Government Accountability Project works with legislators and the media to draw attention to whistleblower-related issues at the Department of Veterans Affairs’ Office of Accountability and Whistleblower Protection (OAWP). OAWP enjoys a legislative and presidential mandate to help whistleblowers amplify their disclosures and defend themselves against retaliation. Its authority to grant temporary relief against retaliation is unprecedented and initially had a significant impact, making the critical difference in several cases. Unfortunately, despite genuine commitment from some leaders and an impressive initial track record, OAWP has become a threatening source of frustration for whistleblowers instead of an effective remedial agency. The OAWP’s fundamental flaws include the following:
- Lack of structural independence: In practice OAWP 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.
- Hostile workplace culture: the OAWP staff lacks empathy and whistleblowers frequently complain to the media and Government Accountability Project of OAWP hostility. Many of its investigators come from offices where they accumulated anti-whistleblower bias by spending their careers conducting retaliatory investigations against them. Such impediments do not cease when investigators begin new positions at a new duty station.
- Lack of enforcement teeth for permanent relief: Agency officials have the discretion to defy it with impunity. The Office inexplicably canceled its effective mentoring program, which 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.
- Absence of accountability to regulations: Without published regulations, OAWP operates on an ad hoc basis, which maximizes employee confusion, enables arbitrary actions in any given case, and permits inexcusable waste of resources that exhaust targeted employees. To illustrate, the Senior Executive Association has detailed how OAWP wasted its resources on seven lengthy, draining witch-hunts of a manager that resulted in a five-day suspension, only made possible by removing exculpatory testimony from the evidence file—resources OAWP could have used to protect whistleblowers. The lack of regulations also means OAWP has no timelines it must adhere to for finalizing its investigations, and reports of investigations languish completed but not released for months or even years.
In short, without serious oversight, training and structural reform, this remedial office will degenerate into a Trojan horse for whistleblowers.
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 to be used, and how the information may be shared between the Office of Special Counsel (OSC), the Office of the Inspector General, OAWP, or VA facility and program offices when misconduct is reported. GAO report GAO-18-137, Actions Needed to Address Employee Misconduct Process and Ensure Accountability, Recommendation No. 16 (July 2018).
- 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. 38 U.S.C. § 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 report GAO-18-137, Actions Needed to Address Employee Misconduct Process and Ensure Accountability, Recommendation No. 14 (July 2018).
- There should be a Memorandum of Understanding Better between OAWP and OSC to reduce whistleblower confusion and prevent duplication by remedial agencies that already are overextended.