick, I don't know if you
want to respond to that; if not, I have another one.
Ms. Garrick. No, I think they covered it.
Mr. Pappas. Okay, thanks.
Just real quickly, we have been hearing a lot in other
areas of the VA about the need to have a steady hand at the
ship, ensure that we have permanent officials in place at
senior leadership positions. Right now, 48 percent of the
senior leadership positions within the VA are held by
individuals serving in interim or acting roles. In your
experience, does this have an impact on the picture around
whistleblowers and a culture of retaliation?
Ms. Jones. I mean, I would just say, you know, a high
turnover rate can be troubling for many reasons and one of them
is sort of a lack of institutional buy-in at the top about
changing the culture of retaliation, ensuring that the people
who are leading agency are determined to make the change. Where
there is a high turnover, I mean, that becomes less clear if
who they are placed with will really understand the underlying
culture of retaliation and whether they would be, you know, as
determined as others to ensure that there is reform.
Mr. Devine. Mr. Chairman, the lack of permanent
appointments certainly has had a destructive impact, but the
problems go long before that current phenomenon.
I would say there are three basic causes that we have
identified. The first is that this agency has an almost
uniquely feudal structure, kind of bureaucratic barons have far
too much authority, and the national office has been frustrated
when it tried to do the right thing.
Second, there is a culture that allows those barons to put
their own personal self-interest above the agency's mission of
patient medical care or the rule of law.
And, finally, there has been a conflict of interest in
almost all of the agency's institutional mechanisms to hold
itself accountable. And those are three strikes against an
effective mission.
Mr. Pappas. Thank you.
Ms. Garrick. So, if I may? I have listened to this
Committee and I have attended a couple of hearings over the
last few months, and it just strikes me that when you don't
have the right leadership or you have inexperienced leadership,
or you have a revolving door of leadership, what you are losing
is expertise and a commitment to the right-doing part of all of
this.
And I wish Miss Rice was here, because she asked a really
good question about the why. The why comes down to the money
and, if you can't follow the money and you don't know how to
manage the money, I mean, that is the trickle down. That is
where these contracts, this IDIQ, this enormous amount of
money, where is it all going to go? How do you follow it? How
do you put something on contract?
I mean, I have heard this talk about when you obligate
money, execute money, budget money, those are all different
things and they mean different things in the world of
government contracting. And, I mean, I have spent 16 years, a
lot of that in a management position at VA, at DoD, up here
with the congressional staff, I understand how the money flows.
And if you don't understand the difference between an award, a
deliverable, a sole source, a sub and a prime, a purchase
order, all of those things are how the money gets manipulated
and, trust me when I tell you, there is your reason for
whistleblower retaliation.
The panel that was up here, they are at the bottom
receiving end of when this money trickles down and when it
doesn't trickle down, and that is the incentive to cover all
this up, that is the incentive to retaliate, follow that money.
Mr. Pappas. Thank you very much.
I would now like to recognize General Bergman, the Ranking
Member, for 5 minutes.
Mr. Bergman. Thank you, Mr. Chairman, and thanks to the
panel for being here. You bring very broad and unique and
necessary insights to the process.
The first couple questions are going to be simple yes or
no. So we are going to start with Ms. Jones, walk across, you
know, yes or no.
Whistleblowers can file separately with the Office of
Special Counsel, OAWP, and the IG, so three different ways.
This has the potential to cause duplicative work and delays
work on other disclosures. For each of these organizations, do
you agree or not that with multiple offices potentially
investigating the same event this may not be very efficient or
effective?
Ms. Jones. Yes.
Mr. Devine. Yes, I do, sir.
Ms. Garrick. I agree.
Mr. Bergman. Okay, the second question. Again, just simple
yes or no. Have you met with the Assistant Secretary Bonzanto
in OAWP to share your ideas for improving the whistleblower
process?
Ms. Jones. No.
Mr. Devine. Yes, before she received that current job
officially.
Ms. Garrick. I did in February.
Mr. Bergman. Okay, very good.
Ms. Jones--the yes-or-nos are over, okay? We don't have to
go down the line. Ms. Jones, in your written testimony you
reference OAWP statistics concerning the disciplinary rates of
senior executives and senior leaders compared to the GS-1
through GS-6 category to suggest that the distribution is
inequitable against the lower grades. What specific
distribution of discipline does POGO believe would demonstrate
equity and how did you arrive at that number?
Ms. Jones. Well, I mean, I can't state a number
specifically, but that is--I would love to work with the VA in
terms of figuring out best practices and how we can get there,
and with this Committee as well, but my priority would have
been any change between 2014 and now.
So my understanding and part of the reason of standing up
this office within the VA was to change those numbers, to
ensure that senior leaders were held accountable, but
unfortunately, based on the numbers that you quoted, there
hasn't been that change. And I believe that 0.1 percent
represents only seven individual cases of discipline against
senior officials.
Mr. Bergman. Well, you know, as we struggle with numbers,
because sometimes you can look at total numbers or percentage
of the population, and it's kind of like in some cases, you
know, apples and oranges. So, you know, you have got--I think
at the SES level, you have got like 630 SES positions, so that
is about two tenths of a percent of the workforce, whereas the
G-1s through 6s I think are roughly 54 percent of the
workforce.
So we want to make sure that, if we look just at a raw
number as opposed to a percentage, try to get, you know, a
relative perspective on that, is there an inequity or is there
not.
And also, again, Ms. Jones, you described what you referred
to as a toxic culture in your dealings with former Acting
Inspector General Richard Griffin in 2014. The current
Inspector General, Michael Missal, who has appeared before this
Committee several times, assumed the office in May of '16. What
are your observations about the IG's conduct in the handling of
Whistleblower Protection under Inspector General Missal, and do
you believe that the IG has improved under his leadership? And
feel free to expand on that.
Ms. Jones. Sure, absolutely. I was heartened to see the
Inspector General willing to push back in access to documents
from OAWP. You may recall there was a bit of a public spat that
went on between the IG and the Secretary that I believe has
since resolved. That is the kind of push-back that POGO likes
to see from IGs, those who are independent and willing to
investigate properly to make sure that things are operating as
they should be.
I understand that there is--there has been recent
complaints from whistleblowers about--I am not sure if those
are from the IG specifically or whether it is more broadly at
the VA, but the IG may well be involved--that those
whistleblowers have had their identities revealed to the
agency. Now, I am not sure of the IG's involvement in those
cases. I think it would be--
Mr. Bergman. Well, your articulation of that, you know,
again, when you have multiple agencies to report to, to
interact with, it can be confusing at times. And, anyway, thank
you for your answers.
And, Mr. Chairman, I yield back.
Mr. Pappas. Thank you.
I now yield 5 minutes to Mr. Cisneros.
Mr. Cisneros. Thank you, Mr. Chairman. And then you all for
being here today.
Ms. Jones, I want to kind of follow up on something you
said regarding senior leadership and their disciplinary
actions. I believe you said that senior leaders are permitted
to investigate themselves and make their own determinations on
those investigations whether they are guilty or not. Is that
true at all facilities, you know, whether it be a hospital, any
VA facility, or is it--I mean, does it differ anywhere?
Ms. Jones. Well, that information comes from the GAO's
report that came out I believe last year that looked at all VA
whistleblower conduct, and it looked specifically at what has
happened since OAWP has been stood up, the Office of OAWP. I
can't speak to whether it is happening everywhere, but, I mean,
the line managers investigating themselves to misconduct, I
mean, obviously that should be of a huge concern to veterans,
to this Committee, and to the taxpayers, to be perfectly frank,
in how rigorous those investigations are.
Mr. Cisneros. Ms. Garrick, you were kind of shaking your
head as a yes there. I mean, can you add to that answer?
Ms. Garrick. So, as she is talking, just example after
example is sort of popping into my head about people who have
told me just that same thing, where they have gotten either the
proposing official is the same person and the deciding official
has been labeled in the corruption charges in the first place.
So we don't see a lot of unbiased, independent investigations;
these things all happen within the same chain of command. OAWP
sends the letter to do the investigation right back to the
facility.
And this is--we have been talking a lot about the medical
centers, this happens at the regional offices and at VBA as
well. I mean, I see the same thing that from the top down it
ends up going right back into the lap of the supervisor who has
been the--more likely than not the perpetrator of the
wrongdoing. So that is not fair and unbiased.
Mr. Cisneros. All right. Ms. Garrick, I have a question for
you, something that you said in your testimony. You said the
OAWP has no whistleblower policy; can you expand on that?
Ms. Garrick. Correct. So near as we have seen, and we have
asked a few times now, to see a published policy, a policy
statement, an employee handbook, something that delegates the
roles and responsibilities, and we have not been--nobody has
shared that with us anyway. So, if there is one, I am unaware
of it. But really something like a standard operating
procedure, an SOP, that outlines roles, responsibilities, and
helps to even manage some of these expectations.
My understanding in like some of the data they reported
that I have questioned is they say about 50 percent of the
people that come to this office aren't whistleblowers. Well,
who are they? Are they veterans? Are they, you know, vet
patients, are they family members? Are they volunteers? Who is
that 50 percent? We have no key for that data to know even what
they are reporting on. It just makes no sense. And they are not
reporting on how they assist or what kind of retaliation they
are documenting. I mean, there is a laundry list of things I
would love to see in a policy.
Mr. Cisneros. Okay. And my last question is, what agency or
government department out there would you say has a good,
strong whistleblower program that the VA could probably emulate
out there? Is there one?
Mr. Devine. Sir, we represent whistleblowers throughout the
executive branch, and I am not aware of such an animal. I
believe the Office of Special Counsel has been making a good
faith effort, but it is a relatively small office, just over a
hundred employees to guide the system for the whole executive
branch, and all they can do at most is kind of make a point in
cases that are cut-and-dried, kind of low-hanging fruit, to
send a message to the rest of the labor force. They don't have
the resources to be a reliable source of protection. They are
independent and we haven't seen a conflict of interest there
like all the internal VA structures.
But we need a safety valve where whistleblowers at the VA
and throughout the executive branch can have the same rights as
corporate employees who blow the whistle on abuses of the
public trust, to go to court and defend themselves in a jury
trial against retaliation.
Mr. Cisneros. All right. With that, I yield back my time.
Thank you for your testimony.
Mr. Pappas. Thank you.
I now recognize Mrs. Radewagen for 5 minutes.
Mrs. Radewagen. Thank you, Mr. Chairman.
Mr. Devine, in your testimony you refer to OAWP's mentoring
program. How can this program help whistleblowers if it is
reinstated? And, conversely, how can this type of mediation
potentially fall short? I believe you referenced the cases of
Mr. Rodriguez and Mr. Wilkes as examples in your testimony.
Mr. Devine. The mentoring program either delivered some
partial results or made a best effort to in a number of the
cases that I discussed. The idea behind it is that, as an
alternative to litigation, OAWP would search out fresh starts
for whistleblowers with managers who would welcome their
perspective instead of being threatened by it. And it really
has some very effective initial results and we don't know why
OAWP canceled it, but I think it is very unfortunate.
Our frustration with the mediation process has been at the
Office of Special Counsel, which has tried to resolve disputes
through negotiation, and I think the reason that it hasn't
worked is that the Office of Special Counsel doesn't have the
resources to hold those agencies accountable when they play
games rather than in good faith trying to discuss a resolution.
And so we have had too many experiences where they just kind of
string out the process for 6 months to years in bad-faith
negotiations that prevent the whistleblowers from actually--the
OSC from investigating the wrongdoing or the whistleblowers
from having a day in court.
So instead of being a constructive alternative to conflict,
it has ended up just sustaining it and spreading it out. There
really needs to be accountability for this agency.
Ms. Garrick. So, ma'am, if I can add to that.
Whistleblowers of America is a peer-support program that I
started because I was an Army social work officer, we have used
peer support very successfully with dealing with combat vets,
PTSD, suicidality. And so when I started Whistleblowers of
America it is using some of those evidence-based strategies to
deal with these kinds of issues, building resilience, problem
solving, that I think a mentorship program could really, really
help VA employees work their way through this process. And
maybe eliminate some of the stress, what I call workplace
traumatic stress, it could be really eliminated, and some of
the damages that you are hearing people talk about that have
happened to their psycho-social life I think are the things we
can maybe do a better job of as well and mitigate through a
more organized, structured program.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
Mr. Pappas. Thank you.
I now recognize Miss Rice for 5 minutes.
Miss Rice. Thank you, Mr. Chairman.
So I believe the statistic that, Mr. Devine, you might have
said, that 30 to 40 percent of all whistleblower claims come
from the VA.
Mr. Devine. Yes, ma'am.
Miss Rice. So I think this kind of takes off on what my
colleague Mr. Cisneros was asking, who does it right? Who
handles whistleblowers in the right way? Is there any Federal
agency that does? Or are they all handled the same way, through
the same pipeline?
Mr. Devine. The structural problem is that whistleblowers
in the civil service are primarily dependent upon remedial
investigative agencies that don't have the resources to provide
consistent relief. They can have--maybe do an in-depth
investigation over a period of 1 to 2 years for 10 percent or
less of the complaints that come in and that is just a token
compared to the extent of retaliation. We need to restore
credible due process rights.
And the Merit Systems Protection Board, the administrative
body that defends the merit system, currently is not functional
and it is many, many years from getting--from healing. They
haven't had a board that could issue final decisions in 3
years--
Miss Rice. Why is that?
Mr. Devine [continued]. --in over 2 years--
Miss Rice. Why?
Mr. Devine. That is because the Senate blocked confirmation
of appointments during the end of the Obama administration and
the Trump administration didn't make them. We finally--
Miss Rice. But that is a fix, that is a potential fix that
could be made.
Mr. Devine. Oh, it has just paralyzed enforcement of the
merit system. We are on the verge of getting a board again, but
they have a 2,000-case backlog in the interim over that 2 and a
half years, and even that board is just--it is really kind of
minor league due process compared to the access to court in
jury trials that corporate whistleblowers have in every
corporate whistleblower statute that has been passed in America
since 2002.
So we really have second-class enforcement. And even
agencies like the Office of Special Counsel that I believe are
making best efforts can only have token impact.
Miss Rice. So would it be appropriate to put a time frame
on how long a whistleblower investigation should take?
Mr. Devine. I'm sorry?
Miss Rice. How long--you are saying these drag on and on,
these investigations, when a whistleblower makes a claim. I
mean, what is the optimum period of time that an investigation
like this would take?
Mr. Devine. Well--
Miss Rice. Because it seems like the insinuation is that
they drag it out and they drag it out for their own purposes
and keep all of the whistleblowers in a state of perpetual
limbo.
Ms. Garrick. But I think they do that on purpose.
Miss Rice. Well, that is what I am asking.
Ms. Garrick. I mean, it is intentional to drag it out, even
though there are--you know, there are things that say there are
180 days or 240 days. They will go beyond that--
Miss Rice. So those are routinely being violated? There is
no time frame--
Ms. Garrick. Oh, absolutely.
Miss Rice. Yeah.
Ms. Garrick. Because here is the rub: The Government has
all the time in the world, their attorneys are on--
Miss Rice. Yeah, yeah, yeah--
Ms. Garrick [continued]. --you know, they hire their own
attorneys--
Miss Rice. --they are on staff; they are on staff.
Ms. Garrick [continued]. --they are on staff.
Miss Rice. Right.
Ms. Garrick. I mean, I went to an MSPB hearing, five
Government people showed up and one guy pro se. Most of the
people I deal with end up pro se, because it costs hundreds of
thousands of dollars to go out and hire a really good attorney.
Miss Rice. Yeah, yeah. No, it is totally skewered. There is
no--can I just ask you another question, Ms. Garrick? It seems
to me crazy that--
Ms. Garrick. Yes.
Miss Rice [continued]. --these--that the potential
wrongdoers are the ones that ultimately are making the decision
as to what happens with the whistleblowers?
Ms. Garrick. Correct, and they are--
Miss Rice. How can that be?
Ms. Garrick [continued]. --by the Government--
Miss Rice. How can that--I mean, it seems to me like there
should be a separate track of supervisors that assess a
situation we are not intimately involved in and don't have a,
quote-unquote, ``dog in the fight.'' Although you could argue
that anyone at VA has a dog in the fight of keeping this
information from whistleblowers hidden.
But how can we make that better? Because that is just a
perversion of the whole system, it seems to me.
Ms. Garrick. Well, and that is where I do believe there
needs to be a lot more independence. And, I mean, if you look
at the budget for OSC versus OAWP, just OAWP's budget and you
compare it to the OSC budget, you will see they are about the
same when OSC has the workload for the entire Federal
Government. So there is this disparity in how things get funded
across the Government, whether it is at the OSHA budget, the
EEOC budget.
So there is a lot of disparities in how the Federal
Government funds these programs that are supposed to help all
these whistleblowers. And there is no algorithm that says go
here or go here, as opposed to sending you to three and four
different places while you are out-of-pocket--
Miss Rice. Yeah.
Ms. Garrick [continued]. --and you are on your own time,
because you can't whistle blow on the Government's dime, so--
and there is very little help and support for that.
Mr. Devine. Congresswoman, the conflict of interest is
perhaps most fundamental with OAWP. They should be an
independent watchdog within the agency, but in practice their
decisions are controlled by the Office of General Counsel; its
mission is to defeat whistleblower claims. The conflict of
interest could not be more hopeless and OAWP needs to be freed.
Miss Rice. These are all really great suggestions. I want
to thank Mr. Chairman for holding this hearing and I want to
thank all of you. We need to get this right, because this is
just--there are so many wrongs that are glaring and there is no
reason why we can't fix them.
So, I just want to thank you all, and I yield back.
Mr. Pappas. Thank you.
Well, I do want to thank each Member of our panel for
sharing their perspective with us today. It was really
illuminating testimony that I know we have to continue to
contend with as we move forward as a Subcommittee, so I really
appreciate your time.
I do want to recognize General Bergman for a closing
statement.
Mr. Bergman. Well, I want to thank everybody for coming and
the testimony, the questions and the answers. This is an
extremely important issue that we are dealing with here to keep
the environment open to make sure that good people can get
their voices heard and not be limited or inhibited.
And I just wanted to, you know, thank the Chairman for
keeping the hearing open and in recess at our request, the
minority's request. And there is just the letter--you know, the
no job is complete until the paperwork is filed, but I just
wanted to thank you in advance, and we have procedurally here
to make sure that we get the second panel in here as soon as
possible. And, again, I thank the Chairman for his agreeing to
do that.
And I yield back.
Mr. Pappas. Well, thank you, General Bergman. And I
absolutely agree, it is clear that this can't be the end of the
conversation and we need to move forward expeditiously to
continue it, and I am committed to doing that.
I would like to underscore the bipartisan nature of the
work of this Committee and the issues regarding whistleblowers.
The Subcommittee will hold additional hearings on the need for
VA to listen from whistleblowers and protect their rights and,
as I alluded to earlier, we will hold this hearing open. I
think it is clear today that all the whistleblowers who have
stepped forward are doing an incredible service to our
veterans. So, on behalf of the Subcommittee, I want to thank
the three individuals who appeared on the first panel for all
of their work and for being with us here today.
Under the Committee Rule 3(c)(F)(5), the minority witness
panel will appear subject to the call of the chair. The
Committee will remain in recess until such time.
[Whereupon, at 11:56 a.m., the Subcommittee adjourned
subject to the call of the chair.]
A P P E N D I X
----------
Prepared Statement of Dr. Katherine L. Mitchell
Section I: Introduction
My name is Dr. Katherine L. Mitchell. I am a board-certified
internist who is currently employed at the Veterans Integrated Service
Network (VISN) 22 office in Arizona as a Specialty Care Medicine
consultant. My VA professional career has spanned 21 years in various
roles including staff nurse, emergency department staff physician,
emergency department director, and post-deployment clinic medical
director. In 2017 I also completed the 2 year VA Quality Scholars
program wherein I learned the fundamental basics of quality management,
research design, project implementation, and change theory.
I became a nationally known VA whistleblower in May 2014 because I
was the first, actively-employed VA front-line staff member to speak
publicly regarding the Phoenix VA waiting list manipulation, lack of
timely Phoenix VA primary care appointments, substandard Phoenix VA
triage nursing care, and other health and safety issues which were
potentially applicable to the entire VA system.
I initially testified in front of the House Committee on Veterans'
Affairs (HVAC) in a ground-breaking July 2014 hearing regarding VA
whistleblower retaliation. I subsequently testified three additional
times in front of congressional committees regarding various topics
including my analysis of Phoenix VA patient care deaths on the waiting
list, national VA health care and oversight issues, and subsequent
improvements at the Phoenix VA Medical Center.
Since the VA access crisis was identified, I have seen great
strides made in VA access and patient care. Although remaining cracks
in the VA system must be addressed, I strongly believe the VA currently
provides millions of high quality patient care episodes every year in a
manner that in many ways is superior to private care.
