A year since the Accountability and Whistleblower Protection Act of 2017 was enacted, an independent report indicates the Act is not having the intended effect Congress desired on whistleblower protections.

As part of the Act that went into effect in June, 2017, the Office of Accountability and Whistleblower Protection (OAWP) was established to help protect whistleblower rights, in addition to recommending discipline and/or termination of employees due to poor performance or misconduct within the Department of Veterans Affairs.

But a recent report, based on a survey of whistleblowers’ experiences with the OAWP the past year, suggests that retaliation and other problems still exist.

“The OAWP is plagued with deficiencies related to timeliness, process and staffing, further effecting outcomes,” wrote Jacqueline Garrick, founder of Whistleblowers of America (WoA), a nonprofit organization that provides support and advocacy to whistleblowers, in a report entitled “VA Office of Accountability and Whistleblower Protection (OAWP) Review,” released May 11.

“Although whistleblowers are bringing forward a variety of different issues related to disclosing wrongdoing, the retaliation occurs along similar lines . . . [w]histleblowers report to WoA that they experience further reprisal in the form of harassment/violence, gas lighting, mobbing, ostracizing, marginalizing and devaluing, double-binding, blackballing and counter accusing,” the report says.

Frustrated federal employees

After concerns were raised to the WoA by Veterans Administration (VA) employees and veterans about their whistleblowing experiences with the OAWP, WoA conducted the survey to learn more, which led to the creation of its report.

WoA surveyed 23 whistleblowers regarding their OAWP experiences and received responses from 11 current or former staff members (including veterans) at VA’s central office, medical centers and the regional offices around the country, according to report. Respondents included doctors and clinical providers, claims representatives, lawyers, law enforcement officers, contractors and senior officials, according to the report.

Issues in the report ranged from lack of timeliness by the OAWP in complaint responses to lack of advocacy and assistance “without the capability to investigate, mediate, or arbitrate an outcome.”  It also addressed staffing issues, noting that “there is a shortage of the right staffing mix of HR specialists, investigators, mediators/arbitrators and decision makers [at the OAWP].”

“Whistleblowers would be better off if OAWP did not exist because it gives whistleblowers a false sense of security where none exists,” said one survey-taker.  “And obviously, it wastes taxpayers’ money because OAWP is ineffective.”

The VA “is utilizing the office to collect information about whistleblowers, so the agency can use the shared information against the whistleblower,” said another.

The report also noted that though OAWP’s reporting accountability detailed demotions, suspensions and terminations and identified the type of whistleblower; however, almost half of those contacting the office were not found to be whistleblowers. This is “concerning because it either means that employees are not being educated in accordance with the NO FEAR Act or whistleblowers are being unjustly denied,” the report says.

Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” known as the No FEAR Act. One purpose of the Act is to “require that federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.”

OAWP maintains a system for handling employee concerns and complaints, which are processed through a “triage division,” which first assesses the allegations. Information on the OAWP website explains that “[E]ach person submitting a complaint will be contacted to further discuss the situation. Afterwards, the investigative process begins. Those complaints that are less serious and are determined as a personnel-related issue are redirected and managed internally.”

Recommendations

The report suggested that the OAWP office would benefit from using independent consultants to conduct investigations and issue reports, which “would increase transparency, accountability and confidence in the system.”

Other recommendations included in the report:

• host a roundtable with whistleblowers to hear firsthand about retaliation at VA;
• conduct a hearing on whistleblower retaliation and the effectiveness of the OAWP; and,
• draft legislative requirements for staffing (government and independent) and performance measures (to include timeliness and process outcomes).

Improving the VA

In addition to whistleblower protections, the Act also gives the VA secretary more power to discipline or fire employees, shorten appeals processes and prohibit employees from being paid while they appeal. It is part of larger efforts at the VA that include efforts to modernize the agency’s systems, consolidate disparate parts of the agency, and improve overall care and support of veterans.

President Donald Trump’s proposed 2019 budget includes a $198.6 billion funding plan for VA operations, a $12.1 billion increase in funding over 2018.

Between January 1 and April 30, over 910 VA employees were terminated under the Act. Thirty-six were demoted and 26 received suspensions, according to the most recent VA accountability report, released June 7. Between the time the Act went into effect in June, 2017 through January 30, 2018, a total of 1,737, employees were fired according to a previous VA accountability report.

VA employees with questions or concerns regarding whistleblower protections or other employment issues should consult with a federal employment attorney.

As Of Counsel at Tully Rinckey PLLC’s Washington, D.C. office, Colonel (Ret.) Larry D. Youngner provides representation in matters such as court-martial, security clearance adjudications, Article 15s, military whistleblower protection, letters of reprimand and officer/enlisted separation proceedings. He has extensive experience advising high-ranking officials on legal matters including, but not limited to, legal compliance and ethics and international agreement negotiations, and is well-versed in the military justice system and national security law.