VA Accountability Office, Whistleblower Protection May See Restructuring
This article features Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.
During a hearing last week, the House Veterans Affairs Committee (HVAC) discussed a proposal to restructure the Department of Veterans Affairs (VA) Office of Accountability and Whistleblower Protection (OAWP). Lawmakers heard from both OAWP officials and a panel of whistleblower advocates on the Office’s current form and potential reforms.
The VA OAWP was created in April 2017 as a result of the VA Accountability and Whistleblower Protection Act of 2017. Currently, the Office receives and investigates allegations of misconduct and poor performance against VA senior leaders and allegations of whistleblower retaliation against VA supervisors. OAWP also receives whistleblower disclosures from VA employees and applicants for VA employment, and if they do not involve whistleblower retaliation or senior leader misconduct or poor performance, refers it for investigation within VA while the office monitors the investigation.
In 2019, a report by the Office of Inspector General (OIG) for the VA identified significant, across the board failures within OAWP. The OIG found that OAWP failed to conduct unbiased investigations of VA executives and managers, used untrained staff to conduct its investigations, failed to conduct thorough fact-findings, and placed whistleblowers in greater harm for having engaged in whistleblowing to the office.
In the same year, a panel of whistleblowers and whistleblower advocates testified before HVAC that retaliation against whistleblowers continues to pervade the agency long after Congress passed the VA Accountability and Whistleblower Protection Act.
As a result of the widespread criticism of the Office, lawmakers on HVAC’s Subcommittee on Oversight and Investigations are revisiting legislation that would eliminate the OAWP’s statutory authority to investigate whistleblower retaliation complaints. Instead, OAWP would refer cases to the Office of Special Counsel.
According to Federal News Network, the discussion draft legislation would also establish a general counsel within OAWP. During the hearing last week in which stakeholders were asked to comment on the draft legislation, stakeholders noted giving OAWP a general counsel would create independence within the Office. Currently, the VA general counsel provides legal advice to OAWP. This is controversial because the general counsel also defends the VA against whistleblower allegations.
Maryanne Donaghy, who currently leads OAWP, said her office remains “committed to the holistic continuous improvement of whistleblower protection.” Donaghy continued during the hearing, “I am always supportive of continuous improvement and suggestions to make that happen. But even more, the transparency to me has given this office, and me personally, excellent suggestions. I see it as my job to execute on that and I believe we’d done that.”
Tom Devine, Legal Director for the Government Accountability Project, credited Donaghy for changing the tone at OAWP through personally meeting with those who had pending complaints and conscientiously working to resolve the complaints.
Devine went on to explain, “Introducing civility and empathy at OAWP’s leadership team, it’s a welcome breakthrough and frankly a relief. Unfortunately, good vibes are no substitute for a credible track record or for structural reforms which is why your legislation is so welcome.”
Devine went on the explain the importance of creating an independent general counsel, transferring investigative authority to OSC, and providing whistleblower protections to senior executives.
Jacqueline Garrick, founder of Whistleblowers of America, urged for a more psychosocial definition for “retaliation.” Garrick encourages OAWP to work with OSHA to understand how that Office looks at retaliation.
Finally, Joanna Derman, Policy Analyst for the Project on Government Oversight (POGO), endorsed the draft legislation and the way which the bill would refocus OAWP. Derman explained, “This would free up OAWP resources to be able to issue reports, analyze data and identify trends within the agency. It would also allow OAWP to take on a more educational role and work to promote a culture where whistleblowers are seen as heroes rather than villains.”