I had hoped my July 2014 HVAC testimony would help jumpstart a
fundamental shift in VA culture wherein all employees would be
encouraged by VA leadership to identify problems without fear of
retaliation. Unfortunately, I believe VA leadership at all levels still
continue to perpetuate a culture of whistleblower retaliation even as
the VA publicly decries such tactics and rolls out new initiatives to
encourage more employees to speak up about VA problems.
Specifically, in my case the VA whistleblower retaliation against
me has continued for most of the last 5 years despite signing a
September 2014 settlement agreement intended to resolve such unjust
treatment. Although I have made multiple direct and indirect attempts
to fight the retaliation, I have not yet found any successful method to
stop it.
Available avenues to formally address VA whistleblower retaliation
have been exceptionally slow and thus not able to provide any prompt
relief.
In October 2018, after the Office of Special Counsel's preliminary
investigation found credible evidence of the ongoing whistleblower
retaliation against me, I entered into mediation with the VA via the
OSC alternative dispute resolution process (ADR). That mediation is
still ongoing because the VA no longer has an expedited mediation
process in place.
In the remainder of this written testimony I will outline examples
of ongoing VA whistleblower retaliation against me since signing a
September 2014 settlement agreement, briefly describe my attempts to
stop such retaliation, and discuss my concerns regarding the VA Office
of Accountability and Whistleblower Protection (OAWP). I will also
propose potential remedies for assisting VA whistleblowers, positively
influencing VA culture, and strengthening federal whistleblower safety-
nets.
Please note that I am not the only nationally prominent
whistleblower experiencing persistent retaliation after congressional
testimony. Dr. Christian Head who testified with me in the July 2014
whistleblower hearing has had ongoing, severe VA retaliation against
him since appearing in front of the HVAC and other congressional
committees.
If the VA has no qualms about subjecting prominent national
whistleblowers to further retaliation, it stands to reason that the VA
could target lesser known local whistleblowers with even more
enthusiasm. Since Dr. Head and I have been unable to get relief from
retaliation in the last 5 years, I believe most other whistleblowers
will not fare any better.
Section II: Whistleblower Retaliation against Dr. Mitchell - Examples
from 9/2014 to present
Pertinent Background:
In September 2014 I signed a settlement agreement with
the VA in order to resolve the whistleblower retaliation against me. As
part of the settlement agreement process, I was offered a new position/
training as Specialty Care Medicine consultant at a VA Veterans
Integrated Service Network (VISN) office in Arizona and allowed to
enter the 2-year VA Quality Scholars program.
As per the job description given to me as part of the
settlement, the Specialty Care Medicine consultant position/associated
on-the-job training would allow me to directly influence the quality of
patient care by participating in the oversight of quality assurance,
risk management issues related to poor quality care, and utilization
review at multiple facilities within a 3 state region. The VA Quality
Scholars program would enable me to learn the basics of quality
management, research design, quality project implementation, and change
theory.
The VISN office has 3 main divisions: medicine/CMO (Chief
Medical Officer), quality/QMO (Quality Management Officer), and
business/DND (Deputy Network Director). My Specialty Care Medicine
position fell under the VISN medical/CMO division. Although the VA
Quality Scholar position was unique in that it was not assigned a
division, it clearly aligned with VISN quality/QMO division activities.
When I started working at the VISN office, I hoped I
could resume my VA professional career trajectory without the
institutional stigma of being a whistleblower. I immediately observed
that staff were very distant and rarely spoke to me. Although several
communicated privately to tell me they were glad I brought attention to
VA issues, I believed my whistleblower status was causing most staff to
be inappropriately apprehensive. I decided the best course of action
was to consistently demonstrate my professional expertise, work ethic,
and interpersonal skills. By doing so, I hoped I could develop
effective collegial relationships and reassure staff that I was a
trustworthy, reliable individual who would be a valuable asset to the
VISN office.
By early 2015, after realizing VISN leadership was not
enthusiastic about my presence in the VISN office, I was not surprised
by their subsequent retaliatory behaviors towards me. In 2016, when
VISN-level retaliation against me never abated, I tried to obtain an
alternative VA position outside the VISN office. In the process of
searching for a new position in 2017, it became evident that the
retaliatory actions against me were also occurring at the level of VA
Central Office (VACO).
Examples of Ongoing VA Retaliation against Me:
For purposes of brevity, I have summarized only a few episodes of
the countless episodes of whistleblower retaliation I experienced from
late 2014 through March 2019. These examples are provided in rough
chronological order, not in order of severity.
1. From 2015 through the date of this testimony VISN leadership has
prohibited me from performing the primary duties of my Specialty Care
Medicine job description which was provided to me as part of the
September 2014 settlement agreement with the VA.
I signed the settlement agreement and specifically accepted the
position based on the official duties contained in formal ``position
description''. However, VISN leadership has never allowed me to
officially perform any of primary duties listed on the job description
that was provided as part of the legally-binding 2014 settlement
agreement.* Those primary duties included coordination of and
involvement in quality assurance, risk management, utilization review,
and clinical cost analysis.
*Note: Since 2014, even though I have been prohibited from
officially performing risk management activities, I have nonetheless
addressed reports of patient care problems that have been brought to my
attention privately by hospital employees who felt confident I would
not disclose their names. Those employees contacted me because they did
not feel comfortable reporting their concerns using facility chains-of-
command or the OIG because the employees feared whistleblower
retaliation.
Responding to such informal reports clearly fell within my
Specialty Care Medicine duties even though leadership would not
officially allow me to officially perform those duties. Each time I
received an employee's report, I maintained employee confidentiality,
remotely researched the patient care chart to gather data, analyzed the
data to determine if the employee's concerns were valid, and wrote a
formal summary listing concerns/conclusions about patient quality. I
electronically provided each summary to the VISN leadership for further
follow-up. Though leadership almost never provided me any updates and
were not always pleased with my activities, I believe my findings did
receive VISN attention. I am aware from subsequent conversations with
involved hospital employees that my efforts have resulted in
significant changes in policy, consult processes, and even the removal
of a grossly substandard physician.
2.In December 2014 after I found gross factual errors in a
facility's response to an Office of Inspector General (OIG) inquiry,
VISN leadership never allowed staff to share OIG inquiries/facility
responses with me again.
In December 2014 a VISN QMO staff member need the assistance of a
physician to review the accuracy of a small batch of facilities'
responses that appeared to be problematic. Because I was the only
physician on-duty that day, the VISN staff member asked for and
subsequently received my assistance. Although the majority of responses
to each OIG inquiry were accurate, I found one facility response which
was clearly contrary to facts documented in the patient's chart. I
summarized my findings in writing and forwarded them to the QMO
division and QMO staff member.
Since that time I have never been allowed to review any facility
OIG responses even though review of such responses falls within the
Specialty Care Medicine consultant position description I received when
I signed the settlement agreement. The QMO employee was told not to
share OIG hotline responses with me again.
3.From 9/2014 through 2018, various VISN leadership actively
discouraged staff from associating with me.
From conversations with VISN co-workers I learned VISN division
supervisors would tell each other which VISN staff were seen speaking
with me. Two division supervisors openly instructed staff not to
provide any information of any type to me, even if that information was
just routine, common knowledge. One staff member who persisted in
speaking with me was moved to an office far away from my cubicle.
4.In FY17 now-former VISN 22 leadership significantly prevented me
from obtaining the full benefit of my VA Quality Scholar (VAQS)
training program for 17+ consecutive weeks.
Although other VISN staff did not have to have prior approval for
projects, I was not allowed to start VAQS projects examining the
quality of patient care without submitting a project proposal and
obtaining approval from senior VISN leadership. In a VISN office where
leadership routinely made decisions within a matter of days on any
subject, 2 senior leaders deliberately impeded my progress in the VAQS
program by taking an extraordinarily long time (11+ weeks) to consider
one of my VAQS project proposals before rejecting it. It was not until
1/25/17, 11+ weeks after my proposal submission, I was told my project
proposal was rejected because ``it was not a VISN priority'' even
though the project was based on a high priority VA directives to
address women's health care in VA emergency departments.
At any time during that 11+ weeks those senior leaders easily could
have informed me that my VAQS project was denied and allowed me the
opportunity to present another project. However, they inexplicably
chose to ignore my email requests for follow-up on my project proposal.
Because I could not get approval for my VAQS project from VISN
leadership, I missed 11+ consecutive weeks of opportunity to be working
on a patient care project or projects that would have allowed me to
work at my full potential as a VAQS and Specialty Care Medicine
consultant.
On the date I was told my project was rejected, I was also told I
was being removed from the VAQS program because I had not provided my
confidential settlement agreement to VISN senior leaders. It would take
another 6 weeks to be reinstated to the VAQS program through the
intervention of the Office of Special Counsel.
5.In violation of the 2014 settlement agreement, in January 2017
now-former VISN leadership suddenly removed me from the VAQS program
because I declined to provide a confidential copy of my 2014 VA
settlement agreement which the VISN Director had inappropriately
requested.
On 1/25/17 now-former VISN leadership informed me that I was being
removed from the VAQS program by VISN leadership because I refused to
provide a copy of my confidential 2014 settlement agreement wherein the
VAQS program eligibility was discussed. I was told by the VISN director
that since I had refused to provide the settlement agreement, she had
no ``proof'' that I was still eligible to be in the VAQS program.
I immediately stated I could ask the Office of Special Counsel
(OSC) to contact her immediately to verify my eligibility, but she
declined and stated again that I was prohibited from further
participation in the VAQS program. As a VISN director, she should have
known the process to get verification of my VAQS status from VA Central
Office/VA legal counsel and the restrictions on demanding a copy of a
confidential OSC settlement agreement.
The VISN director never told me prior to 1/25/17 that she required
me to establish my eligibility. If she had communicated that to me
prior to 1/25/17 I would have contacted the OSC to intervene to provide
the appropriate verification of my VAQS eligibility.
6.A now-former direct supervisor gave me impossible performance
goals in January 2017. Although I formally voiced objections, he still
did not provide timely revisions to those impossible goals for 2
months. Unfortunately, many of the revisions were inadequate and
rendered most goals essentially impossible for me to achieve within the
remaining FY17.
I was first notified of the FY17 performance goal criteria by my
supervisor on 1/20/17. The deadline for completing all criteria was 9/
30/17. The fiscal year 2017 (FY17) performance goals I was initially
given were completely unrealistic/unachievable. (Note: Performance
goals are different than the annual proficiency criteria on which I am
rated.)
Among the mandatory requirements to which I would be held in order
to be viewed as fully meeting performance goals included publishing a
minimum of 5 peer reviewed journal articles in the timespan between 1/
20/16-9/30/17 (a standard to which no other VISN staff in the nation is
held to and which would not be possible even for a full time academic
researcher working alone), improving the access SAIL scores by a full
quintile in 5 VISN facilities (an achievement that the entire VA using
all available resources for the past 2 years had not been able to do in
any VISN in the entire country), and improving the health care
associated infection SAIL metrics a full quintile simultaneously in all
8 VISN facilities (an equivalent achievement never done in any VISN in
the whole country since SAIL began).
The VISN management repeatedly insisted in the 1/25/17 meeting that
the performance goals were reasonable even though anyone with basic
knowledge of SAIL data/publications would know that the performance
goals grossly violated VA Handbook 5013, Performance Management
Systems. Although VISN management eventually stated I could submit
suggestions for alternative performance goals, the CMO quickly sent me
new performance goals which were only minimally changed. I sent an
informal grievance on 1/31/17 to VISN leadership. Subsequent
performance goals were eventually modified in approximately March 2017
but still were not achievable before the deadline of 9/30/17.
7.During FY17, VISN 22 administration refused to assign me to
relevant committees/workgroups pertinent to my quality activities or my
role as VISN 22 Specialty Care Medicine consultant.
My job title is VISN 22 Specialty Care Medicine consultant.
However, when VISN 22 reorganized its committees in mid-2017, VISN 22
management did not inform me that it had restarted the Specialty Care
Committee. Management chose not to appoint me to this committee. I only
learned of the committee's existence in January 2018 when I was doing
research on starting a VISN-level committee for specialty care.
Although my physician experience includes 9.5 years in a VA
Emergency Department, in 2017 and 2018 I have been excluded by VISN 22
administration from any membership on the VISN 22 workgroup to improve
Emergency Department flow throughout VISN 22 facilities. (It was not
until 2019 that I would be assigned to an Emergency Department project
to improve such flow.)
After completing a self-developed project that identified VISN 22
facilities' interfacility specialty care consult (IFC) processes and
points of contact (POC) for each step, I inexplicably was excluded from
membership on the workgroup looking at these processes even though they
were relying on my self-developed project materials to address IFC
problems.
8.At the end of FY17 I was told by my now-former direct supervisor
that she was not authorized to rate me any higher than ``fully
satisfactory'' on my end-of-year appraisal rating. Her statement was
illogical because, based on the definitions printed on the appraisal
rating form, I met the all the criteria contained in the definition for
``excellent'' and my VA Quality Scholar work supported a rating of
``outstanding''.
Not only did I meet all the criteria listed by the form for the
category of ``excellent'', my supervisor was also aware that I had
received an ``outstanding'' performance rating from my VA mentor in my
0.75 FTE VA position as VA Quality Scholar. My now-former supervisor
inexplicably stated she was not allowed to consider such outstanding
performance when providing a summary rating me as a full time VA
employee even though I occupied a 0.75 full-time VA position as VA
Quality Scholar and only 0.25 full-time VA position as Specialty Care
Medicine consultant. She stated I would have to submit a
reconsideration (formal complaint) of her summary rating of ``fully
satisfactory''. Although she was the primary rating official, she
inexplicably told me that she did not ``have the power'' to change my
rating. (I do not think she was retaliating against me but rather was
following retaliatory orders from more senior VISN leadership who did
not want me to be rated higher.)
I filed a formal complaint within the VISN office and eventually
was granted a rating of ``Excellent''.
9.In October 2017, shortly after a Washington Post reporter
submitted to VACO my statements about ongoing VA whistleblower
retaliation, the VA suddenly withdrew its offer of a short-term
assignment to the Office of Accountability & Whistleblower Protection
(OAWP) without providing any explanation.
In an August 2017 telephone meeting for 1.5-2 hours with a now-
former OAWP Executive Director I was informed that the VA Deputy
Undersecretary of Healthcare Operations and Management (DUSHOM) had
recommended an OAWP assignment for me because the OAWP had no
physicians assigned to it and was in great need of such medical
expertise to investigate cases involving physicians. During that
meeting I was offered me a 4-month assignment to the OAWP with the
ability to extend the detail. I accepted.
Because the OAWP Executive Director stated he wasn't sure how to
initiate the necessary paperwork for me to have the assignment, I told
him I would do the research to find out how to expedite it. Within 3
days on 8/25/17 I sent him an email telling him I was excited about the
opportunity to work with the OAWP and that I created the necessary HR
documents (attached to the email) in order to expedite the detail. He
replied on 8/25/17 ``Thank you for getting the process started. Since
this will be a unique detail, I'll work it with [VA Deputy
Undersecretary of Healthcare Operations and Management]''.
In September 2017, a Washington Post reporter was working on a
story regarding increasing VA whistleblower retaliation. When he
interviewed me, I told him VA retaliation was worsening. The reporter
subsequently submitted my comments about ongoing/worsening VA
whistleblower retaliation to VA Central Office (VACO) as part of
routine investigative process in order to get a response from VACO.
(The reporter's final article appeared on 10/30/2017.)
Shortly after the timeframe that the VA would have received
notification of my specific comments by the reporter, I received a curt
2 sentence email dated 10/25/17 from that same OAWP Executive Director
stating that he would ``not be moving forward'' with the OAWP detail.
This OAWP Executive Director never responded to my subsequent email
requesting an explanation of why the detail was suddenly cancelled.
Because the OAWP had ongoing significant need for medical expertise
in investigations, I believe the assignment offer was withdrawn because
VACO was displeased with my comments about VA retaliation. Since the VA
DUSHOM had recommended me for the position and since the VA DUSHOM
never again contacted me, it would have taken a senior VACO leader to
reverse the DUSHOM's recommendation for an OAWP assignment, stop DUSHOM
interactions with me.
10.In a January 2018 news article the VA falsely portrayed itself
as continuing to work on my case even though it has persistently
ignored my genuine attempts since 2016 to resolve its breach of
settlement agreement and had broken off all contact with me since
October 2017.
In a USA Today article published 1/16/18, the VA falsely contended
it was ``still working'' on my case. In fact, from October 2017 through
the time the VA entered mediation with me in October 2018 the VA
Central Office had no direct or indirect contact with me.
The VA has persistently ignored my attempts to resolve the breach
of settlement agreement. After it became evident that the VA materially
breached the 2014 settlement agreement, I tried to resolve the issues
informally via the Office of Special Counsel starting in approximately
mid-2016. After the VA stopped responding to the OSC in Spring 2017, on
6/23/17 I sent (via email delivery) a 6/23/17 formal ``Notice of Breach
of Settlement Agreement'' with a 30 day deadline for response to the VA
DUSHOM. The DUSHOM informally acknowledged receipt of this document in
an email dated 6/27/17. In the formal notice I requested a new position
to resolve the breach.
The follow-up communication I received was a brief email dated 7/
19/17 from the DUSHOM asking for my resume and indicating he was
``pursuing a couple possibilities'' for me. I promptly provided my
resume via email. Although I subsequently was offered a short-term OAWP
assignment with a potential for a longer position, that assignment
offer was later withdrawn.
Because I received no formal response from the VA to the initial
Notice of Breach of Settlement Agreement and because the material
breach continued/worsened, on 11/15/17 I subsequently submitted (via
email delivery) a second document entitled ``Second Formal Notice of
Breach of Settlement Agreement'' to the VA DUSHOM. This notice was read
by the DUSHOM on 11/15/17. This document gave a 30 day deadline for VA
response. The 30 day deadline passed on 12/15/17 with no formal or
informal response from the VA. As of June 2019, the VA has never
provided any informal or formal response of any kind to my ``Second
Formal Notice of Breach of Settlement Agreement''.
11.In January 2018, after I publicly stated I had been offered an
Office of Accountability and Whistleblower Protection (OAWP) short-term
assignment which had inexplicably been withdrawn, VACO countered with
an inaccurate public statement claiming that I had never been
officially offered a position with the OAWP.
In a nationally circulated January 17, 2018 USA Today article
wherein I stated I had been offered an OAWP position which was
subsequently withdrawn, the VACO inexplicably contended that I had not
ever been officially offered any type of position with the OAWP. VACO's
statement was not consistent with the conversation or emails from the
OAWP Executive Director with whom I had arranged the short-term
assignment.
12.From 2017 through 2018, even though I was assigned
responsibility for the Healthcare Associated Infections (HAI) at all
VISN 22 facilities, various VISN leadership would not include me in the
HAI communication loop between the facilities and VISN 22, provide
access to the facilities' HAI improvement action plans, or actively
involve me in ongoing HAI projects.
In early 2017 I was specifically assigned by the VISN 22 CMO
division to monitor the prevention of HAI in VISN facilities by
tracking trends and following up with front-line staff who would be
most familiar with root causes and interventions. However, in February
2018 I learned via emails that I had not been included the
communication loop between the VISN 22 DND and the facilities regarding
HAI. I learned of the communication loop only after receiving an email
wherein a facility questioned why it was being asked to do ``double-
work'' by providing HAI action plans to VISN 22 DND and separate
documents to me. Although I sent multiple emails to my chain-of-command
to be included in the activities/information flow, I was never allowed
to participate. HAI responsibility was removed from my responsibilities
in FY19.
13.Contrary to multiple OPM regulations, VISN operating procedures,
and VISN business needs, in late 2018 VA Central Office (VACO)
reportedly was able to deny me the ability to participate in medical
review of local VISN-level consult issues even though it is highly
irregular for VACO to be involved in such matters.
In 2018 I was struggling to fill my 40 hour workweek with
activities because the duties I was allowed to perform did not consume
all my duty time. In late 2018 I learned the business division of my
VISN was experiencing consult problems which could be resolved by
physician review. After briefly speaking to my supervisor, I
subsequently submitted an email to that supervisor formally requesting
the ability to have some of my work time assigned to the business
office to assist with these consult problems. Several months later I
learned my request had been inexplicably denied even though such duties
would clearly fall under the Specialty Care Medicine role and were
within my scope of practice as a board-certified internist.
In 2019 I inadvertently learned from an extremely reliable source
that my request had been forwarded to VACO for review and that VACO had
denied the request. Because it is extremely irregular for VACO to have
any input on the routine local assignment of a temporary job duty for a
local VISN-level employee, I believe I was being treated differently
because of my whistleblower status. I am extremely concerned that VACO
has been surreptitiously dictating my VISN job duties, or lack thereof,
since beginning my VISN position in 2014.
Section III: Lack of Timely Avenues to Stop Whistleblower Retaliation
against Dr. Mitchell
During these last 5 years, I have not been silent about the
retaliation against me. Although I have made multiple direct and
indirect attempts to fight the retaliation, I have not yet found any
successful method to stop this unjust treatment.
