Lawmakers Look to Strip a Maligned Whistleblower Protection Office of Key Powers
This article features Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.
Key lawmakers are pushing to strip a much criticized whistleblower office of its primary powers just a few years after it was heralded as a transformational reform in enforcing civil service laws.
A panel of the House Veterans’ Affairs Committee on Thursday floated taking away investigatory responsibilities from the Office of Accountability and Whistleblower Protection within the Veterans Affairs Department. Panel members faulted the new office—created by executive order from President Trump in 2017 and later codified when Trump signed the 2017 VA Accountability and Whistleblower Protection Act into law— for failing to live up to its promise.
Government Executive in 2019 first revealed allegations of the office engaging in retaliation against those seeking its protection, which a subsequent inspector general report corroborated. Congress has held multiple hearings blasting the office for failing to prevent whistleblower reprisal and for taking almost no action to discipline top executives engaged in retaliation. The charges led to new leadership, though the allegations of reprisal within the office continued.
Maryanne Donaghy, VA’s latest assistant secretary for accountability and whistleblower protection who has served after President Biden’s appointment and the Senate’s confirmation last year, said on Thursday the initial years at the accountability and whistleblower office were “unfortunate” but she has made great strides in improving the culture there. Lawmakers and other witnesses generally agreed, but still said the office’s structure is fundamentally flawed. Since allegations first surfaced, critics have said the office’s collaboration with VA’s Office of General Counsel—and its placement within the department at all—removed any hope for independence. The accountability office lacks any enforcement mechanism after it conducts investigations and lawmakers noted the office’s recommendations for discipline are overwhelmingly ignored or reduced.
Rep. Chris Pappas, D-N.H., chairman of the Oversight and Investigations Subcommittee that held the hearing, said the office’s investigations take too long, frequently duplicate the work of the independent Office of Special Counsel and fail to ensure discipline against those who engage in retaliation. Pappas introduced the draft legislation to remove the office’s investigatory powers with the panel’s top Republican, Rep. Tracey Mann, R-Kan.
Pappas said the accountability office has “frequently worked against its core mission of protecting whistleblowers,” while Mann said it is still “not performing at the level Congress or the secretary should expect.” The ranking member said the office should shift to being primarily a training entity.
Rep. Mark Takano, D-Calif., chair of the full VA committee, also threw his weight behind the bill, despite what he saw as improved rhetoric under the Biden administration.
“Words are not enough,” Takano said. “They must be backed up with force of law.”
The forthcoming bill would task OSC with conducting all investigations related to VA whistleblowing and allegations of reprisal. OSC is better suited for the work, lawmakers and an OSC official said at the hearing, due to its independence, decades of experience and ability to pursue enforcement through prosecution at the Merit Systems Protection Board. The bill would give OAWP its own general counsel, broaden whistleblower protections to members of the Senior Executive Service, allow employees to seek temporary relief against disciplinary actions while their cases are being investigated and require more transparency in the reporting of the office’s work.
Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, fully endorsed the main pieces of the bill.
“No internal agency without independence or enforcement authority has ever been able to protect whistleblowers,” Devine said. “The most they can do is ask the parent agency to change its mind.”
Joanna Derman, a policy analyst at the Project on Government Oversight, said the reforms would free up the accountability and whistleblower office to focus on issuing reports, analyzing data and identifying trends within the agency.
The office could “take on a more educational role and work to promote a culture change agency-wide, one in which whistleblowers are valued as heroes rather than villains and managers understand their obligations to protect whistleblowers,” Derman said.
Donaghy, meanwhile, criticized the bill, saying VA whistleblowers should have multiple options for pursuing investigations and that new authorities were unnecessary. She said her office has established an investigative attorney division outside of the VA general counsel’s office, is instituting a new alternative dispute resolution program and is working on operationalizing other tools. Like her predecessors, Donaghy repeatedly suggested a fully realized whistleblower protection office as envisioned by Congress in 2017 is just around the corner.
“The OAWP of 2019 is not the OAWP of 2022,” she said.
Elizabeth McMurray, chief of OSC’s retaliation and disclosure unit, said one-third of its caseload comes from VA, despite the existence of the whistleblower office within VA itself. That rate has not changed since the office within VA was created, she added.
If Congress follows through on removing investigative authority from the whistleblower and accountability office, it would deal yet another blow to Trump’s signature civil service reform law. Trump often highlighted the overwhelmingly bipartisan VA Accountability and Whistleblower Protection Act as one of the key legislative accomplishments of his term, but courts and administrative bodies have repeatedly struck down much of its power. In addition to seeking to boost whistleblower protections at VA, the law aimed to make it easier to fire the department’s employees. Efforts to apply the law retroactively, prevent appellate judges from reviewing whether VA’s level of punishment was appropriate and remove performance improvement plans have all been struck down. Like the whistleblower provisions, lawmakers have voiced significant concerns with VA’s carrying out of the firing reforms.
While advocates pushed for a pared down accountability office, they said VA’s history of mistreatment of whistleblowers created an opening for it to still be useful.
“OAWP has the potential to be an outstanding service agency and resource agency and it’s badly, badly needed,” Devine said.