VA's Whistleblower Office Retaliated Against Whistleblowers And Buried Complaints

from the as-usual-we-are-all-shocked-SHOCKED-that-this-would-turn-out-this-way dept

I think President Trump likes the idea of whistleblowers. As long as they're coughing up tips about Deep State conspiracies against the administration, he's probably cool with it. No one's done that yet, so he's stuck battling whistleblowers who are blowing the whistle in his general direction.

Whistleblower protections aren't what they should be. There are laws on the books and guidelines in every agency policy manual that affirm the need to protect whistleblowers from retaliation. Those who have actually blown the whistle -- and used the proper channels -- realize those pretty words don't mean much when government agencies and officials are deeply invested in self-preservation. Trump's call to unmask the Ukraine phone call whistleblower is just a very public expression of the federal government's general antipathy towards accountability.

An office set up by the Trump administration specifically to collect evidence of misconduct and wrongdoing at the Department of Veterans Affairs has done the opposite of what was asked of it. The VA's Inspector General was asked to investigate by several senators who raised concerns about the office's refusal to implement whistleblower protections. It seemed to prefer to engage in retaliation, as the OIG report [PDF] confirms.

The office Trump established -- the VA Office of Accountability and Whistleblower Protection (OAWP) -- turned out to be completely misnamed. Some of this the Inspector General has chalked up to insufficient training and unclear policies. But what's detailed in this part of the report looks like nothing more than people doing the wrong thing intentionally to protect the people they actually want to protect -- a group that doesn't include whistleblowers.

From June 2017 to May 2018, the OAWP referred 2,526 submissions to other VA program offices, facilities, or other components that were not all equipped to undertake such investigations and without adequate measures to track the referrals or safeguards to protect whistleblowers’ identities. Of these, at least 51 involved allegations of whistleblower retaliation by a supervisor (and so properly within the investigative authority of the OAWP). Complainants were not always advised of these referrals. Without guidance, OAWP personnel did not take sufficient steps to protect complainants’ identities and prevent their concerns from being sent to the very facilities or network offices where the complainant worked or that were the subject of the allegations. The OAWP also failed to establish safeguards sufficient to protect whistleblowers from becoming the subject of retaliatory investigations. One troubling instance involved the OAWP initiating an investigation that could itself be considered retaliatory. At the request of a senior leader who had social ties to the OAWP Executive Director, the OAWP investigated a whistleblower who had a complaint pending against the senior leader. After a truncated investigation, the OAWP substantiated the allegations without even interviewing the whistleblower. In addition, former OAWP leaders made comments and took actions that reflected a lack of respect for individuals they deemed “career” whistleblowers. Moreover, at a time when the office was failing to meet its statutory requirements and purposes, then Executive Director Nicholas directed about 15 percent of the OAWP’s FY 2018 budget to be obligated for contracts beyond its core mission.

The new office was charged with investigating "all allegations and concerns." This tagline was featured on its website, sending the public the message that it was serious about its job. It wasn't.

From June 23, 2017, to December 31, 2018, the OAWP Triage Division received at least 3,694 submissions. Of these, only 547 were referred by the Triage Division to the Investigations Division… The OAWP’s advertised mission of investigating “all allegations and concerns” was not consistent with its practices…

The OAWP also failed to forward complaints it was specifically instructed to forward to the Inspector General. These complaints that never reached the OIG included those dealing with abuses of authority and/or criminal violations. When accountability is the goal -- as would seem to be the point of the Executive Order creating this office -- it would make sense to put as many eyes on big issues like this. That didn't happen either. The Inspector General singles out one case of several it never saw until it opened its own investigation of the OAWP.

In April 2018, the OAWP received allegations that a Covered Executive was engaging in contracting abuse, conflicts of interest, and violations of federal ethics rules. Some of these matters included alleged abuses of authority and/or potential felony criminal violations. These allegations were bundled with several others that included whistleblower retaliation and issues within OAWP’s scope. The OIG could locate no records in OAWP’s or OIG’s databases indicating that the contracting abuse, conflict of interest, and ethics allegations had been referred to the OIG despite possibly involving felony violations of federal laws on receiving gifts, making false statements, or other related crimes.

The whole thing is a mess. Whatever's not being undercut by unclear policies or retaliatory actions is being rendered useless by the general ineptness of this additional layer of bureaucracy.

The OAWP lacks comprehensive policies and procedures suitable for its personnel. This is particularly important given that individuals’ reputations are at stake, whistleblowers’ identities must be protected, and the issues on which the OAWP is reporting affect veterans’ lives in tremendously significant ways. Staff are either missing guidance or are piecing together direction largely based on the mandates of a prior office not entirely aligned with OAWP’s legislative scope. The absence of quality control measures is particularly troubling given the hodgepodge of policies and procedures. Depending on disciplinary officials and VA’s Office of General Counsel to identify OAWP’s investigatory inadequacies cannot be a sustainable solution to effective oversight.

This hodgepodge extends to training and staffing. It all adds up to the VA understanding at some level that its survival depends on it not understanding this directive. Failing at multiple levels keeps complaints from rising to a level where the VA and OAWP might feel compelled to take action. And it was successful -- at least up until the IG completed its investigation -- to keep this chaotic charade off the radar of legislators.

This effort may have been Trump's nod to his promises to "drain the swamp." But this office sank into the swamp almost immediately after its creation in April 2017.

From July 2017 to November 2017, the OAWP received four submissions from four different individuals relating to allegations involving Peter Shelby, who was then serving as VA Assistant Secretary for Human Resources and Administration. The allegations included retaliation, harassment, discrimination, and creating a hostile work environment. By the time the allegations were under OAWP review, Mr. Shelby had developed a personal relationship with Mr. O’Rourke (then the OAWP executive director) and Mr. Nicholas (then a senior advisor to the OAWP), which included golf outings and other social engagements. Beyond social engagements, Mr. Shelby had influence over matters of importance to Mr. O’Rourke and Mr. Nicholas. For example, on September 19, 2017, Mr. Nicholas wrote to Mr. Shelby, “Please don’t forget to see about a waiver on my retired annuity. It is a fairly large sum of money for me . . .” Emails reflect that Mr. Nicholas pressed Mr. Shelby for assistance in obtaining the waiver through at least October 2017 and that the matter remained an open question through February 2018. Email correspondence reflects that, as of March 9, 2018, the Investigations Director had completed the OAWP investigation and was drafting the report. The report was finalized on May 21, 2018, and it concluded that allegations against Mr. Shelby were not substantiated.

Trump actually tried to do the right thing. But this office was set up hurriedly and turned over to people who apparently had little desire to clean up the Department. The OAWP seems far more interested in burying whistleblowers and their reports. It appears to believe its job is to keep the boat from rocking, no matter how troubled the seas nor how agitated its passengers.

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Filed Under: retaliation, va, whistleblower, whistleblowing