Since 2015, I have notified my immediate chain-of-command several
times in an attempt to obtain relief. Although 2 of my immediate
supervisors were blatantly retaliatory against me, I could not elevate
the existence of the retaliation to the chain-of-command because the
VISN Network Director, the top supervisor in the VISN chain-of-command,
had also taken retaliatory actions against me. I spoke with 2 of my
subsequent supervisors about VISN-level retaliation. However, although
they were sympathetic to my plight, they informed me that they could
not overcome VISN-level ``politics'' that were successfully blocking me
from performing any of the duties of the Specialty Care Medicine
consultant position or participating in VISN-level projects that were
in the scope of Specialty Care Medicine duties.
In late 2016 I contacted the Office of Special Counsel or OSC,
explained the retaliation, and asked if it could help me obtain a new
VA position. The OSC tried to resolve the problem by informally
engaging the VA, but the VA declined to participate. Because the OSC
was so backlogged, I was told the only way to receive further OSC help
was to file another whistleblower retaliation complaint and wait my
turn in line, a line that ultimately was about 15 months long.
In 2017 I also contacted several congressional offices and was told
they were referring all VA whistleblower matters to the new VA Office
of Accountability and Whistleblower Protection (OAWP). I contacted the
OAWP twice in 2017. When I submitted my request for OAWP assistance, I
even cc'd the now-former Secretary of the VA, an individual with whom I
had exchanged several patient care-related emails. I waited again - it
was a wait that would last 16 months to get a follow-up response from
the OAWP. The now-former Secretary of the VA never responded.
In June 2017 I also sent the now-former VA Deputy Undersecretary
for Healthcare Operations and Management (DUSHOM) a formal legal notice
citing settlement agreement breach and clearly outlined the
whistleblower retaliation against me. In the document I requested
assistance with obtaining a new position. I was elated when the DUSHOM
asked for my resume. As a result of his actions, I subsequently
received and accepted an offer of a new short term VA assignment with
the OAWP with the potential for a permanent position. Unfortunately,
the VA suddenly withdrew the offer after I gave a national newspaper
interview about ongoing VA retaliation. In November 2017 I sent the
DUSHOM a second formal legal notice of breach. Although the email read
receipt confirmed the DUSHOM read the notice, I never received any type
of VA response to my formal legal notice.
In October 2018, after the OSC's preliminary investigation found
credible evidence of ongoing whistleblower retaliation against me, I
readily entered mediation with the VA. That mediation is still ongoing
as of June 2019 because the VA no longer has an expedited mediation
process in place.
Please note: In 2014 the VA had an expedited mediation process for
OSC cases wherein credible retaliation was found. Although I am not
privy to the details of that confidential process or the rationale for
discontinuing it, that 2014 VA expedited mediation process was
successfully used to address the whistleblower retaliation against me
and other VA employees.
Section IV: Whistleblower Vulnerabilities when Interacting with OAWP -
General concerns & specific examples based on Dr. Mitchell's 2017 &
2019 experiences
In this section I describe my Office of Accountability and
Whistleblower Protection (OAWP) interactions in 2017 and 2019 and
explain how those interactions reveal weaknesses in OAWP processes.
Although the OAWP has recently come under new leadership, I remain
concerned the OAWP does not yet seem to have any effective processes in
place to ensure the complainants are not subjected to further
retaliation for using OAWP services. Further development and
transparency of OAWP processes would help address the concerns
discussed below.
1)Prior to the filing of an OAWP complaint, the OAWP triage intake
staff fails to communicate key information to complainants about the
potential for the complainant's supervisor and facility leadership to
obtain unredacted complaints/associated unredacted documents.
Based on my OAWP experiences described below and intermittent
conversations with other whistleblowers who have contacted the OAWP,
the OAWP intake staff routinely do not disclose to whistleblowers that
any documents submitted can potentially end up in the hands of the
whistleblowers' supervisors/facility leadership if A) the OAWP
initially deems the complaint not to meet the criteria for
whistleblower retaliation, B) the OAWP directly does an investigation,
or C) the investigation is referred by the OAWP to the VISN/VISN
facility associated with the whistleblower.
My OAWP experiences: On 9/8/17 I sent an email to the OAWP
notifying it that I was experiencing whistleblower retaliation. In the
9/13/17 email response the OAWP triage specialist wrote ``To ensure
your whistleblower disclosure and subsequent retaliation is addressed
appropriately, please respond to this email with information...'' She
then listed the information to include events, witnesses, and
documented evidence such as emails. She did not inform me whether or
not those documents could be shared with my supervisor/leadership.
Because the 9/13/17 OAWP email did not disclose the OAWP processes
for handling my complaint, I sent a follow-up email dated 9/13/19
seeking more information/explanation about those processes. I asked if
my supervisor, VISN office, or general VA leadership would have access.
I also inquired as to whom would be investigating the retaliation.
I received the OAWP triage specialist's partial response to those
questions on 9/15/17, but the triage specialist did not state who would
have access to my complaint and supporting documents. Because the
triage specialist did not answer that question, I replied on 9/15/17
asking her to confirm who would have access. In a 9/18/17 email, the
triage specialist sent me her phone number and subsequently spoke off
the record with me. In our conversation she vaguely indicated the
documents might be shared, but she would not officially confirm it.
In 2019 I received written confirmation from an OAWP staff member
that all whistleblower evidence documents could be shared with a
complainant's supervisors/facility leadership and that even previously
redacted information could be unredacted/given to VISN leadership (and
to the facility if the VISN requests that the facility investigate). In
a 2/5/19 email to the OAWP I wrote ``Can you verify that my chain of
command within VISN 22 (supervisor/VISN 22 leadership) would not have
access to the documents I submit to you?'' In a 2/5/19 email response
an OAWP staff member informed me in writing that ``[she] cannot confirm
that they will not see the documents .documents can be shared as the
investigation proceeds'' in retaliation cases.
I was also informed via the same 2/5/19 email response that
redacted information could also be given to the VISN when there were
disclosures of violations, gross mismanagement, waste of funds, abuse
of authority, or specific danger to public health or safety. OAWP staff
member wrote in such cases ``.the investigative party (OAWP or VISN)
may be provided with copies of the redacted information''.
2)Prior to the filing of an OAWP complaint, the OAWP triage intake
staff apparently fail to communicate key information to complainants
about the investigative process and the potential to have the
investigation conducted by the VISN or by the complainant's facility if
the OAWP declines to conduct the investigation using its own staff.
Based upon my OAWP experiences described below and intermittent
conversations with other whistleblowers, the OAWP intake staff do not
fully explain the process of investigation and do not routinely
disclose to whistleblowers that any complaints not meeting the initial
definition of whistleblower retaliation are forwarded to the employee's
VISN for subsequent investigation and/or subsequent delivery to the
complainant's facility to investigate.
My OAWP experiences: In a 9/15/17 I was informed by an OAWP triage
specialist that the OAWP investigates matters involving ``all VA Senior
Leaders'' and refers any other matters not involving senior leadership
``to the appropriate entity to investigate''. The triage specialist did
not specify which entities would be involved.
In 2019 an OAWP case manager wrote that the investigative party for
allegations other than retaliation would be the ``OAWP or VISN''.
However, she did not offer any specific information on what might
happen if a retaliation complaint was deemed not to rise to the level
of whistleblower retaliation.
Because it took 17+ months for the OAWP to respond to my 2017
initial intake disclosure, I asked the same case manager about the
timeliness of any future investigative processes. The OAWP triage case
manager told me she could not ``clarify the OAWP timeframe for taking
action or the investigation process. Each case is will be [sic] handled
on a case by case basis.'' I was surprised because I assumed the OAWP
would have processes defining the average/desired timeframes for
investigations.
3)The OAWP does not appear to have any processes in place to ensure
that the content of any referred complaint is handled by a neutral
party at the complainant's VISN office or facility.
Anecdotal OAWP information: I have been told by VA staff who wish
to remain anonymous that the OAWP will forward those complaints deemed
not to be retaliation to the regional VISN with only general
instructions to address the complaint. The OAWP does not appear to take
any steps to ensure the content of the complaint is handled by a
neutral party at the VISN.
I have been told that OAWP complaints are often forwarded by the
VISN to the complainant's facility (enabling the facility to
investigate itself) because the VISN does not have the staffing to
investigate. (This is similar to how the VISNs commonly handle OIG
hotline complaints that are referred to VISNs.)
I do not have any information on whether or not the OAWP does
follow-up of forwarded complaints to determine if resolution is
achieved.
4)The OAWP intake processes appear to be extremely slow with gaps
of up to 1+ years for initial intake.
When talking to another VA whistleblower (Dr. Christian Head) who
also testified at the 2014 HVAC hearing, I learned that he never
received any contact from the OAWP despite having filed a complaint
more than 1+ year earlier.
My OAWP experience: In 2017 I was told by several congressional
offices that they refer all potential VA whistleblower retaliation
cases to the OAWP. After learning that I could not receive
congressional help unless I first went through the OAWP process, I
contacted the OAWP to file an initial complaint. In September 2017 I
sent the initial email to make a disclosure and ask if the OAWP could
help. I subsequently sent a December 2017 email to the VA
Accountability Team and the now-former Secretary of the VA wherein I
stated ``I would like to file a case with the OAWP'' and provided a
succinct synopsis of the retaliation I experienced. Unfortunately, I
did not receive any OAWP response until January 2019 (1+ year later)
asking me if I ``still wish to file a disclosure''.
5)The OAWP appears to be subject to internal pressure from VA
Central Office (VACO) senior leadership.
My OAWP experience: In late August 2017, after I had notified the
now-former VA Deputy Undersecretary of Healthcare Operations and
Management (DUSHOM) in June 2017 about ongoing whistleblower
retaliation against me, the now-former OAWP Executive Director
contacted me at the request of the DUSHOM regarding a short-term detail
position to the OAWP as a physician investigator with the potential for
a longer assignment. I accepted the detail. Because that OAWP Executive
Director was uncertain how to initiate the detail paperwork, I drew up
the appropriate paperwork and forwarded it to him. He sent me an email
8/25/17 which thanked me ``for getting the processes started'' and
stated he would ``work it with [the DUSHOM]''. In late September/early
October 2017 I gave an interview to the Washington Post wherein I
stated that the VA retaliation against whistleblowers like myself had
worsened. Although the article did not appear until 10/30/17, the VA
was notified of my comments in advance as part of the standard
procedure for journalists. Shortly after the time the VA was initially
notified, I sent an inquiry to that OAWP Executive Director asking for
an update on the detail position because I had not heard from him after
waiting the expected 4-5 weeks it takes to get detail approval. In a 2
sentence email he replied he was not moving forward with the detail for
me. He did not respond to my subsequent email politely asking for an
explanation.
In January 2018 VACO publicly denied in a 1/17/18 USA Today article
that I was offered an OAWP position despite those emails to/from the
now-former OAWP Executive Director which are described above. Although
I do not have direct evidence of VACO's interference with my detail, it
seems logical that only VACO senior leadership would have the power to
not only cancel the detail that had been arranged by the DUSHOM but
also deny such a detail position offer ever existed.
6)The OAWP is inappropriately asking for complaint details/
documentation which could logically interfere with a potential/pending
OSC investigation.
My OAWP experience: On 1/25/19 I was contacted via email by an OAWP
triage case manager to determine if I still wanted to file a complaint
based on my 2017 correspondence with the OAWP. At the time of contact I
was already in the OSC's Alternative Dispute Resolution (ADR) process
with the VA because a Fall 2018 preliminary OSC investigation found
credible evidence of whistleblower retaliation against me. I explained
this and asked ``would there be any purpose in engaging the OAWP now?''
Per a 1/30/19 email, the OAWP case manager responded that the
``OAWP would still conduct their investigation despite OSC involvement
(provided we have all supporting documentation).'' This statement is
extremely concerning to me. Because the VA has no expedited mediation
process in place, my ADR with the VA has been ongoing since October
2018. If the mediation process ultimately is not successful, then it
will terminate.
If the current ADR process fails, then the OSC would conduct a full
investigation of the VA retaliation against me. In the event of a full
OSC investigation, if the VA were to be given advance access by the
OAWP to my complaint and all my supporting documents, I fear there
would be a significant risk intimidation of/retaliation against my
witnesses or other interference with the OSC investigation of my case.
Section V: Potential Remedies to Assist VA Whistleblowers, Positively
Influence VA Culture, & Strengthen Federal Whistleblower Safety-Nets
Because many ingrained root causes contribute to VA whistleblower
retaliation, I do not know of any single method which could effectively
obliterate retaliation in the VA system overnight. However, I believe
there are potential remedies which, if done concurrently, realistically
could address immediate whistleblower concerns, facilitate reductions
in VA retaliation events, positively influence VA culture so all VA
employees could identify safety issues without fear of retaliation, and
systematically strengthen federal whistleblower safety-net resources. I
have listed a few of those remedies in this section.
Note: Some of the recommendations listed below include references
to 3 VA initiatives: High Reliability Organization (HRO), Just Culture,
and Servant Leadership. In theory, each of these initiatives can
positively influence VA culture. However, 2 initiatives (Just Culture &
Servant Leadership) have not been consistently operationalized in a
manner conducive to substantially influencing the sprawling VA culture.
The remaining initiative (HRO) has not yet been implemented though its
eventual success will be extremely limited if Just Culture & Servant
Leadership are not already strategically in place.
The HRO initiative is a 3-pronged approach to achieve
organizational health care excellence by fostering a workplace culture
of safety, dedication to continuous improvement, and leadership
support. The ``culture of safety'' has techniques/guidance that empower
every employee to verbalize safety concerns and potential solutions
without fear of retaliation. As part of that culture, every level of
leadership expects/actively encourages employees to verbalize
legitimate concerns and take action to prevent patient harm. The
emphasis on a culture of safety and continuous improvement are
tantamount.
The Just Culture initiative must be present to have an effective
roll-out of HRO. ``Just Culture'' involves implementing an
institutional culture wherein there is balanced assignment of
accountability for designing safe processes/systems and for addressing
any occurrence of negative health care/safety outcomes. That
accountability is shared by both the individual employee and the
institution. If a problem/negative outcome occurs, the event is
analyzed to assign individual and institutional accountability. This
analysis also determine how the problem/negative outcome can be
prevented in the future by addressing employee-level issues as well
institutional-level issues that contributed to the event. Just Culture
also effectively reverses the present VA ``culture of blame'' wherein
staff are penalized for admitting mistakes.
The Servant Leadership initiative essentially encourages leaders to
promote collaboration/teamwork, trust, and ethical behaviors among
themselves and employees to meet the needs of the organization and its
staff. In its simplest form, Servant Leadership is the ethical use of
leadership power.
Recommendations for the Department of Veterans Affairs
Reinstate a VA expedited mediation process (similar to
what was present in 2014) for OSC cases wherein credible whistleblower
is found and there are no confounding factors.
Although it may be unintentional, the current extreme delays in VA
mediation responses imply the VA devalues whistleblowers to the point
that it is not even willing to provide adequate resources or expedited
processes to ensure those suffering credible retaliation are treated
promptly and fairly.
If the Office of Special Counsel (OSC) has determined credible
evidence of retaliation exists and there are no confounding employment
factors, there is no reason for the VA to delay implementing the
remedies to reverse the unfair/unjust personnel actions and
appropriately address the effects the whistleblower retaliation has had
on the employee. (I am defining ``confounding factors'' as substandard
employee performance/conduct that normally would justify a major
adverse personnel action as defined by as defined by VA Directive 5021/
17, Employee/Management Relations. Per that VA Directive, major adverse
actions are ``suspension, transfer, reduction in grade, reduction in
basic pay, and discharge based on conduct or performance''.)
In 2014 the VA had an expedited mediation process for OSC cases
wherein credible retaliation was found. Although I am not privy to the
details of that confidential process or the rationale for discontinuing
it, that 2014 VA expedited mediation process was successfully used to
address the whistleblower retaliation against me and other VA
employees.
Discard the practice of removing/firing probationary
employees who have become whistleblowers and who have displayed good
work performance/competence during their VA probationary employment.
The purpose of the probationary period is to determine if an
employee is a good fit for the VA position and can function
appropriately with other VA team members. If an employee has displayed
good work performance/interpersonal skills at his or her position, that
employee should be welcomed into the VA system because the VA workforce
would benefit from the employee's presence.
In the past, the VA has fired probationary employees after they
become whistleblowers even though there were reportedly no red flags in
the employees' VA work performance. While technically any employee can
be fired without cause in the probationary period, the spirit of the
applicable regulation/law is to help weed out poor performers including
those with poor interpersonal skills and NOT to weed out those with the
integrity to speak up about VA problems jeopardizing Veterans' care or
agency mission. In addition, while there are legitimate red flags in
probationary period performance that would necessitate firing a
probationary employee whether or not the employee was a whistleblower,
the VA should not use very minor issues that can be easily corrected
with training or instruction as a trumped up excuse to fire a
whistleblower when the VA would not use those same issues to fire a
non-whistleblower in the probationary period.
Ensure that all VA facility Administrative Investigative
Boards (AIBs) and Professional Standard Boards (PSBs) are no longer
weaponized as tools of retaliation.
In the VA system, AIBs and PSBs have been weaponized to retaliate
against whistleblowers. Unethical use of AIBs and PSBs involve
deviating from prescribed regulations for committee set-up and
functioning, providing the whistleblower with only limited information/
time to address allegations, stacking AIB/PSB committee membership in
favor of the retaliator, and drawing conclusions that are not based on
the objective evidence. There appears to be almost no accountability
for AIB/PSB committee members who act in bad faith.
The VA must ensure that all AIBs/PSBs are conducted in a
standardized fashion according to appropriate regulations. However,
AIB/PSB regulations can be complex and not all facility HR personnel
are familiar with requirements. While there are several approaches to
ensuring AIB/PSB standardization, some measures include 1) creating a
system-wide universal standard operating procedure for all AIB/PSB
phases that includes rules of procedure, 2) developing a mandatory AIB/
PSB checklist that must be completed/signed by committee members and
verified by Human Resource staff as being accurate, and 3) holding any
AIB/PSB committee member (as well as facility HR personnel) immediately
accountable for deviating from the SOP/checklist.
Revise VA leadership/supervisor training on whistleblower
retaliation to ensure the content is comprehensive, impactful, and
reflects real-world concerns of whistleblowers.
Although I do not recall the exact date, sometime in the last 2
years I was listening to a virtual presentation wherein leadership was
receiving training on whistleblower retaliation. Although the training
content was technically accurate, it fell far short of discouraging
retaliation. The emphasis appeared to be on improving documentation of
poor employee performance so that substandard employees could not hide
behind ``whistleblower'' status to avoid accountability for poor
performance. While I agree that employees should have appropriately
applied accountability for their poor performance, I vehemently
disagree with the inference that the vast majority of whistleblowers
are just poor performers who became whistleblowers to shirk
responsibility for their otherwise substandard performance.
The training would have been much more useful it had identified
examples of the commonly used HR tools surreptitiously used as
retaliation, the reasons why those uses violated VA policy/ OPM
regulations/federal law, and how misuse of those HR tools would not be
tolerated within the VA system. The training certainly would have been
more impactful if it identified 1) actual examples of consequences for
leadership who deliberately misused such HR tools and 2) actual
examples of the manner by which VA whistleblowers positively impacted
agency operations/mission. The training should have also highlighted 1)
ways in which to encourage all employees to identify VA problems
without fear of retaliation and 2) methods for leaders to respond to
reports of VA problems.
In addition to seeking HR specialist/VA leadership perspectives on
content development, VA whistleblower input on/evaluation of training
content would help ensure the training addresses whistleblower concerns
and is truly tailored to preventing whistleblower retaliation.
Incorporate more effective means to encourage leadership
to routinely recognize VA employees/whistleblowers who have alerted the
chain-of-command about problems jeopardizing Veterans' care or agency
mission.
Recognizing employees who identify problems and/or solutions to VA
operations and safety issues should be incorporated into standard VA
workflow. Providing such recognition should be a substantially weighted
expectation included in leadership's annual performance evaluation. In
addition, the weekly national VHA call, monthly VISN Executive
Leadership Council meetings, and other similar calls/meetings should
have a recurring segment in which there is informal & formal
recognition of leaders who have encouraged employees to speak up about
problems negatively impacting VA operations and how identification of
those problems will positively impact agency operations/goals.
Unfortunately, VA leadership in many places do not routinely offer
formal/informal recognition if an employee identifies problems and/or
solutions to issues negatively impacting VA operations in any setting.
Leadership do not follow the guidelines which are published Handbook
5017/1, Employee Recognition and Awards.
Although the current VA initiatives of ``Servant Leadership'',
``Just Culture'', and ``High Reliability Organization'' theoretically
would encourage positive leadership behavior and incorporation of
employee recognition into standard VA workflow, those initiatives'
principles have not been effectively operationalized.
