VA employee advocates, lawmakers contend new law targets low-level workers and whistleblowers
By NIKKI WENTLING | STARS AND STRIPES Published: July 17, 2018
WASHINGTON — Some lawmakers expressed concern Tuesday that the Department of Veterans Affairs is using a new law to target low-level workers and retaliate against whistleblowers.
The VA Accountability and Whistleblower Protection Act was approved a year ago by Congress and heralded by President Donald Trump as a fix-all to root out a culture of corruption at the VA. It removed barriers to firing VA employees and created the Office of Accountability and Whistleblower Protection to oversee disciplinary actions and investigate misconduct and instances of whistleblower retaliation.
Some lawmakers, advocates and union representatives argued Tuesday a disproportionate number of low-level workers were terminated, demoted or suspended under the new law. Since the beginning of 2018, more than 1,000 VA workers have been fired – 15 of whom were supervisors. Hundreds worked in custodial services, food service and housekeeping.
“I want to make it clear that while this law made it easier to discipline poor employees, it did not give VA the license to use this authority to target employees, no matter their position or grade, or to retaliate against whistleblowers,” Rep. Phil Roe, R-Tenn., chairman of the House Committee on Veterans’ Affairs, said Tuesday during a hearing.
Jacqueline Garrick, who founded the nonprofit Whistleblowers of America, wrote in testimony that the new VA Office of Accountability and Whistleblower Protection wasn’t responsive to whistleblowers’ concerns. She argued whistleblowers wouldn’t trust an office inside VA headquarters to handle their complaints and she asked Congress to shift resources to independent agencies, such as the Office of Special Counsel.
J. David Cox, president of the American Federation of Government Employees, argued the new law had backfired. AFGE is a union representing approximately 250,000 VA workers.
In scathing testimony, Cox claimed the new law has led to low morale and fear among the VA workforce.
“Due process and having those checks and balances is the way we avoid having a politicized federal workforce, and now when have employees who can be fired at will,” he said. “I think it creates fear, and when you have fear in an organization, you never have the best performance.”
VA Secretary Peter O’Rourke, who led the Office of Accountability and Whistleblower Protection much of the time it’s been in existence, defended the VA’s use of the new law. He argued there hasn’t been a significant increase in firings since the law was introduced.
“It’s in the data,” O’Rourke said. “When we look back to 2014 and forward, you don’t see a significant difference from year to year in unrealistic firings or removals of any category of employee.”
He said the office tracks the complaints it receives, a practice that can identify “hotbeds of misconduct” where they can focus their resources.
“The desired end state is to be proactive instead of reactive,” O’Rourke said.
Despite O’Rourke’s attempts to reassure lawmakers, some of them remained worried about the unintended consequences of the law.
“I think people on both sides of the aisle are gravely concerned about this,” said Rep. Mark Takano, D-Calif. “I am very troubled by how I am seeing the implementation of this.”
In June, four Democratic senators called on the VA Inspector General to initiate an investigation into how the Accountability Act was being put to use, citing a lack of transparency about it.
About the same time, O’Rourke and VA Inspector General Michael Missal had a public feud over access to information about what the accountability office was working on. Missal sought help from Congress to obtain employee complaints submitted to the office that he said were being inappropriately withheld.
In letters, Missal accused O’Rourke of working to hinder his oversight duties, and O’Rourke lambasted Missal, describing him and his staff as unprofessional, biased and reckless.
When asked about it Tuesday, O’Rourke claimed he had allowed Missal “unfettered access” to the office “since day one.”