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Protecting Whistleblowers since 1977

Highlights from Senate Nomination Hearing for OSC & DVA OIG

Shanna Devine, February 02, 2016

As one of its first actions in 2016, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a nomination hearing with high stakes for whistleblowers and their advocates – leadership at the Office of Special Counsel and Office of Inspector General for the Department of Veterans Affairs.

The Obama Administration nominated Special Counsel Carolyn Lerner for a second five-year term, and selected private attorney Michael Missel to fill the nearly two-year vacancy of the DVA IG.

Special Counsel Lerner’s nomination received a strong show of support from GAP and several leading government watchdog groups, including: National Taxpayers Union, Liberty Coalition, Federal Law Enforcement Officers Association, Public Employees for Environmental Responsibility, Project On Government Oversight, Public Citizen, and ACORN 8. In a letter to HSGAC, they stated –

 [W]ithin five years, under Ms. Lerner’s leadership the OSC has become the Executive branch’s chief good government agency, having earned unsurpassed credibility both with employees and agencies alike. Ms. Lerner’s team has aggressively and effectively used the Whistleblower Protection Enhancement Act new amicus authority to defend merit system principles. Under her leadership, among other accomplishments the OSC has achieved record results for handling retaliation complaints; achieving corrective action; ordering investigations of whistleblowing disclosures and monitoring subsequent corrective action; and training agencies in merit system principles.

The full letter can be viewed here.

Highlights from the Senate Nomination Hearing can be found below. The full hearing can be viewed here.

Hearing Highlights (Senators)

It’s very difficult to step forward … the level and pervasiveness of retaliation against [government] whistleblowers is why these hearings are so incredibly important.” – HSGAC Chairman Ron Johnson (R-WI)

 “… it took three years for the Office of Inspector General to investigate and then issue a nonpublic report on the problems within Tomah, and it only took them a couple of months to write and make public ... a report that retaliated against the whistleblowers of the problems within the Tomah VA systems. That is why these positions are so incredibly important. That is why we need people with integrity who will be independent [and] transparent, so that the agencies within the federal government are held accountable.” – Chairman Johnson

Let me go back to the white paper … it is such a powerful example of why these positions are important … There was a whistleblower, Dr. Chris Kirkpatrick. He came forward. He was trying to get the attention of the management within the VA about the over-prescription of opioid drugs. Because he came forward, he was terminated. The day of his termination, he committed suicide. If that isn’t tragic enough, on June 4th 2015 after spending three years investigating and then not publishing a report on the problems of the VA health care system, the Office of Inspector General issued and made public a white paper … This is the Office of Inspector General writing a report that is retaliating against a dead whistleblower …” – Chairman Johnson

We all know that whistleblowers play an increasingly important role in rooting out waste and fraud and abuse in government. They are often to raise concerns and highlight instances where we can better serve the American people. The Special Counsel’s office also plays an important role in ensuring that whistleblowers are heard and that they are protected after speaking up.” – HSGAC Ranking Member Tom Carper (D-DE)

[The U.S. federal workforce] depends upon individuals who are willing to step forward … It’s not easy to be a whistleblower, it takes courage. And this position that Ms. Lerner has been re-nominated for guarantees that these laws work properly. I must tell you it does take some courage for people to participate in this system. Ms. Lerner has brought needed stability, professionalism and consistency to the office.” – Senator Ben Cardin (D-MD)

Ms. Lerner has reduced OSCs cost to resolve a case by 45%, leading to record levels of productivity. In 2015 OSC resolved over 6,000 cases, an over 50% increase from the year Ms. Lerner took office. She overhauled the alternative dispute resolution program, as mediation can often save time and money, producing better outcomes. She earned praise from the Government Accountability Project as setting new global gold standards for ADR. When it comes to results … she has consistently set records. The results speak for themselves.” – Senator Cardin

