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Protecting Whistleblowers since 1977

Congress Overhauls Rights for VA Whistleblowers

Tom Devine, October 12, 2016

Before Congress adjourned, HR 5325 - Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Prepardness Act, was enacted. Tucked into the bill is language to systematically makeover how the Department of Veterans Affairs (VA) responds to whistleblowers. GAP has represented many of the key whistleblowers whose experiences sparked passage of the law, including Brandon Coleman, whose disclosures of a breakdown in suicide prevention led both to an expanded rebirth of the program but also sustained, ugly retaliation that he eventually defeated with support from the U.S. Office of Special Counsel. The jury is out for GAP and other groups in the Make It Safe Coalition working on the bill whether the new rules will be a net positive or negative for whistleblowers. The new ground rules can be found in 38 USC sections 731-736, and are summarized below.  

POSITIVES

  • Protection against retaliatory investigations (Sec. 733): This is a landmark breakthrough in whistleblower rights that hopefully will be a precedent for the entire civil service. Retaliatory investigations are chilling per se and can hang unresolved over an employee’s professional head for years. They generally serve as the foundation of all employment reprisals, and are the springboard to take retaliatory criminal action against whistleblowers, which increasingly is the harassment of choice. The legislation wisely includes negative peer reviews as part of retaliatory investigations. Peer reviews are uncontrolled internal probes officially for patient care breakdowns, but regularly used to attack whistleblowers. The VA has distorted and exploited these probes, which allow officials to blacklist whistleblowers for life while circumventing both due process and whistleblower laws. Similar conduct can be found within defense agencies when dealing with security clearance issues.                                                                                                                                    
  • Training (Sec. 735): The VA now must provide annual, in-person training to managers and employees in whistleblower rights, including communications with Congress and bans on gag orders. In GAP’s experience, training is unsurpassed as an effective way to prevent retaliation.
     
  • Transfer preference (Sec. 732): Whistleblowers whose disclosures are confirmed and lead to corrective action will have a transfer preference to escape revenge harassment. The Whistleblower Protection Act already provides this benefit for those who win reprisal cases, but this is the first time it has been applied to those who are vindicated.
     
  • Cancelation of bonuses for managers found guilty of prohibited personnel practices (Sec. 734): This provision ends the profit incentive to retaliate, and leads to performance appraisal accountability. For years, bureaucratic bullies have had nothing to lose by engaging in retaliation and have received handsome bonuses that now will be banned when their actions are found illegal.                                                           
  • Accountability for directing contractors to retaliate (Sec. 733): With impunity, government agencies regularly order contractors to retaliate against their own employees who blow the whistle, as a prerequisite for future federal business. This provision creates disciplinary liability for those who order contractor retaliation.
     
  • Annual reports to Congress on the law’s track record (Sec. 736): The VA must provide detailed disclosures on the levels of retaliation complaints and outcomes, as well as action on whistleblowing disclosures.

NEGATIVES

  • Elimination of intra-agency due process (Sec. 733): The law eliminates the Civil Service Reform Act’s general requirement for intra-agency hearings if the alleged misconduct is whistleblower retaliation. This could backfire badly. Intra-agency hearings have been the vehicle to prevent full litigation and unnecessary conflicts. Further, canceling intra-agency hearings could mean railroading whistleblowers, who have long been vulnerable to the Orwellian tactic of being fired for allegedly harassing pseudo-whistleblowers who collude with agency management.
     
  • Uncontrolled central whistleblower office (Sec. 732): The law creates a central whistleblower office, virtually uncontrolled except for independence from the VA Office of General Counsel. In previous experiments at the Federal Aviation Administration and Department of Energy, these offices have operated as traps to identify political threats and cover up their charges as a substitute for independent investigations. Whistleblowers are free to bring their evidence to independent third parties, which GAP recommends as a far safer, more effective alternative.

HIGH-RISK EXPERIMENTS

  • Relaxed standards for protection (Sec. 731): VA whistleblowers will no longer have to demonstrate a reasonable belief for their disclosures of alleged wrongdoing. They will only have to disclose a “potential” act of misconduct. Increased protection for responsible whistleblowers is badly needed by the VA. But since passage of the Whistleblower Protection Enhancement Act, the reasonable belief test has been a fair balance to distinguish between genuine and frivolous disclosures. The danger is that whistleblowers’ credibility generally could be reduced, due to a few employees who take advantage of the new slack.
     
  • Two strikes and you’re out disciplinary penalties (Sec. 733): If there is any finding of retaliation, a supervisor must receive a 12-day suspension for a first offense, and termination for a second. Accountability through tough penalties is long overdue, but the bill cancels the normal foundations for justice. For example, discipline would be mandatory after any negative investigative findings by the Special Counsel or Inspector General. For all other agencies, the Whistleblower Protection Act requires the Special Counsel to win a Merit System Protection Board hearing under tougher standards for discipline than to block retaliation. Until now, no OIG’s have had authority to go beyond investigative reports and act as judge and jury. Combined with already drastically reduced MSPB appeal rights for VA employees and cancelation of intra-agency appeals, this extraordinary power creates vulnerability for a “rush to punish” that easily could sweep genuine whistleblowers into a pre-textual trap without the WPA to shield against abuse.
     
  • Cumbersome disclosure process (Sec. 732): The good news is that this provision will end the tradition of ignoring whistleblowers except to retaliate. From the first line supervisor to the Secretary, the VA will have to respond. The bad news is that the response is a mandatory memo for every disclosure within four days, at each stage in the chain of command. The memo model could create a severe backlash against whistleblowers, and substitute empty paperwork responses for actual work with whistleblowers to make a difference.

On balance, this is a high-stakes, well intentioned but potentially dangerous law with significant breakthroughs but potential land mines for whistleblowers. Congress should monitor its implementation closely, and act on lessons learned rather than viewing the legislation as a final solution.