Non-Clinical Topics

VA Vows to Stop Whistleblower Retaliation; Some Lawmakers Skeptical

by Sandra Basu

August 11, 2018
VA Acting Secretary Peter O’Rourke met with leadership at the Manchester VAMC recently. He testified at a legislative committee hearing on a law to prevent whistleblower retaliation. (Photo from VAntage Point blog)

WASHINGTON—VA leaders said loud and clear that the agency “will not tolerate” whistleblower retaliation.

“Protecting employees from retaliation is a moral obligation of VA leaders, a statuary obligation and a priority for this department. We will take prompt action to hold accountable those individuals who engage in whistleblower retaliation and that includes appropriate disciplinary action,” declared Acting VA Secretary Peter O’Rourke.

But not everyone was convinced at a recent hearing on the implementation of the VA Accountability and Whistleblower Protection Act, which was passed and signed into law in June of 2017.

Several lawmakers voiced concerns about how well whistleblowers actually are being protected.

“If you don’t protect the whistleblowers, this will fail,” pointed out Rep. Phil Roe, (R-TN), who chairs the House Committee on Veterans’ Affairs. “They have to feel that you can step forward and say something and not be retaliated against.

The new law, which makes it easier for VA to remove, demote or suspend any employee for poor performance or misconduct with a shortened timeline, law also created the Office of Accountability and Whistleblower Protection within VA. That office is empowered to investigate allegations of whistleblower retaliation committed by supervisory employees, as well as to conduct investigations of allegations of misconduct involving VA senior executives.

If allegations are found to be true, OAWP will provide a recommendation for an accountability action. O’Rourke told lawmakers that “this new office is making a difference,” pointing out that, since last June, the office has assessed nearly 2,000 submissions of wrongdoing and recommended disciplinary or adverse actions at the senior level in 54 cases involving 58 unique “persons of interest.”

Rep. Neal Dunn, MD, (R-FL) expressed concerns during the hearing about news reports of retaliation against physician whistleblowers at the VA, noting, “These are chilling things for your physicians to hear, both the ones you employ and the prospective ones you might employ.”

O’Rourke responded that the VA will take action against any individuals retaliating against whistleblowers, although he conceded that the agency in the past has not done a good enough job defining what that is.

“I have seen incredibly egregious examples of retaliation. I have seen claims of whistleblower retaliation that were absolutely not,” he said.

O’Rourke also explained in written testimony that one lesson learned by OAWP “is that it is hard for whistleblowers to reintegrate with their offices.”

In response, he said the OAWP “has developed and implemented a ‘whistleblower reintegration program,’ which also links with the VA’s Employee Assistance Program to help individuals work through the emotional crises that can occur following disclosure.”

Roe reminded VA officials during the hearing that, “while this law made it easier to discipline poor employees, it did not give VA the license to use this authority to target employees, no matter the position or grade, or to retaliate against whistleblowers.”

He also said he was concerned about the “apparent lack of formal written policies of procedures for operations at OAWP.”

While the office had a bias “toward action” and reaching out to whistleblowers, O’Rourke told lawmakers, “We are now trying to see what we have learned from a process standpoint and start to codify that. So we do have work to do.”

In terms of the law’s other provisions on shortening the timeline for disciplinary actions against staff, legislators questioned whether low-level employees have been unfairly targeted for removal since the law was implemented.

Vice Ranking Member Rep. Mark Takano (D-CA) said the majority of the 1,096 removals of employees at VA in the first five months of 2018 have been housekeeping aides.

“Of the 1,096 removals, only 15 were supervisors, which is less than 1.4%,” Takano pointed out. “Firing rank-and-file employees does nothing to resolve persistent management issues. Instead, it just leads to worse care from unnecessary vacancies.”

Also testifying was J. David Cox, national president of the American Federation of Government Employees, which opposed the law when it was debated by Congress last year. At the hearing, Cox agreed that most of the employees that have been fired have been housekeeping aides, stating that the “Accountability Act has turned out to be the most counterproductive VA law ever acted.”

“It has demoralized and harmed its dedicated workforce, a third of whom are veterans themselves,” he said.

O’Rourke denied that VA is targeting lower level staff and said that statistics from 2014 until now do not show “a significant difference from year to year in any category of unrealistic firings or removals of any category of employees, let alone focusing on lower level employees.”

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