Revise Just Culture training/forms and then roll out
``Just Culture'' to more VA facilities so that all VA employees will be
encouraged to proactively identify and report patient health and safety
concerns.
If effectively implemented, the Just Culture initiative replaces a
``culture of blame'' with balanced accountability for staff and the
institution whenever negative outcomes occur. The Just Culture approach
should significantly alleviate fear of retaliation/unjust treatment for
identifying and reporting issues that negatively impact a facility's
operations and safety.
I recently reviewed some forms used by large VA facility to promote
``Just Culture'' when assigning accountability to adverse patient
safety events. I was appalled to see the forms neglected to formally
evaluate/document whether institutional factors (e.g., short staffing,
lack of proper process, lack of resources, etc.) contributed to the
negative outcome. While the form did list some employee factors that
would mitigate the type of accountability attributed to the employee,
the document essentially still resulted in unilaterally assigning blame
and instituting a punitive approach to address employee behavior.
That punitive approach is not consistent with Just Culture
principles. I am concerned that employees will not readily identify
health and safety issues in such a punitive environment. If the Just
Culture principles are being incorrectly applied in one large VA
facility, I am concerned that Just Culture is being incorrectly
operationalized at other VA facilities.
Emphasize proper execution of Peer Review/Root Cause
Analysis (RCA) to include the need to formally consider/document/report
all institutional factors contributing to negative outcomes.
While processes for Peer Review and RCA theoretically should
include institutional factors/accountability for negative outcomes, in
the VA such consideration is not consistently/objectively performed or
documented. For each case/event being reviewed, there should be an
enforced requirement for every Peer Review committee and Root Cause
Analysis committee to formally solicit/document information on whether
there were institutional processes that failed and/or otherwise
contributed to the negative case/event outcomes. There should be a
standard operating procedure in place for the Peer Review committee/RCA
committee to ensure that institutional accountability is assigned and
institutional deficiencies are proactively addressed so the risk of
future negative outcomes can be reduced.
While there are many ways to emphasize such institutional analysis,
one potential way would be to develop a standardized reporting form
which each involved employee would be required to complete and every
committee would be required to consider. In addition to filling out a
``blank'' section describing his or her account of the event/case, the
employee would also be given the option to complete the pre-printed
form questions including, but not limited to, 1) ``Are there pertinent
facility factors (e.g., lack of resources/inadequate standard operating
procedures/understaffing or other issues) that you believe contributed
to the outcomes in this incident? If so, please explain.''; 2) ``Have
you previously reported institutional factors you believe contributed
to this negative outcome or could have prevented this negative outcome?
If so, please explain.''; 3) ``Can you identify any facility process
improvements or potential equipment/resources that could prevent this
incident from re-occurring in the future? If so, please explain.''
Emphasis on analyzing institutional/facility factors and
appropriately assigning institutional accountability is consistent with
the VA initiative of ``Just Culture'' and ``High Reliability
Organization''.
Recommendations for the Office of Accountability & Whistleblower
Protection
Note: I only have very limited recommendations for the OAWP because
its processes are not transparent to me. I am proposing the following
remedies based on my experiences detailed in Section IV of this written
testimony.
Speed up the time for triage intake/follow-up of OAWP
complaints.
Foster transparency in OAWP procedures so that
complainants filing with the OAWP are aware exactly where their
documentation/complaint will be forwarded at each step of the OAWP
process and are informed of the approximate timelines for each OAWP
process step.
If referral of a complaint is necessary, establish
processes to ensure the content of any referred complaint is handled by
a neutral party at the complainant's VISN office or facility. (Ideally
no referrals of whistleblower complaints would occur.)
If not already doing so, based on the nature of the
whistleblower retaliation allegations that are received, make ongoing
content recommendations for real-time field updates and training
pertaining to the prevention of VA whistleblower retaliation.
If not already doing so, if the OAWP has inadequate
resources, consider narrowing the scope of investigations conducted
directly by OAWP staff to emphasize its current strengths (speed and
agility) to address major adverse actions against whistleblowers.
Although I do not have official data, I have anecdotally been told
that a number of claims submitted to the OAWP are either for
allegations completely unrelated to whistleblower retaliation or
allegations in which the retaliation is not classified as a major
adverse action by VA Directive 5021/17. (Per that VA Directive major
adverse actions are ``suspension, transfer, reduction in grade,
reduction in basic pay, and discharge based on conduct or performance.)
While any type of credible whistleblower retaliation is
unacceptable, the OAWP likely does not have the manpower resources or
processes to personally investigate every allegation of whistleblower
retaliation.
If not already doing so, assuming OAWP resources are so limited
that it must prioritize its activities, the OAWP should consider
concentrating its available OAWP manpower on 4 activities 1)
determining whether SES executives are facilitating retaliation, 2)
determining if there are credible allegations of whistleblower
retaliation in situations where the whistleblowers are facing unjust
major adverse actions, 3) quickly reversing major adverse actions that
reasonably appear to be stemming from whistleblower retaliation on
investigation, and 4) monitoring/tracking data pertinent VA
whistleblower retaliation.
(Note: If the OAWP is not already doing so, the minimum pertinent
OAWP data to monitor would include frequency of allegations of VA
whistleblower retaliation, types of personnel actions that are reported
in allegations of whistleblower retaliation, facility/service line
implicated in allegations of whistleblower retaliation, and number/
facility/service line/major adverse action in substantiated
whistleblower retaliation cases. That data could help the VA monitor
whistleblower retaliation, identify trends, and proactively address
areas where there are concerns about retaliation and/or indications of
a need for facility/service line cultural change.)
When conducting OAWP investigations involving SES executives or
major adverse actions, the OAWP may choose to use its own employees for
the investigation or obtain the assistance of non-OAWP VA subject
matter experts. However, to avoid bias and potentially increasing the
risk of further retaliation against the whistleblower, the OAWP should
never delegate the primary investigative process back to the facility
or the facility's VISN office if the case involves SES executives or
major adverse actions against complainants.
If the OAWP is referring any retaliation complaints to the VISN/
facilities, then it must establish standardized processes to ensure the
content of any referred complaint is handled by a neutral party at the
complainant's VISN office or facility.
Take appropriate steps to ensure OAWP decisions are not
influenced by internal pressure from VA Central Office.
Do not solicit case documents when a potential
complainant is already in the OSC investigative stage or mediation
process.
Recommendations for Congress
Consult with the Office of Special Counsel (OSC) to
determine what additional budget allocation would enable the OSC to
effectively manage its entire caseload and backlog in a timely manner
and meet projected caseload needs.
In general, the largest portion of OSC claims are filed by VA
employees. At the end of 2018, the OSC had a backlog of over 2,600
cases while still receiving new claims at historic levels. The general
budget request for the OSC is 1% lower than last year. The OSC recently
was able to hire 11 additional staff due by lowering its financial
lease obligations, which will improve its ability to handle its
caseload. However, additional budgetary monies may still be required to
enable it to address all new and backlogged claims in a timely fashion
and proactively address projections on the numbers of claims which will
be filed in the coming fiscal year.
Use bipartisan influence to ensure that a 3 member Merit
Systems Protection Board quorum is immediately established.
The MSBP is the safety net for all federal employees who have
legitimate claims of adverse/unfair personnel actions including those
who are VA whistleblowers. The MSPB has not had a quorum for over 2
years. Without a quorum no MSPB appeals can be decided. As a result
there is a backlog of over 2,000 petitions and other cases - each day
of delay for each case has potentially significant negative impact on
an employee's career, livelihood, and psychosocial well-being.
Although 2 MSPB nominees have been approved in committee, they have
not been submitted for full vote because there is a wait for select a
3rd nominee. (Of the 3 nominees originally selected, 1 nominee withdrew
his name from consideration.)
(An employee can choose to bypass the MSPB delays by filing
directly in federal circuit court. However, this option is out-of-reach
for many federal employees because it is extremely cost-prohibitive and
lengthy.)
Allocate sufficient budgetary monies for the Merit
Systems Protection Board (MSPB) to fulfill its mission requirements in
a timely manner and recruit additional staff to replace pending
retirements.
The budget request for the MSPB is 10% lower than last year. The
MSPB had stated the budget cut will significantly impact multiple
operations and also affect its ability to address staffing needs for
pending retirements. The MSPB is a major safety net for federal
employees and should not be jeopardized.
Prepared Statement of Jeffery Dettbarn
Chairman Pappas, Congressman Bergman, and distinguished members of
the Subcommittee, it is my honor to appear before you today to testify
about my experience as an employee and whistleblower at the Department
of Veterans Affairs. My name is Jeffery Dettbarn, I have been employed
for over 14 years at the Iowa City VA Medical Center, with an
unblemished record before blowing the whistle on the improper mass
cancellation of what turned out to be tens of thousands of radiology
orders. I have been a Registered Radiologic Technologist for over 29
years. After receiving the Mallinckrodt award for the highest
achievement in my radiology school class, I went on to my first job as
an X-ray Technologist, learning general ultrasound, echo cardiography
and carotid doppler sonography. I took a position approximately 2 years
later doing Mobil Computerized Tomography which also allowed me the
opportunity to learn to drive a Semi truck and trailer. I later worked
at the University of Iowa working as a Cardiac Cath laboratory
technologist and in Orlando Florida, where I spent 11 years working in
many facets of radiology as a supervisor. In 2005, I returned to Iowa,
taking the position of Radiology Supervisor at the VAMC Iowa City.
After 3 + years as a supervisor, I stepped down to the role of CAT Scan
Technologist and that was what I did and loved every work day until I
blew the whistle two years ago and was quickly banished to non-patient
care duties, where I have remained to the present date.
Over the years I have developed a strong rapport with many of my
patients, but NEVER have I had such an over whelming feeling of loyalty
as I do to our Veterans. The comradery, compassion, and loyalty these
men and women have to their Family, Flag and Freedom is phenomenal. It
is also infectious. In my heart, the Veterans and I are family because
of the relationships I have cultivated over the past 14 years of caring
for them. I have been called ``Brother,'' by countless numbers of our
Veterans, which to me shows their confidence, faith, and trust in me. I
have not served but I SERVE them, and they are my extended family.
I came forward and became a whistleblower out of concern that
Veterans were being placed AT RISK of not receiving the care, and
follow-up care, they desperately needed, and because of the unnecessary
risk to patient care presented by non-medical personnel practicing as
physicians. Since then, the VA has banished me from the hospital for
two years, away from the greatest job ever-taking care of Veterans, cut
my pay by a third, targeted me with an Administrative Investigation
Board, proposed my removal, and subjected me to unbelievable physical
and emotional stress,
My present saga began in early to mid-2016, when the CT area began
experiencing issues with management's implementation and attempted
implementation of bogus policies and Standard Operating Procedures that
did not undergo the proper approval and implementation process. These
``policies'' included email instructions for technologists to
``protocol'' exams and to fill out, and complete with the Veteran the
required Patient Consent forms. Protocol sheets are forms used to
specify EXACTLY what type of scan a Veteran is to receive based on a
diagnosis. For example, a chest CT may require the use of intravenous
contrast, resulting in the need for a kidney function test, when ruling
out cancer, or it may be done without contrast when looking for a
calcification of the lung. Instructing a technologist to ``protocol''
an exam was entirely beyond the technologist's ``scope of practice,''
and something that only a physician should do.
Another bogus policy involved the execution of the Patient Consent
form-normally only executed by the Veteran together with the
RADIOLOGIST when the use of intravenous contrast is necessary, yet the
Veteran has some contraindication for NOT being a perfect candidate for
contrast. All risk factors would be discussed by the radiologist and
the Veteran, and the Veteran's informed consent would be obtained. This
consent must include a consult with the radiologist for it to be
effective, and instructing the technologist to execute the Patient
Consent form was also out of the technologist's ``scope of practice.''
Upon my questioning of many of these ``new'' rules, I was met with
great hostility and anger. No matter who I tried to contact locally for
assistance, someone in a higher position seemed to be blocking anyone
who was willing to help me with the issues I had reported. The
hostility I was met with paved the way for the barrage of retaliation I
have endured since making my disclosures to numerous agencies, such as,
OIG, OAWP, OSC, and including Senators Grassley and Ernst.
The big reveal of the impact of improper cancellations of radiology
orders came on February 22, 2017, when a Veteran presented for a CT of
the chest for a LUNG CANCER screening. There was a history of smoking
since age 13. That cancelled order would eventually be found to have
been improperly cancelled by the Radiology Service Secretary-only the
Physician who ordered it should have cancelled it. This order had been
cancelled 19 days prior to the appointment, meaning that the mysterious
cancellation had not been adequately reviewed for nearly three weeks
and suggesting that it had been part of a ``block'' or ``mass''
cancellation.
The lead technologist at the time, when attempting to register what
should have been an active order, inquired ``why can't I register this,
there is no order.'' Upon investigation, I realized there was an issue
due to the original order having been cancelled by the Service
Secretary, who is not a licensed practitioner. This violation of policy
was magnified when the lead technologist then took it upon himself to
``Reorder'' the Veteran's exam, in effect acting as the Veterans care
provider. This is completely beyond the Scope of Practice of a
Radiologic Technologist. Orders are only valid when initiated by a
Licensed Independent Practitioner. The lead technologist went on to
hide what had been done by destroying the ``New'' order and passing off
the paperwork for the cancelled order as bona fide, stating to a co-
worker, ``This one is ready,'' and implying that the Veteran was ready
for a valid exam, properly ordered by a Licensed Independent
Practitioner. This is when I knew something was wrong.
I informed my co-worker of the issues and specifically instructed
him to ``hang on to that paperwork, this is going to come back
around.'' I had no knowledge at the time this was anything other than
an Iowa City issue, but it has since become an ongoing national
investigation of improper radiology cancellations by the VA Inspector
General. Some 12,660 orders were cancelled at the Iowa City VA Medical
Center alone, according to the sworn testimony of our Administrative
Officer.
My co-worker at the time voiced his concerns of these unprecedented
actions to management, and I voiced mine to Patient Safety. In no realm
of health care is this practice of cancelling a physician's order
acceptable. Normally, only the physician who placed the order would
cancel the order. Every day for the months to follow, my co-worker and
I would uncover multiple scheduled patients with their orders cancelled
by management and ancillary staff. In the weeks to follow I would again
contact patient safety officers, compliance officers, AFGE, and the
Joint Commission (JACHO) Readiness Manager with my concerns of the mass
cancellations we were seeing in radiology.
Anyone trying to assist me or make their own disclosures was met
with every roadblock you can imagine, from sham Administrative
Investigation Board investigations, to blatant retaliation by not only
management, but other employees recruited by management. The harassment
caused a co-worker to leave the VA entirely.
By June of that same year, I was informed that one of the staff
radiologists was now complaining of my job performance. This complaint
came at approximately the same time of my first disclosure to Senator
Grassley. Months later, as I reviewed the testimony and documents used
by the Administrative Investigation Board to justify my removal, I
became aware that just days after I submitted an Electronic Patient
Safety Report on June 22, 2017, the Administrative Officer solicited
others in the department to forward to her any adverse reports on me
that they could come up with. These false allegations were exactly the
pretext upon which the VA proposed my removal six months later, and
included, ``Failure to follow hospital Policy and procedure, failure to
follow standard operating procedure, failure to assist a radiologist
during a contrast reaction, and failure to follow physician instruction
on patient positioning.''
During that same timeframe, ironically, I was also nominated for
and awarded a ``Good Catch Award,'' submitted to the agency by a co-
worker for my actions regarding a Veteran's poor renal function. After
discovering the potential for complications due to an order for
intravenous contrast, I alerted the proper staff to ensure the
Veteran's care and treatment were NOT jeopardized by the contrast. Only
by accident was I made aware of this award the day after I was to have
received it at the All Employee Forum from our Medical Center Director,
Judith Johnson Mekota. After that, it would take me almost four months
of continually asking the director and her aid, before finally
receiving my pin and certificate via interoffice mail. Because I was
later banished from the main facility, the award was forwarded to me by
a co-worker; it had been sent to the Radiology department and placed in
my mailbox which had been stripped of my name.
On July 12, 2017, while a Joint Commission Survey Consultant was at
the facility reviewing numerous processes in the CT area, my co-worker
and I disclosed to the consultant many of our concerns, including
technologists being instructed to act outside the scope of their
practice. The consultant later confirmed that the ordering and
``protocoling'' of exams by CT technologists was improper and must
cease. Yet, as I have heard from others to scared to come forward, the
cancellations have continued.
During this entire time while I was questioning the improper
cancellation of orders, management at the Iowa City VA consistently
referenced the ``DUSHOM directive,'' Outpatient Radiology Scheduling
Policy and Interim Guidance, VAIQ 7722255, of August 12, 2016, as
justification. This directive begins with the declaration that ``orders
can be placed as much as 390 days in advance,'' yet management was
cancelling orders as ``expired'' that were within days of the date the
Veteran was scheduled to appear for care. This is but one example of
management's flawed and twisted interpretation of this directive.
Later, after the VA detailed me out of the main facility, I learned
from others to afraid to speak up that numerous specialty clinics where
keeping secret lists of Veterans who would present for their
appointments and NOT have received the prior imaging required for that
appointment. A case manager of the Urology clinic informed me of this
practice, and upon investigation and questioning, other case managers
and Nurse Practitioners from Urology, Pulmonary, Ear, Nose and Throat
(ENT) Hematology and Oncology all admitted to having similar lists.
Upon learning of these lists, I contacted OIG, with the permission of
the case managers and Nurse Practitioners to release their names, and
reported that ``they would gladly speak with an OIG official,'' should
they be asked. To my knowledge, there has been no follow up from OIG
regarding my complaint.
On July 27, 2017 I was summoned to the Chief of Imaging Service
office. This was to be the beginning of my ``Banishment,'' from the
hospital setting. I was given a ``not to exceed 120 days'' detail
letter and told to immediately report to the Federal Building. No
specifics of why I was being detailed were given. I was handed a piece
of scratch paper with ``Post Office,'' and ``Find Savanah,'' written on
it. Upon my arrival at the partially abandoned post office building in
downtown Iowa City, I found the building locked with an access control
system and I had not been given the code. There were no signs or
identifiers to guide me once inside the building, but this was just an
introduction to the types of retaliation I have encountered over the
past 2 + years of being a whistleblower by the Agency.
Following my detail to the partially abandoned federal building, I
was targeted by a sham AIB investigation. In August 2017 I was told to
appear for testimony before the AIB, but I was not given a charge
letter, only informed that the AIB was addressing ``issues in
radiology.'' Soon after I began to testify, it became clear from the
accusatory nature of the questions, that I was the target.
At that same time I had again contacted Senator Grassley, and I
continued to contact Senator Ernst, whose office got me in contact with
the OSC disclosure unit. I then began the tedious process of filing
Forms 11 and 12 with OSC. I was also given contact information for OAWP
and in December of 2017, I formally filed with them after a telephonic
conversation with a triage case manager. This would lead to my sending
hundreds of emails and skype messages to OAWP, attempting to get any
information or progress reports about my case. I do not recollect ever
being contacted by OAWP, I had to initiate all communication. In the
meantime my detail was extended-``not to exceed'' 120 days, again.
In November 2017, prior to the release of the AIB report, and after
my initial contact with the intake and the retaliation unit lawyers of
OSC, I was made aware that I had been the target of a patient abuse
allegation which is what prompted my removal from direct patient care.
On December 28, 2017, the Chief of Staff, Stanley L. Parker, proposed
my termination. It was at this time that I was given the testimony and
exhibits from the sham AIB investigation. After reviewing the entire
4000 plus pages and prompted by the amount of false testimony it
contained and the apparent attempt by management to cover up the
wrongdoings at the VA Medical Center Iowa City, I sought assistance
with the process of ``Blowing the Whistle.'' I had been referred to as
being ``Toxic,'' and ``Bi-Polar'' by the JACHO Readiness Manager and
Administrative Officer of Imaging Services, and it had been reported to
me that the Imaging Supervisor had warned co-workers, ``not to let Jeff
get his hooks into them.''
It wasn't until I reviewed the testimony and exhibits that I became
aware of the numerous Reports of Contact aimed at me and submitted by
the recently assigned Cat Scan Supervisor who had been promoted twice
with a year, likely rewarding him for his willingness to retaliate
against me. It is my belief that I was targeted for this barrage of
Reports of Contact because of my whistleblowing and part of the effort
to have me dismissed from my position. That Cat Scan Supervisor also
made several attempts to discipline me for bogus and unfounded
allegations, alter the scope of my duties, or simply harass me only to
be blocked or reversed with help from AFGE.
Beginning in July 2017, VA employees retaliated against me by
filing multiple bogus complaints with the Iowa Department of Public
Health and the American Registry of Radiologic Technologists, the
national association that maintains my certifications. All of these
allegations have been investigated and dismissed as having no merit and
no action is needed but this particular retaliation is incredibly
hurtful and could result in the loss of my livelihood.
