In a scathing report, VA's auditor says the office engaged in "misdeeds and missteps" and failed to discipline top execs.
A new office President Trump created early in his administration that was designed to protect whistleblowers from reprisal instead aided in retaliation, sparked confusion throughout the department and failed to carry out its mandate to discipline top executives, according to a new scathing report.
The highly anticipated findings substantiate complaints VA employees and whistleblower advocates have made against the department’s Office of Accountability and Whistleblower Protection virtually since its inception. Government Executive first reported on the inspector general’s investigation in June and detailed many of the allegations against the office, all of which were substantiated by the IG’s report.
Trump created the office by executive order in 2017 and later codified it when he signed the 2017 VA Accountability and Whistleblower Protection Act into law. The office was mostly celebrated, with advocates hopeful that the focus on the rights and protections for whistleblowers would reverse a culture infamous for intimidation and reprisal. That optimism quickly soured, however, leading to hotline tips to the inspector general and bipartisan scrutiny from Congress.
The whistleblower protection office routinely referred cases involving allegations of retaliation against whistleblowers to other components of VA, the IG found, despite the cases falling within its own purview. The office did not protect complainants' identities and sent some cases back to “the very facilities or network offices where the complainant worked or that were the subject of the allegations.” In fact, OAWP required whistleblowers to sign off on the office releasing their identities before accepting an investigation or making a referral to another office. This policy put OAWP’s “obligation to investigate whistleblower retaliation in conflict with its obligation to maintain confidentiality of whistleblowers’ identities,” the IG said.
In at least one case, the office investigated a whistleblower who had a complaint pending against a senior leader. The request for that investigation came from the senior leader, the IG said, who had “social ties” to the whistleblower office's executive director. The office substantiated charges against the whistleblower after a “truncated investigation” without speaking to that individual.
While the statute creating it tasked the Office of Accountability and Whistleblower Protection with holding senior-level executives accountable for poor performance and misconduct, the IG found the office failed to do so. It lacked clear guidance on what steps to take when recommending discipline for high-ranking officials and gathered insufficient evidence, leading to those punishments being mitigated by other components within VA. As of late May, the office had only fired one executive using its special statutory authority.
The whistleblower protection office “misconstrued” its investigative mandate, the IG said. The office failed to investigate matters it should have, while accepting cases it should have rejected. OAWP boasted, for example, that it had a “broad and expansive mission,” including investigating all concerns related to VA employees. The law stipulates, however, that OAWP can investigate only allegations of misconduct, retaliation or poor performance for certain senior executives. It was never authorized to investigate any other employees or subject matters, the IG said.
The office did not always refer potential criminal matters to the IG, as required by law. In fiscal 2018, the whistleblower office directed 15% of contracts to issues “beyond its core mission.”
The IG also identified several examples in which OAWP investigators failed to conduct thorough and accurate probes, but a lack of quality control and oversight allowed the incomplete work to persist. Investigators lacked proper expertise and did not receive adequate training. Generally, OAWP “did not have an approach that ensured comprehensive and impartial investigations,” the IG said.
Upon its formation, OAWP absorbed the staff of the former Office of Accountability Review, which was housed in the VA general counsel’s office. Under the direction of its first executive director, Peter O’Rourke, who later served as VA’s acting secretary, OAWP staff frequently confused and conflated their previous responsibilities with their new purviews. VA employees have told Government Executive OAWP improperly coordinated with the department’s general counsel, and the department has acknowledged the two offices work together. The 2017 law that permanently authorized OAWP prohibited the office from existing “as an element of the Office of General Counsel” and its leadership from reporting to the general counsel.
The office also failed to implement many requirements spelled out in its authorizing statute, the IG found. Those included revising supervisors’ performance plans, implementing whistleblower protection training for all employees and submitting mandated reports to Congress.
“The former leaders of OAWP engaged in misdeeds and missteps that appeared unsupportive of whistleblowers while also failing to meet many of the other important objectives of the act [that created it],” said R. James Mitchell, the acting director for the IG’s Office of Special Reviews. “Given the magnitude of the situation inherited by new OAWP leaders in January 2019, significant enhancements are needed for OAWP to meet its mission and purpose.”
The House Veterans' Affairs Committee will hold a hearing next week on VA’s whistleblower protection and accountability efforts, where lawmakers said they will “expect answers” from the department.
“The inspector general report leaves little doubt that VA’s whistleblower office has failed to do its most important job—protect whistleblowers,” said Rep. Mark Takano, D-Calif., who chairs the committee, and Rep. Chris Pappas, who heads its Oversight and Investigations panel, in a joint statement. “From the outset, OAWP allowed senior leadership to personally intervene in investigations, let funds be diverted to non-OAWP projects, and struggled to properly train staff charged with conducting investigations. This report clearly shows that the current leadership still has not fixed, or even admitted, the ongoing failures of the office.”
J. David Cox, president of the American Federation of Government Employees, which represents most VA employees, said the report confirmed what members have voiced concerns about since OAWP’s inception.
“Instead of using the personnel authorities Congress provided the agency to root out bad managers and improve service delivery to veterans, the VA has systematically misused its authority to fire low-level staffers, retaliate against whistleblowers, and hurt the very veterans the agency was created to help,” Cox said.
The IG made 22 recommendations to improve the whistleblower office, including a comprehensive departmental review of its compliance with the law, clearer guidance of its authorities and policies, better communications with complainants and officials from other VA components, and an array of additional training. VA management agreed with all the recommendations, but suggested it had already addressed nine thanks to the efforts of new leadership at the office.
"VA appreciates the inspector general’s oversight and has been encouraging the IG to complete this work for some time, but it’s important to note that this report largely focuses on OAWP’s operations under previous leaders who no longer work at VA," said Christina Mandreucci, a department spokeswoman. She highlighted OAWP's increase in investigator staff and a commitment to handling allegations of whistleblower retaliation internally, among others.
Management rejected the IG’s suggestion that the whistleblower office was tasked specifically with targeting senior leaders for discipline, though the auditors said VA’s argument “simply misses the point.” While the 2017 law expanded firing authority to the VA secretary for all employees, the office was only tasked with making disciplinary recommendations for the top ranks. VA management also suggested it had “independently identified” many of the whistleblower protection office’s issues, but the IG suggested the department only implemented reforms due to the ongoing investigation.
The IG also suggested some of the steps taken by VA may be insufficient.
“Some of the planned actions lacked sufficient clarity or specific steps to ensure corrective actions will adequately address the recommendations,” the IG said.
This story has been updated throughout with additional detail.