We … cannot allow systematic failures to continue, failures that deny or delay care for veterans or in any way compromise their well being … We need increased accountability and we need it today.” – Senator Jon Tester (D-MT)

OSC’s work with Veteran Affairs whistleblowers has helped to improve the quality of care for our veterans. Chairman Miller of the House VA Committee wrote that Ms. Lerner has been an outstanding Special Counsel who marshaled her office resources admirably to respond to the unexpected wave of VA complaints; she has worked tirelessly to promote accountability and restore confidence in the VA. Therefore I offer my wholehearted support for her confirmation for another term for Special Counsel.” – Senator Cardin  

Hearing Highlights (Nominees)

 “I can say without hesitation that the Office of Special Counsel is engaged in the most productive period in its history. Our strong results … demonstrate this offices ability to promote better and more efficient government. For example, our work with whistleblowers has promoted improvements in the quality of care for veterans and VA centers across the country. We’ve protected customs and border control whistleblowers who reported widespread waste and improper overtime payments at the DHS. And by working with this committee and oversight hearing, Congress passed bipartisan legislation that will save $100 million a year; that is about four times OSC’s annual budget.” – Carolyn Lerner, Special Counsel

In 2015, for the first time in the agency’s history, we received and resolved over 6000 new matters, a 50 percent increase from 2011 when I first took office. The dramatic increase in filings indicates that whistleblowers believe they can make a difference when they come to the OSC.” – Special Counsel Lerner

 “I have also found better ways to manage cases. For example, I reinvigorated our alternative dispute resolution program, because we know that mediation saves time and money for both agencies and employees alike, and it often results in better outcomes. And we are currently experimenting with an innovative approach to managing whistleblower cases. The new approach consolidates four OSC positions into one. This is proving to be both efficient and effective.” – Special Counsel Lerner

I think there is a very good message coming from the top [of the VA] … and that sets a tone that is very important. The problem is that the VA is such a large institution … and that message has to trickle down through the country … but there are things that can be done. More training. The VA is doing a lot more, they can do more … they need to hold managers accountable. One of the missing links is … discipline for managers who are found responsible. We need to work on that. That will help to change the culture.” – Special Counsel Lerner  

 “Department of Homeland Security whistleblowers came to us reporting the [widespread] abuse of overtime by Customs and Border Control agents and other employees at the Department. We were able to do a full investigation and full report. In working with this Committee we were able to get bipartisan legislation through Congress that changes the overtime pay system at the Department of Homeland Security. The Congressional Budget Office estimates that those changes are going to result in $100 million a year of savings. Our budget is about … $24 million right now. That is the type of case that we think we are now capable of taking.” – Special Counsel Lerner

In summary, I am very grateful for the opportunity to have served as Special Counsel, but there is still much to be accomplished. If confirmed for a second term, I hope to build on current successes. I will continue to protect the VA and all other federal employees from retaliation. And we will strive to find new ways to use our limited resources to improve government.” – Special Counsel Lerner

The need to eliminate waste, fraud and abuse, and to promote efficiency and integrity at the VA, may never have been greater … Many of you discuss the important role that whistleblowers play in identifying potential issues. I also believe that whistleblowers are immensely important to the work of the VA Office of Inspector General. If confirmed, one of my goals will be to promote an improved environment in which whistleblowers have confidence that their concerns will be fairly and effectively considered by the Office of Inspector General and that their identities will be protected from disclosure. I will also take the necessary steps to ensure that whistleblowers are fully aware of their right to be free from reprisal for making protected disclosures, and how to seek redress from appropriate authorities if reprisal occurs.” – Michael Missel, DVA IG Nominee

This is something that I have zero tolerance for in terms of any mistreatment of whistleblowers. I share Ms. Lerner’s belief that whistleblowers are very critical to the workings of better government, and one of my goals would be to increase the environment for whistleblowers so that they feel comfortable coming forward and to treat them with respect and dignity.” –Michael Missel