The process of seeking assistance as a whistleblower was truly
confounding. Do you file with EEO, OSC, OAWP, OIG, ORM, or JACHO? How
would anyone know who to contact? Sometimes you contact the wrong
agency, not knowing which way to go with no guidance or assistance.
Although I was lucky enough to have two good intake lawyers at OSC, not
everyone is that fortunate. For every person who gets to this point of
being a whistleblower there are 1000 that have spoken up only to be
removed, demoted, or intimidated into silence. After finally getting in
touch with some of these remedial agencies, I was occasionally
confronted with downright hostility, making the whistleblower feel as
if ``they'' are the problem, or that their disclosure is not relevant
or important. After that, I sat for months before finally prodding a
response from OAWP, or subsisting on the minimal correspondence from
OSC and OIG. During this ongoing two years of exile away from my
patients, the VA has forced me to forego about one-third of my salary,
shutting me off from ``on-call'' pay.
I have endured both physical and mental stress over the past 2 +
years of retaliation and whistleblowing, including Major Depressive
Disorder and Social Anxiety Disorder. I have sought psychiatric
counselling and started on medication for both disorders. I have had to
endure multiple regimes of different drug combinations to find one that
will afford me enough relief to allow me to function despite the
depression. I also have had to start on medication for chronic stomach
pain and discomfort caused by stress and nervousness. I am reluctant to
attend any type of function outside of my home, because of the risk of
a panic attack-I was forced to leave my nephew's wedding because of
one. My social life has become non-existent and the headaches, nausea,
stomach cramps, and diarrhea are at times debilitating.
My current professional situation, after 22 months, is unbearable.
The VA has placed me in a fabricated position as a ``records
requester.'' I am NOT receiving approximately $20,000-$30,000 per year
of ``on-call'' pay which is specifically stated in my job description
and represented about one-third of my annual income. I have not had a
performance appraisal for over three years. The mobbing and harassment
continues, ranging from fabricated allegations against me, to the
clothing I wear to my detailed position in the partially abandoned
federal building.
A truly accountable upper-level management would have easily
rectified the mass cancellation problem in its earliest stages by
admitting there was a problem and mustering all-hands to correct it.
But instead, they chose to blatantly fabricate excuses and present
incorrect DUSHOM directives, trying to pass them off as permission to
continue illegal activity. They then fabricated and pursued egregious
accusations against me, the person who spoke up for the core VA values
and our Veterans. Some of my co-workers who were similarly committed to
high-quality patient care chose to leave the VA rather than endure the
toxic leadership.
There is a culture of fear and retaliation that the VA uses as the
weapon to silence the whistleblower. I am the prime example that the
Iowa City VA has made to silence all employees. I have heard everything
from ``look at the trouble Jeff is in,'' to ``you don't want to end up
like Jeff,'' but I feel the worst is to have been asked ``what did you
do?'' And the answer is, ``I TOLD THE TRUTH.'' Other employees can see
what happened to me, the VA destroyed my career because I told the
truth. They will not speak up.
I am concerned about the lack of accountability for those
responsible for the mass cancellations. I have been banished for 2
years, away from patient care, with no end in sight, while the
Administrative Officer who was responsible for the cancellations and
the direction to cancel the orders for those needed exams has faced no
repercussions. Likewise, the Cat Scan Supervisor, implicated in the
cancellations and the retaliation was returned to duty promptly after a
120-day detail. There has been absolutely NO discipline for those who
broke the rules and retaliated against me for speaking the truth. Where
is our SPEED OF TRUST, I CARE, and NO FEAR that is constantly touted by
management? Where is the accountability preached by OAWP, where is the
TRANSPARENCY everyone speaks of? The only information I received on
OAWP was an email from the AFGE president stating that one particularly
sensitive email that I provided to OAWP was forwarded to hospital
management and then thrown in the union representative's face to be
used against me as evidence of my not being a team player.
One of the most important questions I have for the committee is who
will stand up for the best quality CARE our Veterans need and deserve?
If not for the VETERAN, I would not be a whistleblower, I would not be
needed. When I think of why I am doing all of this, I think of my
brother, a medically retired Chief Warrant Officer 4, who served 20
years before a life-threatening accident in Iraq that took him out of
the military. The thought of him needing any type of care and it being
jeopardized by individuals who are not qualified to cancel, alter, or
order a life-altering test is unfathomable to me. I have other
immediate family members, father and uncles, that also receive their
care at the VAMC. The Veterans I am trying to protect and help have
become an extended family to me. I know hundreds of them by name, their
histories, their family scenarios, and their loved ones. As I have
continually stated in this process: This is someone's Mother, Father,
Son, Daughter, Husband or Wife.
Taking care of my patients and ensuring the best possible care for
our Veterans is why I am here and it is what I love. At this point and
time in my life I haven't much to lose or anything to gain. I am 51
years old, and my life has been very good. However, the Veterans that I
am here for, to stand up for, and be a voice for, DO have a lot to
lose. THEIR LIVES.
Thank you.
Prepared Statement of Dr. Minu Aghevli
Thank you for having me today. It's an honor to be here.
I am the program coordinator of the opioid agonist treatment
program at the VA Maryland Health Care system in Baltimore, Maryland.
We provide medication assisted treatment for over 400 opioid dependent
veterans. I've been with the VA almost twenty years, and in this role
for over ten. Throughout my career, I have consistently received
outstanding ratings on my performance evaluations, and I have been
awarded multiple Gold VA Pins for excellent customer service. Our
program treats one of the most vulnerable and stigmatized group of
veterans in the VA system, who are at an extremely high risk for
overdose, suicide and other deaths. Many are indigent. I love my job
and the veterans that I treat. I have spent years developing
relationships with my patients and have earned their trust and respect.
I can't imagine any job I'd rather do. But for the past five years, the
VA has consistently impeded my ability to provide care to veterans who
need it the most, at the expense of those veterans, and in order to
prevent me from speaking out about patient care issues.
Most recently, on April 24, 2019, the Chief of Staff and Medical
Center Director summarily suspended my clinical privileges under
circumstances which could only lead to the conclusion that they were
revoked because I blew the whistle. I have not been able to provide
care to veterans since then and there is no available recourse for me.
By way of background, for approximately five years, the VA has
engaged in continuous retaliation against me, in what appears to be a
concerted, systematic effort to oust me from the Agency. The
retaliation started when I first reported concerns about the improper
practices for maintaining a waitlist for veterans waiting to receive
care for opioid treatment. Specifically, in the spring of 2014,
following a nationwide Agency scandal concerning lengthy patient wait
times, VA management began to convey to me that our waitlist was too
long and they were concerned the waitlist would draw scrutiny from VA
leadership and Congress. In order to reduce the waitlist, I was
instructed to improperly remove veterans from the electronic waitlist
by scheduling fake appointments for them in an imaginary clinic. This
clinic was not tied to any provider or location, nor did it actually
correspond to any real visits and accordingly, the veterans scheduled
for these fictitious appointments were not actually receiving VA care.
The VA also pressured me to artificially reduce the number of
patients on the waitlist through other improper means. This included
making minimal efforts to contact indigent patients and then coding
them as ``care no longer needed'' without confirming that care was, in
fact, no longer needed; as well as scheduling patients for appointments
without telling them, and then coding them as ``no show'' when they did
not appear for the appointments about which they had not been notified.
I was repeatedly pressured to make these changes, and I protested. I
went through my chain of command including the
Deputy Director and Director of Mental Health, the head of my
facility and ultimately to the Secretary of the VA. I also repeatedly
communicated my concerns to Office of Inspector General (``OIG'') and
to this Committee. For example, in September 2015, the VA received a
Congressional suspense asking about wait times for treatment. Due to
our inappropriate removal of patients from the electronic waitlist, the
official numbers were significantly less than the actual numbers of
veterans waiting to receive care. When the VA deliberately sent these
incorrect numbers to Congress, I again contacted OIG and also got in
touch with this Committee.
For the past five years, VA management has made my life a nightmare
and interfered with my ability to perform my duties but the Office of
Special Counsel (``OSC'') has repeatedly told me that the VA's actions
are just not bad enough for them to take any action. Approximately one
month after I complained of the improper waitlist practices, I was told
that I would be summarily transferred out of my coordinator role and
moved to an entirely different area of the hospital, where I would be
performing work unrelated to substance abuse treatment or the area in
which I had expertise. I filed with both OIG and OSC, and the transfer
was rescinded at the last possible minute before it became effective.
During the month that I was awaiting that transfer, I lost twenty
pounds and almost had a nervous breakdown. However, OSC told me that
since the VA had reversed the transfer, there was no adverse personnel
action for them to address. Since then, I have been routinely
reprimanded and subjected to fact findings about various frivolous and
inappropriate things. I have been excluded from meetings, subjected to
scrutiny and oversight that my colleagues are not, my functional
statement has changed, and I have been stripped of many duties which I
previously performed. In June 2016, I was informed that I would be
detailed to work in the Mental Health Executive Suite and prohibited
from engaging in patient care. The VA did not provide any legitimate
justification for its decision. I retained counsel and was ultimately
reinstated to my position. I was again unable to obtain redress through
OSC, who closed my case earlier this year, finding that the details did
not constitute a prohibited personnel action.
Most recently, shortly after OSC closed out my earlier case, VA
management again removed me from clinical care, this time also formally
suspending my privileges. As a result, I am currently not able to
provide care to veterans and am instead assigned to perform basic, data
entry work. The letter that I received from the Medical Center Director
stated that the suspension was because I visited one of our high-risk
veterans at a community hospital after he had overdosed and then
subsequently attempted to commit suicide. This reason is simply
nonsensical and cannot be the true reason for the suspension of
privileges. I had visited the veteran with the approval and
authorization of the attending physician and the Director of the ICU at
the hospital where the veteran was located. I have contacted the
Maryland Psychological Association's Ethics Committee, and numerous
other highly respected psychologists and physicians, all of whom agree
that there are no concerns with my conduct. According to a Maryland
Psychological Association Ethical Consult, the only ethical issue is
the fact that the VA is forcing me to me abandon my patients. My
actions were also in line with the VA's policies on assessment and
follow up of suicide risk and providing mental health care to high risk
veterans, an issue I am grateful this Committee has devoted a lot of
attention to.
Since the suspension, I haven't been allowed to speak to any of my
patients, plan for coverage of the program, or even sign my chart notes
from the day that my privileges were suspended.
Despite the fact that I have been unnecessarily unable to provide
care to high-risk veterans for two months, OSC has again proven to be a
futile option. On June 4, 2019, OSC issued a preliminary determination
letter stating that ``[t]he suspension of privileges is not a personnel
action covered by 5 U.S.C. Sec. 2302.''
In sum, the VA has been relentless in threatening me with action,
taking limited action against me, and then evading any liability by
reversing course. The constant harassment has ruined my life and
impeded my ability to provide care to veterans. When I turned to it for
help, OSC refused to take action and left me vulnerable to the Agency's
sanctioned retaliatory actions.
Ultimately, the way the VA treats whistleblowers affects veteran
care. I have taken care of some of my patients for close to twenty
years. I see many of them every single day and as their therapist and
the program coordinator, I am often one of the few constants in their
lives. Every time I've abruptly disappeared, it is traumatic for them
as well. After my suspension, I was not even allowed to visit a patient
dying from cancer in our hospice unit to say goodbye, or call his
family to offer my condolences after his death. These are certainly
adverse outcomes. I've been punished for speaking up for a group of
people who are often stigmatized, and that isn't right. They deserve
better. Many of the veterans we treat, especially in substance abuse,
don't have a lot of support in their lives or people who are advocating
for them and letting them know they are worth fighting for. It's
important to me to speak up when they are not receiving the treatment
they deserve, because we need to convey a message that our veterans,
and their treatment, are worth standing up for. I ask you to please
join me in standing up for these underserved veterans and expand
protections for whistleblowers so that we can continue ensure that
these veterans receive the care to which they are entitled, without the
VA undermining us by circumventing current law.
Prepared Statement of Rebecca Jones
Chairman Pappas, Ranking Member Bergman, and members of the
Subcommittee, thank you for the opportunity to testify today on the
vital role of whistleblowers at the Department of Veterans Affairs
(VA), and on the steps you can take to protect those brave
whistleblowers. I am Rebecca Jones, a Policy Counsel at the Project On
Government Oversight. POGO is a nonpartisan independent watchdog that
investigates and exposes waste, corruption, abuse of power, and when
the government fails to serve the public or silences those who report
wrongdoing. We champion reforms to achieve a more effective, ethical,
and accountable federal government that safeguards constitutional
principles.
The Role of Whistleblowers at the Department of Veterans Affairs
Whistleblowers at the Department of Veterans Affairs put their
careers on the line every time they speak truth to power to ensure the
best care possible for those who put their lives on the line to defend
our country. In that way, VA whistleblowers are heroes serving heroes.
Disclosures by VA whistleblowers save patients' lives by bringing
to light barriers to timely and effective medical care due to either
negligence or intentional misconduct, exposing officials who have
perpetuated a culture of abuse for decades, and freeing up taxpayer
dollars that are being misused and that instead can and should go
toward providing resources and care.
We've seen firsthand the profound and immediate impact
whistleblower disclosures can have on quality of care at the VA. Many
are familiar, for example, with the wait lists at Arizona's Phoenix VA
Health Care System brought to light by VA whistleblowers. While the
system's computer records falsely indicated that vets were getting
timely medical appointments, a secondary and accurate wait list
reflected the actual prolonged wait times that veterans were
experiencing. That secondary list showed that approximately 1,400
veterans were waiting months to meet with a doctor. At least 40 of
those veterans died waiting in the backlog tracked by the accurate
list. \1\ To add insult to injury, this wait-list scheme didn't just
hide the magnitude of the problem from Congress and the public, it
likely ensured that high-level officials received personal performance
bonuses. \2\ The VA inspector general found in 2014 that the way the VA
cooked the books made it seem that the system operated efficiently.
Taking advantage of this appearance, ``leadership significantly
understated the time new patients waited for their primary care
appointment in their [leadership's] FY 2013 performance appraisal
accomplishments, which is one of the factors considered for awards and
salary increases,'' \3\ according to the inspector general.
---------------------------------------------------------------------------
\1\ Scott Bronstein, Drew Griffin and Nelli Black, ``Phoenix VA
officials put on leave after denial of secret wait list,'' CNN, May 1,
2014. http://www.cnn.com/2014/05/01/health/veterans-dying-health-care-
delays/
\2\ Chelsea J. Carter, ``Were bonuses tied to VA wait times? Here's
what we know,'' CNN, May 30, 2014. https://www.cnn.com/2014/05/30/us/
va-bonuses-qa/
\3\ Department of Veterans Affairs Office of Inspector General,
Veterans Health Administration - Interim Report - Review of Patient
Wait Times, Scheduling Practices, and Alleged Patient Deaths at the
Phoenix Health Care System, May 28, 2014. https://www.va.gov/oig/pubs/
VAOIG-14-02603-178.pdf
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Unfortunately, the misconduct in Phoenix was not an isolated
incident. Complaints of inaccurate VA wait lists can be traced back
over a decade and all over the country, \4\ and even after the Phoenix
scandal, the abuse persisted. And whistleblowers continued to be
essential in bringing those abuses to light.
---------------------------------------------------------------------------
\4\ Rich Gardella and Talesha Reynolds, ``Memos Show VA Staffers
Have Been `Gaming System' for Six Years,'' NBC News, May 13, 2014.
https://www.nbcnews.com/storyline/va-hospital-scandal/memos-show-va-
staffers-have- been-gaming-system-six-years-n104621
---------------------------------------------------------------------------
For instance, in 2015 the VA inspector general released a report in
response to this committee's request to investigate a whistleblower's
disclosure of mismanagement at the Veterans Health Administration's
Health Eligibility Center. \5\ The inspector general substantiated many
of the whistleblower's disclosures, finding that the Chief Business
Office, the central authority for determining VA benefits eligibility
and enrollment, had ``not effectively managed its business processes to
ensure the consistent creation and maintenance of essential data.'' \6\
That mismanagement included deleting 10,000 or more unprocessed
applications, and employees hiding applications in their desks. The IG
noted that in the instance of employees intentionally hiding
applications, the VA neither reported the incident to the VA inspector
general, nor did it discipline the employees responsible because
leadership had played a part in the situation. \7\
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\5\ Department of Veterans Affairs Office of Inspector General,
Veterans Health Administration, Review of Alleged Mismanagement at the
Health Eligibility Center, September 2, 2015. https://www.va.gov/oig/
pubs/VAOIG-14- 01792-510.pdf (Hereinafter, IG Report)
\6\ IG Report, p. ii.
\7\ IG Report, pp. 14, 17.
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In 2017, two whistleblowers disclosed that a secret wait list in
Omaha hid the fact that 87 veterans faced inordinate delays for mental
health appointments. Congressional attention and pushback helped to
highlight this incident, but no employees were terminated from
employment. \8\
---------------------------------------------------------------------------
\8\ Steve Liewer, ``Nebraska-Western Iowa VA kept secret waiting
list for some mental health appointments,'' The World Herald, October
16, 2017. https://www.omaha.com/news/military/nebraska-western-iowa-va-
kept-secret- waiting-list-for-some/article--c428a382-320c-560d-bbee-
eb0a40ee6b23.html; Steve Liewer and Joseph Morton, ``Secret waitlist
delayed care for 87 veterans at VA hospital in Omaha, led to departure
of 2 employees,'' The World Herald, October 31, 2017. https://
www.omaha.com/livewellnebraska/health/secret-waitlist-delayed-care-for-
veterans-at-va-hospital-in/article--5048df5a-bb65-11e7-932b-
af5b8746deef.html
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And just this month, a whistleblower came forward alleging that,
yet again, VA facilities are secretly keeping separate, miles-long wait
lists-three times the size of the public lists-to conceal long delays
in care. As you know, this committee and its counterpart in the Senate
sent a letter to the VA seeking an explanation. \9\ Now, the
whistleblower who exposed the wait list is claiming that he is being
retaliated against professionally for his disclosure. \10\
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\9\ Letter from Chairman Mark Takano of the House Committee on
Veterans' Affairs, and Ranking Member Jon Tester of the Senate
Committee on Veterans' Affairs to Robert Wilkie, Secretary of the U.S.
Department of Veterans Affairs, on veterans' access to timely health
care, June 4, 2019. https://www.dropbox.com/s/4gcsnmq3d8aq9qe/
2019.6.4%20Takano%20and%20Tester%20Wait%20Times%20Lett er.pdf?dl=0
\10\ Joe Davidson, ``Does VA have a secret wait list for health
care? Key members of Congress want to know,'' The Washington Post, June
5, 2019. https://www.washingtonpost.com/politics/does-va-have-a-secret-
wait-list-for- health-care-key-members-of-congress-want-to-know/2019/
06/04/28d149e2-8717-11e9-a491- 25df61c78dc4--story.html
---------------------------------------------------------------------------
In all these instances, it took whistleblower disclosures for the
public to learn what happened-a nearly universal truth across the
federal government.
And yet, across the federal government, blowing the whistle
continues to be a risky business: Even though federal employees are
legally protected for exposing wrongdoing, they're likely to face
retaliation for doing so. A 2010 survey revealed that about one-third
of federal employee whistleblowers say they experience ``threats or
acts of reprisal, or both.'' \11\ And potential whistleblowers are
discouraged from making disclosures at every turn, whether directly by
their supervisor or indirectly by seeing their co-workers retaliated
against for speaking out for what's right. All the while, retaliating
supervisors go unpunished, or worse-get rewarded. The adage that no
good deed goes unpunished is profoundly true for VA whistleblowers.
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\11\ Merit Systems Protection Board, Blowing the Whistle: Barriers
to Federal Employees Making Disclosures, November 2011, p. i. https://
www.mspb.gov/mspbsearch/
viewdocs.aspx?docnumber=662503&version=664475&application=ACROBAT
---------------------------------------------------------------------------
In 2014, POGO investigated problems at the VA by inviting VA
whistleblowers to make secure disclosures to us online. Working with
the Iraq and Afghanistan Veterans of America, we received disclosures
from approximately 800 VA employees, contractors, and veterans in just
a month's time. The disclosures were diverse in both the problems they
exposed and the employees making them. Disclosures ranged from a
pharmacy technician who faced retaliation for repeatedly reporting
missed, late, and expired doses of medication administered to patients,
to a nurse being forced out of her job after speaking up for her
patients whose injuries were being severely neglected. \12\
---------------------------------------------------------------------------
\12\ Testimony of Lydia Dennett, Project On Government Oversight,
before the Senate Committee on Appropriations Subcommittee on Military
Construction, Veterans Affairs, and Related Agencies, November 6, 2015,
pp. 1-2. https://www.appropriations.senate.gov/imo/media/doc/110615-
Dennett-Testimony1.pdf (Hereinafter Dennett Testimony)
---------------------------------------------------------------------------
In reviewing the disclosures, the theme was clear: VA
whistleblowers were terrified of speaking out for fear of losing their
livelihood. ``Management is extremely good at keeping things quiet and
employees are very afraid to come forward,'' one whistleblower
explained. \13\ Worse, not only were whistleblowers being attacked by
their employer, the VA inspector general investigating their
disclosures or retaliation claims was often worsening the situation by
exposing the whistleblowers' identities. POGO soon experienced this
toxic culture for ourselves, as the then-acting VA inspector general,
Richard Griffin, attempted, unsuccessfully, to force us to hand over
the database of VA whistleblower complaints we'd complied. \14\
---------------------------------------------------------------------------
\13\ Dennett Testimony, p. 3.
\14\ Letter from Richard Griffin, then-Acting Inspector General,
Department of Veterans Affairs, to Project On Government Oversight,
regarding subpoena to POGO, May 30, 2014.
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In 2018, after a change in inspector general leadership, then-
acting VA secretary Peter O'Rourke tried to intimidate the VA's newly
Senate-confirmed inspector general, Michael J. Missal, in an attempt to
kill an inspector general investigation. \15\ Missal raised the alarm
when his office wasn't getting requested information and documentation
from the agency about the Office of Accountability and Whistleblower
Protection-documents that the inspector general is entitled to under
the Inspector General Act. \16\ In what seemed like a desperate attempt
to get the inspector general off his back, the acting secretary wrote,
``You are reminded that OIG [Office of Inspector General] is loosely
tethered to VA and in your specific case as the VA Inspector General, I
am your immediate supervisor. You are directed to act accordingly.''
\17\ Of course, the idea of an inspector general being subservient to
an agency head is wholly contrary to both the spirit and the design of
federal inspectors general. Nonetheless, the VA apparently felt
entitled to lash out against the independent investigation.
---------------------------------------------------------------------------
\15\ Joe Davidson, ``As inspectors general are celebrated, VA tried
to intimidate its IG,'' The Washington Post, July 10, 2018. https://
www.washingtonpost.com/news/powerpost/wp/2018/07/10/inspectors-
generals-are-celebrated-as-va- tried-to-intimidate-its-ig/
(Hereinafter, IG Intimidation)
\16\ The Inspector General Empowerment Act of 2016 added clear
access to agency records for inspectors general. Public Law 114-317,
Sec. 5. https://www.congress.gov/114/plaws/publ317/PLAW-114publ317.pdf
\17\ Letter from Peter O'Rourke, Acting Secretary of Veterans
Affairs, to Michael Missal, Inspector General, U.S. Department of
Veterans Affairs, about access to documents concerning the Office of
Accountability and Whistleblower Protection, p. 2. https://
assets.documentcloud.org/documents/4529198/Letters-Between-Missal-and-
O-Rourke.pdf
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Thanks to this committee's leadership \18\ and that of its
counterpart in the Senate, \19\ the backlash against O'Rourke was swift
and bipartisan. But the lesson is clear: The modus operandi at the VA,
starting at the top of the agency, is to quash investigations and
dissent by bullying investigators and retaliating against
whistleblowers-all to the detriment of veterans and taxpayers.
---------------------------------------------------------------------------
\18\ House Committee on Veterans Affairs, ``RM Walz Responds To
Unprecedented Attack By Acting VA Secretary O'Rourke On VA Inspector
General,'' June 18, 2018. https://veterans.house.gov/news/press-
releases/rm-walz- responds-unprecedented-attack-acting-va-secretary-o-
rourke-va-inspector
\19\ IG Intimidation
---------------------------------------------------------------------------
The Office of Accountability and Whistleblower Protection
In April 2017, the Office of Accountability and Whistleblower
Protection (OAWP) was created through Executive Order 13793, \20\ which
was later codified and expanded upon by Congress when the VA
Accountability and Whistleblower Protection Act was passed into law.
\21\
---------------------------------------------------------------------------
\20\ Executive Order 13793, ``Improving Accountability and
Whistleblower Protection at the Department of Veterans Affairs,'' April
27, 2019. https://www.federalregister.gov/documents/2017/05/02/2017-
08990/improving- accountability-and-whistleblower-protection-at-the-
department-of-veterans-affairs
\21\ Public Law 115-41, Codified at 38 U.S.C. Sec. 323.
---------------------------------------------------------------------------
A merging of VA's Office of Accountability Review and the Central
Whistleblower Office, the OAWP is an internal fact-finding body that:
serves to improve the performance and accountability of VA senior
executives and employees through thorough, timely, and unbiased
investigation of all allegations and concerns. Where these actions are
found factually true, OAWP will provide recommended actions related to
the Senior Executive or other senior leader's removal, demotion or
suspension based on poor performance and/or misconduct. Additionally,
OAWP provides protection of valued VA whistleblowers against
retaliation for their disclosures under the whistleblower protection
provisions of 38 U.S.C. section 714. \22\
---------------------------------------------------------------------------
\22\ Department of Veterans Affairs Office of Accountability and
Whistleblower Protection, 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, June 2018, p. 3. http://
federalnewsnetwork.com/wp-content/uploads/2018/07/ANNUAL-REPORT-Office-
of-Accountability-and- Whistleblower-Protections-Activities.pdf
(Hereafter, OAWP Report)
---------------------------------------------------------------------------
The office is broken into six sub-offices:
Executive Office of the Director, the overseer and
liaison between OAWP and VA leadership;
Triage Division, the first point of contact for
whistleblowers both in making initial disclosures and in reporting
retaliation, and the overall case manager that sends intake to
different offices, depending on content;
Investigations Division, the office that conducts
investigations into whistleblower retaliation and senior official
misconduct allegations when referred to them by the Triage division;
Advisory and Analysis Division, which recommends
corrective action to senior VA leadership based on OAWP investigations,
and trains VA leadership on the Accountability Act;
Knowledge Management Operations, which maintains and
creates structural databases for OAWP's work, and;
Human Resources and Office Support, which provides
support to OAWP staff, and conducts external affairs.
As of last year, OAWP was supported by 73 employees. \23\
---------------------------------------------------------------------------
\23\ OAWP Report, p. 6.
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In order to be resolved, all VA whistleblowing disclosures must now
go through OAWP at some point. Even those that an employee files with
the Office of Special Counsel or the VA inspector general must
eventually go through the Triage Division for processing. \24\
---------------------------------------------------------------------------
\24\ OAWP Report, p. 8.
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While the office has now been in operation for about two years,
there is very little evidence to indicate that it's functioning as
intended. In June 2018, the OAWP released its first annual self-
assessment report, as required by statute. While it's clear from the
report that the office was still being stood up, it nevertheless saw a
predictably huge amount of intake, reporting having received ``nearly
2,000 submissions'' from whistleblowers in its first year. \25\
---------------------------------------------------------------------------
\25\ OAWP Report, p. 9.
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Unfortunately, despite the office's mission, that large intake does
not seem to have translated into any significant trend of disciplinary
actions against senior VA officials found to have retaliated against VA
whistleblowers. From OAWP's own reporting, senior executives and senior
leadership made up only 0.1% of disciplinary actions taken during
OAWP's tenure. That 0.1% maintains the average levels seen since 2014
and, in fact, is actually a decrease from recent years. The total
number of disciplinary actions taken from June 2015 to June 2016, for
example, was 15 cases, and from June 2016 to June 2017 there were just
9. In OAWP's first year, June 2017 to June 2018, there were only 7.
\26\
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\26\ OAWP Report, pp. 27-28.
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Instead, during OAWP's existence, 36.4% of disciplinary actions
were taken against GS rank 1 through GS rank 6 employees. \27\ Based on
that reporting, it's difficult to conclude that OAWP is succeeding in
its mission of holding VA senior executives accountable for their
actions. It reads, instead, like they're maintaining the status quo of
focusing disciplinary action on lower level employees.
---------------------------------------------------------------------------
\27\ OAWP Report, p. 30.
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The Government Accountability Office (GAO) released a review in
July 2018 of the VA's employee misconduct procedures and practices, and
provided more insight into what is causing this imbalance. \28\
---------------------------------------------------------------------------
\28\ Government Accountability Office, Department of Veterans
Affairs: Actions Needed to Address Employee Misconduct Process and
Ensure Accountability, July 2018. https://www.gao.gov/assets/700/
693268.pdf (Hereafter, GAO Report)
---------------------------------------------------------------------------
The GAO reported that senior officials engaging in misconduct are
not being consistently held accountable at the VA. When a retaliation
claim was substantiated and investigators proposed disciplinary action,
the VA didn't always follow through with that recommendation. GAO found
that the VA failed to discipline senior officials in 5 out of the 17
cases with substantiated misconduct. \29\ Information from OAWP seems
to explain why: The agency's own attorney is pre- reviewing
disciplinary decisions before they're finalized. \30\ Such a review
indicates that the agency's attorneys could reject proposed
disciplinary action, and it risks exposing the identity of the
whistleblower to senior agency executives.
---------------------------------------------------------------------------
\29\ GAO Report, introduction.
\30\ GAO Report, p. 94.
---------------------------------------------------------------------------
Although OAWP's authorizing statute rightfully forbids the Office
of General Counsel's (OGC) involvement in whistleblower claims, \31\
OGC is nevertheless heavily involved. Once OAWP's advisory and analysis
division completes their disciplinary proposal based on the underlying
investigation, they send that proposal to the OGC's office for legal
review. \32\ Although the OAWP and the OGC are both housed within the
VA, their interests are not the same. The OGC's mandate is to represent
the best the interests of its client: the VA. Repeated disciplinary
actions taken against VA senior officials is not in the VA's best
interests. It could affect public perception of the VA's work, future
funding, and individual jobs. The OAWP, on the other hand, is in charge
of fact-finding and analysis independent of any ulterior motivation to
keep the agency out of legal trouble. Allowing agency attorneys to
provide legal analysis or review of a proposed disciplinary action is
akin to a judge allowing the defense attorney in a criminal case to
overturn the judge's decision against a defendant. It's highly
unethical for OGC to weigh in on a whistleblower retaliation complaint,
because OGC's sole interest is the legal representation of the agency.
---------------------------------------------------------------------------
\31\ The VA Accountability and Whistleblower Protection Act of 2017
Sec. 323(e): The Office shall not be established as an element of the
Office of the General Counsel and the Assistant Secretary may not
report to the General Counsel. https://www.congress.gov/115/plaws/
publ41/PLAW-115publ41.pdf
\32\ GAO Report, p. 94
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GAO also found that employees who stand accused of whistleblower
retaliation are reviewing, and sometimes even participating in, their
own misconduct investigation due to the VA's systematically weak
internal controls to monitor who is involved in an investigation and
lax enforcement of the controls that do exist. \33\ This practice
leads, according to the GAO, to confusion about the role of OAWP and
about the office's responsibilities, and could make whistleblowers feel
``uncomfortable or intimidated.'' \34\ GAO found instances, for
example, where managers ``investigated themselves for misconduct.''
Further, the GAO explains in its report, the VA lacks the oversight
measures necessary to ensure that misconduct allegations are
investigated by an entity separate from the control or influence of the
office accused of misconduct. \35\
---------------------------------------------------------------------------
\33\ GAO Report, introduction.
\34\ GAO Report, p. 55.
\35\ GAO Report, introduction.
---------------------------------------------------------------------------
GAO also found that VA officials were not following separation-of-
duty policies. Such policies require that a final decision on
disciplinary action against an individual found to have engaged in
whistleblower reprisal be made by an official at least one rank higher
than the individual or team who proposed the discipline. This is to
ensure multiple levels of review and to preempt any undue influence
that someone charged with misconduct might have on the individual or
office proposing the discipline. Unfortunately, GAO's report indicates
that this is not happening consistently at the VA. Instead, the
individuals recommending whether officials should be punished or not
were also the individuals deciding whether or not to implement that
recommendation. GAO found that 73 VA officials ``acted as both the
proposing and deciding official'' in cases involving removal for
employees who engaged in misconduct. GAO followed up on 29 cases of VA
officials who violated a separation of duty policy at least twice, and
not a single one had been disciplined. \36\
---------------------------------------------------------------------------
\36\ GAO Report, pp. 44-45.
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GAO's report, combined with OAWP's own first-year numbers, do not
paint a promising picture of solving the whistleblower retaliation
problem within the VA. OAWP's existence hasn't led to greater
accountability of senior officials, and hasn't led to greater safety
for VA whistleblowers when they disclose abuse.
Fixing a Culture of Retaliation
The problems uncovered by the GAO that relate to OAWP are
consistent with what we have seen in other attempts to internalize
whistleblower investigations within an agency. This is why POGO
recommended increased structural independence for the office in
previous Congressional testimony. \37\ The OAWP is fighting an uphill
battle because it is trying to solve individual claims while
simultaneously combating a persistent culture of whistleblower
retaliation from within the agency itself. And this concept of a
retaliatory culture is no mere speculation: The GAO found that VA
whistleblowers are ``10 times more likely than their peers to receive
disciplinary action within a year of reporting misconduct.'' \38\
---------------------------------------------------------------------------
\37\ Liz Hempowicz, ``POGO Testimony on VA Accountability and
Whistleblower Protection Act,'' May 17, 2017. https://www.pogo.org/
testimony/2017/05/pogo-testimony-on-va-accountability-and-
whistleblower-protection-act/
\38\ U.S. Government Accountability Office, Fast Facts on
``Department Of Veterans Affairs: Actions Needed to Address Employee
Misconduct Process and Ensure Accountability,'' https://www.gao.gov/
products/GAO-18-137
---------------------------------------------------------------------------
Instead of changing the culture of whistleblower retaliation,
keeping investigations under the wing of the larger agency creates an
internal clearinghouse used to silence employees speaking out. \39\
According to recent reports from VA whistleblowers, several individuals
who have contacted the office have had their identities exposed. As a
result, the VA inspector general is currently conducting its own
investigation into this issue. \40\
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\39\ Daniel Van Schooten, ``POGO and Others Oppose `Trojan Horse'
Office for VA Whistleblowers,'' September 30, 2016. https://
www.pogo.org/analysis/2016/09/pogo-and-others-oppose-trojan-horse-
office-for-va-whistleblowers/
\40\ Eric Katz, ``New Whistleblower Protection Office Is Under
Investigation for Retaliating Against Whistleblowers,'' Government
Executive, April 16, 2019. https://www.govexec.com/oversight/2019/04/
new-whistleblower-protection- office-under-investigation-retaliating-
against-whistleblowers/156314/
---------------------------------------------------------------------------
The VA's stated vision is to ``to provide veterans the world-class
benefits and services they have earned-and to do so by adhering to the
highest standards of compassion, commitment, excellence,
professionalism, integrity, accountability, and stewardship.'' Based on
the information available, it's hard to draw any conclusion other than
that the agency is failing to make this vision a reality and has been
for some time. While OAWP may have been created out of a desire to
shift the retaliatory culture, it lacks the structural independence it
needs from an agency stymied by a pervasive internal culture of
whistleblower retaliation, so the cards were stacked against it from
the outset.
Recommendations for Reform
Changing the culture of whistleblower intimidation and retaliation
at the VA isn't an easy lift, but it would surely have profound impacts
for the veterans who rely on the VA's care. Holding senior officials
accountable for their actions is vital for lasting change. It is also
essential that the agency work to prevent retaliation in the first
place by ensuring independent, comprehensive, and swift investigations,
and providing quality training for employees on their rights. In doing
that, the VA will demonstrate that they take whistleblower allegations
seriously and will show employees that it's safe to come forward.
The first step toward improving the functionality of OAWP is
ensuring that the office has the independence necessary to analyze and
thoroughly investigate both whistleblower retaliation complaints and
allegations of misconduct by senior officials. While the best course of
action would be to remove OAWP's investigative functions from within
the agency's structure entirely, we understand that such a sweeping
reform may be a longer-term goal.
To immediately make the office more independent, Congress should
mandate that the OAWP have its own office of legal counsel,
circumventing any need to refer matters to the VA's Office of General
Counsel. OAWP concurs with this recommendation, noting that relying on
the OGC creates the appearance of a conflict and creates delays in
resolving cases. \41\
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\41\ OAWP Report, p. 22.
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To further increase independence, Congress should consider
mandating more guidance and oversight from the U.S. Office of Special
Counsel (OSC) and OAWP. Such guidance and oversight should include OSC
review of OAWP's final recommendations for disciplinary action of
senior-official misconduct as a means of quality control. This will
also end reliance on agency officials, such as those in the agency's
Office of General Counsel, who should be conflicted out of reviewing
OAWP decisions.
Congress should mandate that OAWP develop and oversee a
comprehensive and transparent system to ensure that those who are the
subject of an investigation, and their immediate office, are not able
to influence the investigation into their own behavior. Such a system
must also ensure that separation of duty policies are upheld in
practice. Individuals found to have knowingly and willfully violated
these policies should face mandatory disciplinary action. As a part of
this, OAWP should better track department-wide disciplinary action, so
that they can follow up on whether senior officials are actually being
disciplined, while ensuring the protection of the whistleblower
involved.
Further, OAWP should implement robust, updated training regarding
the options available to employees for reporting disclosures or
whistleblower reprisal, the connection between OAWP and other
investigative entities such as the U.S. Office of Special Counsel and
the VA Office of Inspector General, and the rights of whistleblowers to
make disclosures anonymously, as well as training on how a
whistleblower's information is to be shared between investigative
entities. At the time of OAWP's first report, they had yet to
disseminate updated training materials. \42\
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\42\ OAWP Report, pp. 20-21.
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Congress should also consider broader reforms to the Whistleblower
Protection Act to address issues that plague not just VA
whistleblowers, but all federal employees who can claim protection from
retaliation under the law. First, Congress should amend the law to
include retaliatory investigations as a ``prohibited personnel
practice'' in order to combat one of the most common forms of
whistleblower retaliation used to intimidate and stifle those who speak
out.
While the Whistleblower Protection Enhancement Act expanded
protections for federal employees in 2012, employers responded to the
stricter law by opening retaliatory investigations as a means to
distract from the underlying disclosure without technically committing
an actionable offense. \43\ By reforming the law to include these
investigations as a prohibited practice, whistleblowers would be
protected from the outset of the retaliation, rather than having to
wait for suspension or termination from their job.
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\43\ Government Accountability Project, ``Ban the Criminalization
of Whistleblowers!'' https://www.whistleblower.org/truthjailing/
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Second, Congress should extend the right to a federal jury trial to
federal employees who blow the whistle. Given prolonged delays in
access to justice for whistleblowers who have been retaliated against,
federal jury trials would ensure an expeditious, independent forum for
whistleblowers to seek relief.
VA whistleblowers blow the whistle because they're honor bound to
speak up when they witness violations of the country's trust or
individual suffering caused by negligence or corruption.
Creating or empowering independent oversight bodies that help
whistleblowers make disclosures benefits us all, but it's vital that
Congress be willing to quickly amend laws that carry unintended
consequences for those they were meant to protect. POGO thanks this
Subcommittee for taking the next steps in investigating protections and
processes at the VA for whistleblowers and we urge you to take action
to expeditiously fix this broken system.
Prepared Statement of Thomas Devine
MR. CHAIRMAN:
Thank you for inviting testimony from the Government Accountability
Project (GAP). This hearing is timely and necessary. Despite repeated
legislation, a presidential Executive Order and national media
scandals, the Department of Veterans Affairs (DVA) remains a free
speech Death Valley for government whistleblowers. This is not
surprising. Retaliation is ingrained in the culture of the DVA. It will
take years of aggressive oversight and accountability before this
agency respects the First Amendment or the Whistleblower Protection Act
(WPA) in practice, rather than empty rhetorical promises. This
conclusion reflects the bitter experience of whistleblower rights
lawyers from all perspectives. Two of today's witnesses are from GAP's
docket of ten DVA clients, representing 40% of the 25 whistleblowers
whom I represent. That ratio is consistent with the U.S. Office of
Special Counsel's (OSC) experience. This is an extraordinary record for
one agency in the nearly two million Executive branch work force.
Forty-percent of whistleblowers is an extraordinary number for an
Agency that comprises less than 20% of the Executive branch work force.
Our experience is consistent with that of attorneys at the Senor
Executive Association (SEA) who represent management whistleblowers.
Their disclosures are the highest stakes exposure of mission breakdowns
threatening the health of America's veterans.
GAP is a nonprofit, nonpartisan, public interest organization that
assists whistleblowers, those employees who exercise free speech rights
to challenge abuses of power that betray the public trust. GAP has led
or been on the front lines of campaigns to enact or defend nearly all
modern whistleblower laws passed by Congress, including the
Whistleblower Protection Act of 1989, the 1994 amendments and the
Whistleblower Protection Enhancement Act.
Over nearly 40 years we have formally or informally helped over
8,000 whistleblowers to ``commit the truth'' and survive professionally
while making a difference. We have been leaders in campaigns to pass 35
whistleblowers laws ranging from Washington, DC to the recently-enacted
European Union Whistleblower directive, which created enforceable free
speech rights in 28 member nations. This testimony shares and is
illustrated by painful lessons we have learned from this experience. We
cannot avoid gaining practical insight into which whistleblower systems
are genuine reforms that work in practice, and which are illusory.
Our work for corporate whistleblower protection rights includes
those in the Sarbanes-Oxley law for some 40 million workers in
publicly-traded corporations, the 9/11 law for ground transportation
employees, the defense authorization act for defense contractors, the
Consumer Product Safety Improvement Act for some 20 million workers
connected with retail sales, the Energy Policy Act for the nuclear
power and weapons industries, and AIR 21 for airline employees, among
others. Last year GAP was counsel for an amicus curiae brief filed by
Representative Speier, as well as Senators Grassley and Johnson, which
successfully defended the WPA burdens of proof for analogous corporate
whistleblower statutes.
We teamed up with professors from American University Law School to
author a model whistleblower law approved by the Organization of
American States (OAS) to implement at its Inter American Convention
against Corruption. In 2004 we led the successful campaign for the
United Nations to issue a whistleblower policy that protects public
freedom of expression for the first time at Intergovernmental
Organizations, and in 2007 analogous campaigns at the World Bank and
African Development Bank. GAP has published numerous books, such as The
Whistleblower's Survival Guide: Courage Without Martyrdom. We have also
published law review articles analyzing and monitoring the track
records of whistleblower rights legislation. See ``Devine, The
Whistleblower Protection Act of 1989: Foundation for the Modern Law of
Employment Dissent, 51 Administrative Law Review, 531 (1999); Vaughn,
Devine and Henderson, The Whistleblower Statute Prepared for the
Organization of American States and the Global Legal Revolution
Protecting Whistleblowers, 35 Geo. Wash. Intl. L. Rev. 857 (2003); The
Art of Anonymous Activism (with Public Employees for Environmental
Responsibility and the Project on Government Oversight)(2002); and The
Corporate Whistleblower's Survival Guide: A Handbook for Committing the
Truth (2010).The latter won the International Business Book of the Year
Award at the Frankfurt Book Fair. This spring, with the Project on
Government Oversight (POGO) and Public Employees for Environmental
Responsibility (PEER), we co-authored a survival guide for anonymous
whistleblowers: Caught Between Conscience and Career: Expose Abuse
without Exposing your Identity.
Along with POGO, GAP also is a founding member of the Make it Safe
Coalition, a non-partisan, trans-ideological network of 75
organizations whose members pursue a wide variety of missions that span
defense, homeland security, medical care, natural disasters, scientific
freedom, consumer hazards, and corruption in government contracting and
procurement. We are united in the cause of protecting those in
government who honor their duties to serve and warn the public. Our
coalition led the citizen campaign for passage of the Whistleblower
Protection Enhancement Act (WPEA). The Coalition includes organizations
for better government ranging from the Center for American Progress,
the National Taxpayers Union and Common Cause, environmental groups
from Council for a Livable World, Friends of the Earth and the Union of
Concerned Scientists, conservative coalitions and organizations such as
the Liberty Coalition, Competitive Enterprise Institute, American
Conservative Defense Alliance and the American Policy Center, to unions
and other national member based groups from American Federation of
Government Employees and the National Treasury Employees Union, to the
National Organization for Women. But the coalition itself is only the
tip of the iceberg for public support of whistleblowers. Some 400
organizations with over 80 million members joined the petition for
passage of the WPEA.
ILLEGAL GAG ORDERS
If there were any hopes that the DVA has learned from years of
scandal and remedial legislation, the agency dashed them this month. On
June 13 the DVA officially reaffirmed its illegal intolerance for
freedom of speech by whistleblowers. The attached memorandum on media
policy to all employees from the Acting Deputy Under Secretary for
Health Operations and Management imposed the following policy:
Queries that may yield negative coverage or are controversial in
nature must immediately be forwarded for review to the appropriate
regional Office of Public and Intergovernmental Affairs (OPIA) staff
and VISN public affairs contacts . to generate an approved response..
Regardless of subject, any query from national outlets also
requires the same review. This includes outlets such as the Associated
Press, Reuters, New York Times, Los Angeles Times, Wall Street Journal,
Washington Post, Newsweek, USA Today, Huffington Post, National Public
Radio, TIME magazine, CNN, and the network news and magazine programs
of ABC, CBS, Fox, NBC and PBS.
While the memorandum further orders employees not to communicate
with the media as government representatives on official time, there is
no clarification that they have that right speaking as free citizens on
their own time. As a result, on its face this prior restraint violates
three provisions of federal law, including two in the unanimously-
passed Whistleblower Protection Enhancement Act of 2012. (WPEA) - 5
U.S.C. Sec. 2302(b)(13) and Sec. 114 of the WPEA, as well as a
longstanding appropriations law provision. As explained in the attached
legal memorandum, both the WPEA and an annual appropriations rider
since FY 1988 require that any nondisclosure policy contain a
clarifying addendum with the following message: rights in federal
whistleblower laws trump its restrictions. This agency policy is very
clear about its free speech restrictions, and silent on employees'
legal rights. Hopefully this hearing will lead to the DVA respecting
the rule of law, at least in terms of official policy.
CASE STUDIES
Government Accountability Project's best contribution today will be
sharing the nightmares of DVA whistleblowers who risked their
professional lives to save the lives of America's veterans.
Illustrative examples from our docket are below.
James Hundt
The 2014 ``secret waiting list'' scandal for Department of Veterans
Affairs (DVA) hospital care horrified the nation, and sparked a serious
corrective action effort that was making significant progress at ending
both the backlog and the deception. Unfortunately, over the last two
years the Veterans Health Administration (VHA) has gutted the effort by
replacing virtually the entire team of over 175 seasoned, professional
career employees at its Veterans Engineering Resource Center (VERC)
with the green crew of a buddy system contractor. The civil service
team had been aggressively imposing, working closely with hospitals to
implement and inspect, corrective action. Its effective efforts
initially led to agency commendations.
But they were all replaced in favor of a buddy system contract. The
switch was accomplished through a reorganization illegally planned and
controlled by the favored contractor. It reversed Commission on Care's
internal agency recommendations and violated basic contracting and
spending laws. To illustrate, the agency allowed the prospective
contractor to draft a reorganization plan that would replace the civil
service professionals with unqualified, completely inexperienced
contractor staff. Since the civil service employees have been purged,
on-site inspections have been replaced by an honor system in which
facilities certify completion of various tasks. This helps to explain
other testimony today such as Mr. Dettbarn's, concerning the
persistence of secret waiting lists.
VERC Associate Director James C. Hundt persistently blew the
whistle internally to challenge the reorganization. The agency then
opened illegal retaliatory investigations on Mr. Hundt, using it to
fire him on pretextual grounds after he challenged the reorganization.
He led a group of staff whistleblowers, the most active ones receiving
the same treatment. In a stunning display of pretextual double
standards, the agency fired Mr. Hundt for seeking personal gain on
government time, although he had checked for prior approval of the same
actions that non-whistleblowers engaged in and received promotions.
This case of whistleblowing and reprisal calls for intensive
congressional oversight to restore progress addressing the most serious
challenge in recent years both to the DVA's integrity and the health of
America's veterans. After initial support, since last year the U.S.
Office of Special Counsel's efforts have become dormant, leaving the
whistleblowers unemployed and further corrective action dysfunctional
for the waiting lists. It also severely challenges respect for
Congress' mandate in the Patient Protection Act, the Dr. Chris
Kirkpatrick Whistleblower Protection Act and other recent statutory
efforts against DVA whistleblower retaliation.
Kuauhtemoc ``Krod'' Rodriguez
Mr. Rodriguez is an Iraq war veteran and former infantry officer
who was serving as a Management Analyst in the agency's Phoenix,
Arizona Health Care System when he began blowing the whistle to the
OIG, to Congress and to the media about what has since been recognized
as the agency's worst facility. He was one of the key pioneer
whistleblowers who broke the secret waiting list scandals. In addition
to challenging the Agency's gross waste of funds and cronyism, as an
advanced computer expert he disclosed that the agency incorrectly
scheduled approximately 400 patients, while another 400 patients had
been waiting over 120 days for an appointment and over 8,000
appointments were waiting to be scheduled. He later disclosed to
Congress a list of 38,000 veterans waiting over 280 days for specialty
care clinic appointments. He tracked how the agency was covering up the
secret waiting lists. Using his computer skills, he has traced for
Congress how the secret waiting lists were exponentially more severe
than the agency had publicly conceded, and how the secret waiting lists
extended well beyond Phoenix. Mr. Rodriguez not only disclosed the
deception, but the tragic medical impacts including patient deaths.
In response, agency managers moved him to a small, windowless
office without air conditioning in Arizona; placed him under
surveillance; eliminated his supervisory authority; actively recruited
mobbing allegations against him; lowered his performance appraisals,
referred to him as a ``rat'' and ``media whore''; failed to respond to
death threats against him; placed him under criminal investigation; and
subjected him to an AIB proceeding.
Thanks to intervention from the agency's Office of Accountability
and Whistleblower Protection's mentoring program, Mr. Rodriguez has
been placed in a new location where the harassment has subsided. But
his career has been paralyzed by denial of promotions for which he is
eminently qualified, and the agency has denied all misconduct in WPA
proceedings.
Daniel Martin
Mr. Martin was the Chief of Engineering Services at the Veterans
Affairs Northern
Indiana Healthcare System (``VANIHCS''). He oversaw engineering
operations at VANIHCS's two campuses (in Marion and Ft. Wayne,
Indiana), and the nearby Marion National Cemetery, where he also
supervised over 100 employees. After refusing attempted inducements by
a contractor, he disclosed evidence to the DVA OIG that his superiors
were engaged in illegally accepting gratuities, including at least free
meals and entertainment, and possibly cash bribes from the VA
contractor, in exchange for steering and awarding illegal sole source
contracts to that contractor in violation of long-established anti-
bribery statutes and procurement regulations. One of the suspect
contracts concerned the water purification system that is essential for
sterilization of medical equipment and safe drinking water for
patients. He later learned and disclosed evidence that the Indiana
contracting abuses were not aberrations, but reflected corruption
occurring nationally with contracts.
In response, the agency stripped Mr. Martin of his duties, assigned
him to an isolated office that was unheated in winter and not air-
conditioned in summer, and had him perform menial chores under
supervision of a junior staffer. He was exposed to asbestos that he
believes already is having a destructive medical impact. He was placed
under three retaliatory investigations, primarily for an
``altercation'' that his so-called victims denied was more than a
conversation. The third probe was conducted by an AIB that denied him
access or even the identities of adverse witnesses.
Active intervention by OAWP, combined with GAP's Whistleblower
Protection Act (WPA) appeal, prevented the agency from terminating Mr.
Martin. But the Agency refused an OAWP-mediated solution to move him to
Seattle, Washington, where the management said they would welcome him.
Despite canceling his duties, Indiana officials said they could not
spare Mr. Martin.
During his WPA appeal, Government Accountability Program
depositions of the officials who retaliated against Mr. Martin
established that they knew of his OIG disclosures when they acted,
which they previously had denied under oath during an inquiry by the
Office of Accountability and Review (OAR). It appears that Mr. Martin
may finally be allowed to work in Seattle and stop being a prisoner of
those he blew the whistle against. But for over three years his
professional life has been a nightmare, because he challenged
corruption that could threaten the lives of DVA patients and staff.
Christopher ``Shea'' Wilkes
Shea Wilkes is another pioneer VA whistleblower for exposure of
secret waiting lists at VA hospitals in 2014. The OSC found there was a
``substantial likelihood'' that his wait list disclosures were correct,
but the Special Counsel later lambasted the VA Inspector General and
the VA Office of Accountability Review for an obvious whitewash of this
breakdown in their subsequent report on patient care.
While his disclosures sparked a national spotlight on the VA's
deadly neglect of veterans, Mr. Wilkes faced serious reprisal after
blowing the whistle. Ten days after his disclosure to Congress and the
VA Inspector General, he was placed under criminal investigation
regarding his access to and the source of the secret lists. He was also
stripped of his duties, denied any new training, and steadily harassed
in a hostile workplace environment. After four years of steady
hostility, an OAWP mentoring effort helped relieve the pressure on Mr.
Wilkes. He is currently working for a new hospital director and
attempting to resolve an active complaint at the Office of Special
Counsel.
Following his disclosures, Wilkes co-founded the 50+ member ``VA
Truth-Tellers'' organization, one of the most effective whistleblower
self-help groups currently operating today.
Dr. Nishant Pavel
Dr. Patel is a psychologist with the Department of Veterans Affairs
(VA) in New York whom the agency is gagging from attempting to help
asylum seekers. For the last few years, he has volunteered with Weill
Cornell Medical Center for Human Rights, an organization at Cornell's
medical school that helps those individuals. He has assessed the mental
state of numerous asylum seekers, and in six cases submitted affidavits
on their behalf in immigration proceedings. No objection was ever
raised by the Department of Homeland Security (DHS) or the VA to his
submission of these affidavits. His work with the Center is pro bono.
Last year Dr. Patel planned to offer expert testimony on behalf of
another asylum seeker. As with his previous work, he would receive no
compensation for his testimony, nor would he be identified as a VA
employee during the proceedings. Before he was able to testify,
however, attorneys for the Department of Homeland Security (DHS)
asserted that he could not testify without permission from the DVA.
Dr. Patel duly sought permission from his DVA superiors to testify,
but was denied. The only explanation provided was that the VA would
need permission from the Department of Justice (DOJ) but would not be
able to get it. His supervisors also threatened him with criminal
liability under 18 U.S.C. Sec. 205 if he testified. That statute bars
government employees from acting as attorneys or agents for those in
lawsuits against the United States.
The newly-created objections are a shameless legal bluff that defy
well-established case law interpreting the First Amendment and 5 CFR
Sec. 2635.805, which governs outside activities of government
employees. The threat of criminal liability is particularly baseless.
There is no hint in statutory language of this extended application for
Sec. 205, which repeatedly has been rejected in court. Nonetheless,
the DVA has refused to eliminate the gag order, and if he resumes
helping asylum seekers Dr. Patel will risk termination and prosecution.
OFFICE OF ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION
OAWP enjoys a legislative and presidential mandate to help
whistleblowers to make a difference and defend themselves against
retaliation. Its authority to grant temporary relief against
retaliation initially had an outstanding impact, and is unprecedented.
It made a difference in several cases described above. Unfortunately,
despite genuine commitment from some leaders and an impressive initial
track record, it has become a threatening source of frustration for
whistleblowers as the rule, and an effective remedial agency as the
exception.
This submission will not duplicate the in-depth analysis of my
colleagues today on OAWP. However, it would be irresponsible not to
share lessons learned about the basic causes of this frustration. Most
basically, the Office lacks structural independence. In practice it
cannot act without approval by the DVA Office of General Counsel, whose
mission is to defeat whistleblower cases. This is a hopeless structural
conflict of interest.
On a cultural level, the OAWP staff lacks empathy and
whistleblowers frequently complain of hostility. Many of its
investigators come from offices where they accumulated anti-
whistleblower bias by spending their careers conducting retaliatory
investigations of them. That does not end with a new duty station and
job description.
OAWP lacks enforcement teeth for permanent relief. Agency officials
have the discretion to defy it with impunity. For example, early in the
Dan Martin case it negotiated a transfer to Seattle. But the same
Indiana manager who refused to give Mr. Martin any duties defied the
resolution on grounds that he could not be spared.
The Office inexplicably canceled its effective mentoring program.
This effort had successfully defused conflict and shrank litigation by
finding whistleblowers a fresh start with offices that would welcome
their commitment to the agency mission, instead of being threatened by
it.
Most fundamentally, OAWP operates on an ad hoc basis, without
accountability to regulations. This maximizes employee confusion and
enables arbitrary actions in any given case, and permits inexcusable
wastes of resources that exhaust targeted employees. To illustrate, the
Senior Executive Association has detailed how OAWP conducted seven
lengthy, draining investigations of a manager that resulted in a five
day suspension, only made possible by removing exculpatory testimony
from the evidence file.
In short, without serious oversight, training and structural
reform, this remedial office will degenerate into a Trojan horse for
whistleblowers.
RECOMMENDATIONS
It is clear that changing the DVA's repressive way of life will
require marathon persistence, both in terms of oversight and stronger
legal controls based on lessons learned. Based on these experiences,
GAP has teamed up with our colleagues today and Public Citizen to share
the following recommendations to keep pace with circumvention of prior
reforms.
Agency-wide recommendations
Jurisdiction to challenge retaliatory investigations as
prohibited personnel practices when opened against the whistleblowers.
Although made illegal in the Patient Protection Act, there is no
enforcement mechanism.
Jurisdictions to challenge Administrative Investigations
Board proceedings as prohibited personnel practices, if initiated
against an employee because of (or subsequent to) whistleblowing. AIBs
should focus on halting abuses of power, not perpetuating them.
Reform of the AIB structure and process so it stops being
a ``Star Chamber.'' Board proceedings should conform to the due process
requirements of the Administrative Procedures Act and the constitution,
such as the right to call witnesses and confront accusers.
Roll back gutted due process for internal agency
personnel rights, which have been exploited against whistleblowers. For
example, if a PPP is alleged, employees should have 30 days to respond
to proposed personnel actions.
Prohibit the delegation of authority to apply Section 714
any lower than the director level, whether it be Network or Hospital.
That is, any Section 714 disciplinary action would have to be proposed
and decided by directors or higher.
Extend to senior DVA executives the same protections in 5
U.S.C. Sec. 714(e)(1)-(2) that apply to all other agency
whistleblowers: after an alleged prohibited personnel practice,
proposed termination, demotion or suspension cannot proceed without
prior OSC approval. There should be analogous OAWP authority if an
employee blows the whistle to that office.
Provide temporary relief after an initial OSC, Inspector
General or Merit Systems Protection Board Administrative Judge finding
that there is a prima facie case under the Whistleblower Protection Act
that an adverse action was taken because of whistleblowing. Few actions
will be more effective to prevent retaliation than a realistic chance
to freeze retaliatory faits accompli that exile whistleblowers for
years while legal actions proceed at a molasses pace.
If necessary as a pilot program, provide a jury trial
``kick-out option'' for whistleblowers who do not receive a legal
decision on appeals within 180 days. This would be similar to
provisions under the Energy Reorganization Act (42 U.S.C. Sec. 5851)
giving this option to Nuclear Regulatory Commission and Department of
Energy employees.
Identify as a prohibited personnel practice retaliatory
referrals to licensing boards or the National Practitioner Data Bank.
Employees should be able to challenge and have the agency vacate false
or inaccurate reports, and must include in any report that the employee
was a whistleblower. The DVA routinely uses these referrals to
blacklist whistleblowers after firing them.
Reinforce existing confidentiality protection with best
practices. Employees should receive notice when their personnel or
medical records have been accessed and by whom. Confidentiality rights,
including those in OIG investigations, should extend beyond identities
to shield all ``identifying information.'' Whistleblowers should
receive immediate notice of legally-required, specific boundaries for
confidentiality rights, such as court orders. Whistleblowers should
receive advance notice when their identities must be exposed or
compromised.
Develop oversight measures to ensure all investigations,
both disclosure and retaliation, referred to facility and program
offices are consistent with policy and reviewed by an official
independent of and at least one level above the individual involved in
the allegation. To ensure independence, referred allegations of
misconduct should be investigated by an entity outside the control of
the facility or program office involved in the misconduct. This
suggestions echoes (Recommendation 12 of the Government Accountability
Office report GAO-18-137, July 2018).
OAWP specific recommendations
The Secretary of Veterans Affairs should direct OAWP to
develop a process to inform employees how reporting lines operate, how
they are used, and how the information may be shared between the OSC,
the OIG, OAWP, or VA facility and program offices when misconduct is
reported (GAO Recommendation 16).
OAWP should have, and only be responsible to report to
its own General Counsel and directly to the Secretary.
OAWP should have authority to enforce stays and other
corrective action(s), including in response to actions proposed under
authority other than Section 714.
There should be mandatory annual OAWP staff training on
whistleblower rights, identification of prohibited personnel practices,
and the psychosocial elements of working with whistleblowers suffering
from workplace traumatic stress. No OAWP employee should be permitted
to participate in a whistleblower case without certification of
completing this training course.
OAWP should be required to provide mandatory No Fear Act
training to all DVA employees on how to work most effectively with the
Office both for whistleblowing disclosure and retaliation cases.
The prior OAWP mentoring program should be restored as a
mandatory channel for counseling and negotiation to find a fresh start
for whistleblowers as an alternative to litigation, and should include
solutions to reduce workplace traumatic stress.
Regulations should be published that include dataset
definitions (including veteran status), engagements procedures, and
outcome options. Referral for adjudication of non-employee complaints
should also be highlighted. The Secretary of Veterans Affairs should
direct OAWP to develop a time frame for the completion of published
guidance that would develop an internal process to monitor cases
referred to facility and program offices (GAO Recommendation 14).
There should be a Memorandum of Understanding Better
between OAWP & OSC to reduce whistleblower confusion and prevent
duplication by remedial agencies that already are overextended.
Government Accountability Project has appreciated the thorough
committee staff preparations for this hearing. The GAP team is
available and would be honored to work with committee staff further on
any of these recommendations. Both your committee and the whistleblower
community are committed to making Whistleblower Protection Act rights a
reality at the DVA. However, our work is far from finished.
Prepared Statement of Jacqueline Garrick, LCSW-C, BCETS, SHRM-CP
Chairman Pappas, Ranking Member Bergman, Distinguished Subcommittee
Members:
I am truly grateful to be here today because my journey could not
have happened without the support that I have gotten from this
Committee. By September 2017, it had been 3 years since I first
disclosed my perceptions of a conflict of interest over the Defense
suicide prevention funds and contracts at VA and reported waste, fraud,
and abuse at the Departments of Veterans Affairs (VA) and Defense
(DoD). Since then, I have experienced several forms of retaliation,
including threats to stop speaking about my disclosure by a former
government official. It was a very frightening, lonely, and ostracizing
journey until I started to compare notes with other DoD and VA
employees. These connections were so affirmational that it led to the
creation of Whistleblowers of America (WoA), a nonprofit organization
that, among other things, provides assistance to whistleblowers who
have suffered retaliation. When we realized the potential level of
conflicts and favoritism permeating government contracts, we jointly
filed complaints with the DoD and VA Offices of Inspectors General
(OIGs). That was Veteran's Day 2016. We wanted to send a strong message
that the lives of veterans mattered. But other than getting a case
number, there was no response from the VA OIG. The DoD OIG refused to
even open a case. Almost a year later, the VA OIG finally came to my
home - a day after this Committee became involved. I gave the OIG
stacks of documents, shared emails, and named witnesses I thought would
corroborate my story. Over the last year, the OIG interviewed witnesses
in the search for a ``smoking gun'' - which was how they would later
describe the level of evidence they were looking to find. However, it
felt like the burden to develop that evidence was on me, not them. They
were asking me to produce documents and witnesses, which I could only
do through publicly available sources - such as USA Spending, Gov
Tribe, or SAM.GOV. Evidence I got through FOIA was different than
documents I could get during Discovery. As of today, I believe that the
2016 investigation is still on-going, as well as inquiries by the FBI.
However, waiting almost 3 years is a long time for justice, especially
while VA underperforms in its High-Risk areas and has not met all of
the GAO recommendations to be removed from that list. This, while
veterans are dying by suicide and are being denied access to care;
benefits take years to adjudicate, and staff shortages increase.
I can personally attest that reporting waste, fraud, and abuse,
inconsistencies in claims processing, substandard care, medical errors
and wrongful deaths is asking to have your career killed by VA leaders
who are more interested in covering up wrongdoing than in the lives of
veterans. For example, in one case of retaliation, Medal of Honor
recipient, David Bellavia can confirm that a blog he wrote included
information from at least one source inside VA. The blog targeted a VA
whistleblower who was working to correct a series of personnel and
contracting issues she reported as fraudulent. The allegations made
against the whistleblower in Bellavia's blog were proven to be false
(after a 2-year, taxpayer-funded VA investigation), but VA never
investigated the instigators of those false allegations nor did it take
any steps to protect the whistleblower, who experienced violent threats
(``slashing,'' ``clubbing,'' etc.) against herself and her family.
Finally, the Department of Homeland Security got involved after a
schizophrenic man approached the whistleblower at a conference and
called her direct line with threats. Who was held responsible for
inciting these acts of violence towards the whistleblower - acts that
came just short of a physical altercation? No one. Sadly, VBA leaders
stated that they had no recourse or reason to investigate. The
whistleblower was left on her own, to try to find assistance from local
law enforcement. No one has ever been held accountable for the false
statements or cyber/verbal assaults against this VA employee. We can do
better. We must do better.
I founded WoA to build a peer support network, offer Whistleblower
Protection Advocate certification, champion a Workplace Promise, and
help employees rescale the harsh imbalances of justice that they
endure. Since August 2017, WoA has heard from almost 200 VA employees
who wanted to engage in ``rightdoing,'' but instead suffered
retaliation, harassment and/or discrimination. WoA data is similar to
the 33% VA workload reported by the Office of Special Counsel (OSC).
\1\ By far, VA employees are reporting the most egregious risks to
patient care, fiscal mismanagement, and abuse of authority.
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\1\ OSC FY 2018 Congressional Budget Justification and Performance
Budget Goals Report. https://osc.gov/Resources/CBJ-FY2018-Final.pdf
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Furthermore, the Office of Accountability and Whistleblower
Protection (OAWP) has not acted in the way we thought it would - to
assist, support, and guide whistleblowers through a protected
disclosure process, and provide a decision algorithm for whether to
report to OSC, MSPB, EEOC, OSHA, FBI, or some other resource. There are
many redundancies in these systems, along with gaps in services
provided. OAWP should assist in navigating these systems and laws and
ensure proper representation. Instead, VA employees--who are the eyes
and ears of veteran care or benefits--are ignored, attacked, or
relegated to obscurity when they try to engage in a continuous process
improvement, seek ethical decisions, or solve patient care challenges.
In my own interactions with OAWP, I was left leery. My first OAWP
experience came after WoA issued a statement about a VBA hearing, along
with feedback from employees. Unsolicited, I received an email from an
OAWP case manager telling me that she was directed to reach out to me
and requesting more information about a WoA allegation of impropriety.
Primarily, she wanted whistleblowers' names, but I refused to give her
that information and directed her back to VBA managers. My next
interaction was after I met with the Veterans Service Organizations
(VSOs) in an effort to engage them in a Veteran-Centric Accountability
Council (VCAC). I had a vision for a VCAC that could address
disclosures at a faster pace than a formal OIG and inform veterans
about potential problems with their care. My main worry is that
veterans do not know when they have been harmed by wrongdoing and that
we need a stronger community voice to address these needs. The VSOs,
such as the American Legion, conduct hospital site visits and could be
``boots on the ground'' in reviewing any potential issues impacting
patient care or benefits delivery. The American Legion hosted a meeting
on October 2, 2018, which was attended by the ``Big Six.'' \2\ They
suggested that our next step should be to meet with OAWP and get a
policy briefing. The American Legion took the lead and tried to
schedule the briefing. Suffice to say, it never took place and in fact
Legion staff were purportedly accused by VA of trying to subvert the
mission. Undeterred, I reached out to an OAWP employee who was a former
whistleblower himself, thinking that he would have better guidance for
how to proceed. When I got an insulting response, I shared it with
another VA official who then got me in touch with Dr. Tamara Bonzanto
and Mr. Todd Hunter, who did have a phone conversation with me on
February 13, 2019. Dr. Bonzanto was newly appointed as the 3rd leader
of OAWP and outlined her ``Engage then Change'' strategy for a way to
reset the office. I have requested follow up meetings to discuss her
assessment of the situation and hear her plans to develop policies and
respond to the VCAC proposal, which could be FACA \3\ compliant, but
was told that General Counsel needed to make the decision about working
with WoA. To date, no word.
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\2\ Along with the American Legion, also in attendance were the
Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW),
Paralyzed Veterans of America (PVA), Vietnam Veterans of America (VVA),
AMVETS, and the Military Officers Association of America (MOAA).
\3\ FACA - Federal Advisory Committee Act of 1972
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In taking a closer look at hundreds of VA whistleblower
conversations, several themes have emerged about VA accountability and
the OAWP specifically.
Summary of OAWP Issues:
Although whistleblowers bring forward a variety of issues related
to wrongdoing, the retaliation they suffer usually occurs along similar
lines. They experience reprisal in the form of physical or emotional
violence, gaslighting, mobbing, shunning, marginalizing, devaluing,
doublebinding, blackballing and counter accusing. \4\ These toxic
tactics are features of Workplace Traumatic Stress and can lead to
posttraumatic stress disorder (PTSD), depression, or suicide, and can
have other psychosocial impacts. Employees go to OAWP to describe these
toxic conditions as evidence of retaliation in hopes that OAWP would
protect and assist them quickly. However, that has not typically been
the case. Instead, the OAWP has caused most of them more harm because
it is plagued with deficiencies related to timeliness, unfair
processes, and inadequate staffing that do not allow for an unbiased
and independent approach.
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\4\ Garrick Inventory: Whistleblower Retaliation Checklistc. I
developed this checklist with indicators designed to assess severity of
whistleblower retaliation and its psychosocial impacts on employees.
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Timeliness - OAWP does not provide timely responses. 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 most never do. I've seen dozens of email
exchanges between VA employees and OAWP case managers that demonstrates
this lack of responsiveness.
Process - Another consistent issue with OAWP is that it has no
Standard Operating Procedures or a policy statement, so there is no way
to manage expectations for engagement. Because of the language in the
VA Form 10177, attorneys have advised clients not to sign it because it
creates conflicts of interest and may be interpreted as waiving certain
rights. However, once the Form has been signed and a case manager
assigned, the process entails a report to the OAWP Director. But then
the information goes back to the VISN and the hospital or RO Director,
\5\ and then to the supervisor. This means that OAWP is asking the same
chain of command to investigate the very wrongdoing it has been accused
of perpetrating. Leadership will ask for a ``fact-finding'' or hold an
Administrative Investigation Board (AIB) hearing. These boards are used
as weapons for gathering information on the whistleblower and to learn
more about their evidence for later legal admissions, interrogatories,
and other discovery. Retaliation increases for the whistleblowers who
are set up for counteraccusations and become victims of cyberbullying
when VA officials plant misinformation in the public domain.
Furthermore, AIBs are often conducted by untrained co-workers within
the same chain of command. At times, the investigator and the proposing
official have been the same person, or the deciding official was named
in the original complaint.
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\5\ There are 22 Veterans Integrated Service Networks (VISN) across
the country that oversee all of the medical centers in the catchment
area. The VISN Directors report to the Under Secretary for Health.
There are also 58 Regional Offices within 4 districts (RO), and those
Directors report to the Under Secretary for Benefits. WoA has not
received complaints from National Cemetery Administration (NCA)
employees and is less knowledgeable about that process.
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This process seems to also involve hospital chiefs of staff sending
letters of investigation to licensing boards and professional
associations, which can have career-ending implications. Doctors are
reported to the National Practitioner Data Bank (NPDB) even when no
charges have been substantiated. But once a physician is identified to
the NPDB, his/her medical career is virtually over. There are at least
15 VA physicians who can speak to this level of identity destruction
and their lack of recourse. Living under this threat is causing some
practitioners to leave VA out of fear. A Readjustment Counseling
Services conference in June 2018 reportedly ended with Vet Center
employees being reminded that President Trump has curtailed their due
process rights and that they can be fired at any time.
Meanwhile, OAWP engagement seems limited to ``trafficking''
paperwork and monitoring the whistleblowers, but not a lot of time is
spent on advocacy or on a duty to assist in developing the case. OAWP
does not appear to have the capability to independently investigate,
mediate, or arbitrate an outcome. They should be required to provide
case management updates and disclose outcomes to victims. Although
privacy of all parties must be respected, whistleblowers should at
least be able to receive notice on the section(s) of law reviewed and
how the law was applied.
Additionally, since veterans comprise 30% of the federal workforce,
many VA whistleblowers are veterans. (There seems to be a propensity
for whistleblowing among the veteran population, although this needs
further study \6\). Veterans have raised numerous concerns over denials
of reasonable accommodations for their service-connected disabilities,
Family Medical Leave Act (FMLA) retaliation, privacy invasions of their
medical records, restrictions from VA treatment facilities, and having
their disability compensation ratings targeted. Last summer, the GAO
found that VA employees were 10 times more likely to suffer retaliation
with limited accountability for the perpetrators. \7\ Congress needs to
follow up on this report and focus specifically on how veterans
employed by VA are treated when they make disclosures, because their
earned benefits could be at risk.
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\6\ There are propensity studies in the literature on whistleblower
demographics and personality types, but veteran status is still
unknown.
\7\ July 19, 2018 GAO Report on VA: Actions Needed to Address
Employee Misconduct Process and Ensure Accountability: https://
www.gao.gov/products/GAO-18-137
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Finally, no settlement of whistleblower retaliation claims should
be allowed to contain a nondisclosure agreement (NDA). The VA should be
barred from asking, and whistleblower employees should be informed that
they cannot negotiate an NDA. These transactions involving taxpayer
money, government resources (including General Counsel time) and the
welfare of veterans should remain in the public domain.
Staffing - A job series issue seems to be impacting effectiveness.
OAWP was created by overtaking a former Human Resources (HR) function--
and the staff still tends to have that background. Therefore, there is
a shortage of the right staffing mix of HR specialists, investigators,
mediators/arbitrators, and decision makers. The Office would benefit
from being authorized to engage independent consultants to conduct
these investigations and issue unbiased reports. It should also require
that Union Representatives be consulted since not every employee knows
that they are covered by a bargaining agreement. This would increase
transparency, accountability, and confidence in the system.
When employees leave VA (regardless of whether they are terminated,
resign or retire), they should be required to participate in an exit
interview that captures information related to their employment
experience and reasons for leaving. This information should be reported
to Congress annually, and the data should be compared to the National
Federal Employee Viewpoints Survey.
Performance - The OAWP reports accountability and disclosures on
its website. \8\ The accountability report (adverse actions) details
demotions, suspensions and terminations, while the disclosure report
identifies the types of whistleblower reports made. However, almost
half of those contacting the office were found not to be
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 whistleblowers are being assisted. Is OAWP tracking
``stays,'' reassignment, or other agreed upon solutions? The OAWP needs
to open the aperture on how it is defining its whistleblower terms and
capturing retaliation (in its many forms), and it must be able to
account for the assistance provided. It should also denote how many of
the adverse actions taken involved any whistleblowers and how many
among them were veterans. If half of the employees described in the
reports were not whistleblowers, then who were they?
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\8\ OAWP website: https://www.va.gov/accountability/
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The Chris Kirkpatrick Act mandated that agencies report employee
suicides. \9\ However, according to OSC, there have been no Section 105
compliance reports made. This is concerning since the Act was named for
a VA psychologist who took his own life in the aftermath of
whistleblower retaliation. If suicide prevention is the number one VA
priority, then it should care about its own workforce who have died by
suicide too.
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\9\ PL 115-73. https://www.congress.gov/115/plaws/publ73/PLAW-
115publ73.pdf
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There are three main options that Congress can take to improve VA
Whistleblower Protections:
1.Hold OAWP officials accountable for mission execution by
requiring policy publication and a transparent key to its data with the
above outlined recommendations; utilizing independent investigators and
mediators; and sanctioning retaliators;
2.Abolish OAWP and require VA to transfer funds to OSC. Although,
transferring funds is a process, detailing OAWP employees is not as
difficult and could be the next step along with the following option.
If VA ever does produce policies and data that are acceptable then
those resources could be shifted back to OAWP and/or;
3.Allow VA employees to take their cause of action to civilian
courts for a jury trial if there is no resolution within 180 days.
WoA would like to believe that OAWP could provide the right
resources for VA employees seeking justice, but the agency has so far
failed to meet those expectations.
Summary of OIG Issues:
VA employees are reliant on the VA OIG and OSC investigations to
develop evidence. Unfortunately, both systems have generally failed
them. First, there is very limited accountability for when the VA OIG
makes recommendations related to disclosures. Those should be better
tracked and reported. There are no mandates to implement an OIG
recommendation, only suggestions to VA senior leaders, which can
literally, ``sit on the shelf.'' Furthermore, managers who were guilty
of retaliation or other wrongdoing are often not held accountable -
rarely are they even identified by the OIG. Most of the time, the OIG
recommendation is for ``further training.'' Such was the case when the
OIG found that $11.7 million of VBA money inappropriately went to
Calibre on a contract, \10\ but no action was taken to reclaim those
funds or hold accountable the managers who oversaw the wasteful
spending. Congress also should know what happened to the $6 million
that went unspent for suicide prevention. WoA suggests that Senior
Executives or managers with any pecuniary responsibility must be
required to pass a background check and hold a security clearance. In
the future, Congress should ask the OIG to oversee annual
accountability on such funding executions, as with the $25 billion
VECTOR IDIQ with 68 companies on the award performing management
initiatives \11\ and other high impact spending authorities.
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\10\ https://www.va.gov/oig/pubs/VAOIG-16-04555-138.pdf
\11\ https://www.va.gov/OSDBU/acquisition/vector-town-hall.asp
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WoA notes that there should be more serious penalties for
retaliation (fines, demotions, loss of retired pay, contract bans, etc)
to discourage these tactics. Congress should expand requirements to pay
into the Judgment Fund to include those identified as engaging in
whistleblower retaliation. Whistleblowers who must defend themselves
against retaliation often must pay out-of-pocket - sometimes upward of
$100,000 - while wrongdoers are defended by the Government, at the
expense of taxpayer money reserved for veterans. This is antithetical
to common sense, and the Judgment Fund could be used to assist
whistleblowers and offset costs related to retaining private sector
attorneys chosen by the whistleblowers and reduce the burden on the
taxpayer when damages are awarded. There are now Legal Aid services in
over 120 VA Medical Centers. This authority could be expanded to
support VA employees in their retaliation, harassment, and
discrimination cases. Without more serious steps towards accountability
and justice, a corporate culture that allows retaliation to fester will
continue.
Antagonistic Relationship between OAWP and OIG
There has been a history of animosity between the VA OIG and its
leadership. After being investigated for alleged misuses, former VA
Secretary David Shulkin (through a private team of lawyers) criticizes
his own OIG by saying, ``VA OIG reports `must be accurate,' `must be
fair,' and `must be objective,''.''This report is none of those
things.'' \12\ Later, Acting Secretary (and former OAWP Director) Peter
O'Rourke was accused by this Committee of trying to intimidate IG
Michael Missal in a letter during an OAWP investigation. \13\ This
Committee sent a letter to the US Attorney General asking that O'Rourke
be investigated for alleged perjury, misleading or withholding
information from Congress, or making otherwise unlawful statements in
testimony and communications during two oversight hearings on June 26,
2018 and July 17, 2018, in response to questions regarding the
withholding of access to information and a database from the OIG, and
the status and disposition of a VA whistleblower complaint \14\ (Dr.
Dale Klein, WoA Board Member). The GAO \15\ has also stepped in to
investigate outside influence from the ``Mar-A Lago Crowd'' on VA
leadership and personnel decisions following a ProPublica report. \16\
WoA is concerned that emails outside of official VA sources would not
be accessible during investigations or discovery. WoA also is unaware
of any resolution to these investigations, but we believe they
highlight the antagonistic nature of whistleblowing at VA. Since
Congress has demonstrated that it does not trust VA to properly handle
personnel issues, why would you ask VA frontline employees to trust
these internal organizations with their careers, personal well-being,
financial security, and family stability?
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\12\ February 11, 2018 Response to Administrative Investigation
Draft Report: VA Secretary and Delegation Travel to Europe and
published in the OIG Report: https://www.va.gov/oig/pubs/VAOIG-17-
05909-106.pdf
\13\ June 19, 2018 Press Release from House Veterans Affairs
Committee Ranking Member Tim Walz: https://veterans.house.gov/news/
press-releases/rm-walz-responds-unprecedented-attack-acting-va-
secretary-o-rourke-va-inspector
\14\ July 26, 2018 letter from members of the House Committee on
Veterans Affairs to the US Attorney General: https://causeofaction.org/
wp-content/uploads/2018/08/2018.07.26-Letter-from-Rep.-Walz-to-AG-
Sessions-re-ORourke.pdf
\15\ November 19, 2018 Letter to Senator Elizabeth Warren the GAO
agrees to investigate ProPublica allegations: https://
www.warren.senate.gov/imo/media/doc/
GAO%20response%20accept%20EW%20request%20for%20investigation%20Mar-A-
Lago%20Cronies%20VA%2011.19.2018.pdf
\16\ August 7, 2018 ProPublica Investigation: https://
www.propublica.org/article/ike-perlmutter-bruce-moskowitz-marc-sherman-
shadow-rulers-of-the-va
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Conclusion
The feedback VA whistleblowers can provide is informative, but fear
of reprisal causes many to remain bystanders and not veteran advocates.
Those who do disclose have seen the demise of their careers, moral
injuries, and identity disruption. Employees risk their careers to
protect veterans, while senior VA officials travel to Europe, attend
NASCAR events, and curry favor with contractors at taxpayer expense. VA
should not treat whistleblowers like adversaries but should treat these
employees with the same public health approach it describes for
communities, and it should incorporate that approach into comprehensive
continuous process improvements while ensuring independent and unbiased
investigations. To reduce stigma and retaliation, Congress should
authorize VA to host an annual Whistleblowers' Award that highlights
VA's ``rightdoing'' in overcoming agency wrongdoing. Furthermore,
Congress should consider authorizing a National Whistleblower Memorial
on the grounds of the Capitol that demonstrates the lamplit pathway
many have taken in exercising their First Amendment Rights.