Now is the Time for VA to Change its Culture

Yesterday, the Senate confirmed Pentagon official Robert Wilkie as the new Secretary for the Department of Veterans Affairs (“Department” or “VA”). Wilkie takes over a federal agency plagued with a culture of toxicity, politicization, and misconduct. Although recent news reports and investigations of VA leadership have been a public relations nightmare for the agency, the prescription for success for the Secretary is rather simple: implement a culture change from the top-down to develop a VA that both performs its duty to veterans and operates in an ethical and productive manner.

A recent Washington Post report found that acting VA secretary Peter O’Rourke removed or reassigned VA staff members perceived to be disloyal to President Trump and his agenda for veterans. The report said that none of the staffers were given reasons for their reassignments. O’Rourke also incorrectly claimed authority over the VA Inspector General in a letter to the Inspector General. Although it would be easy to blame O’Rourke for the Department’s toxic climate, he only took office in May 2018; the systemic issues within the VA long precede the acting secretary.

Following the Washington Post report, the U.S. Government Accountability Office (“GAO”)  identified several issues within the Department regarding employee misconduct, retaliation against whistleblowers, and impunity for senior officials. Perhaps the most troubling finding was that senior officials, who perpetuate the agency’s climate, are held to a lower standard than their subordinates. The following figure shows the outcomes of seventeen misconduct cases against senior officials where disciplinary or adverse action was proposed over a 53-month period. Although twelve of the officials faced proposed actions calling for their removal based on the specific charges, only three officials were actually removed from their position. In total, 71% of senior officials who were guilty of misconduct served lesser or no disciplinary action compared to the original proposed action.

Other issues the GAO identified include:

  • Poor record-keeping – the current information system for recording adverse disciplinary actions does not track employee misconduct across the Department, despite the system having the capability to include and incorporate such models.
  • Poor communication within the Department – VA employee files investigated by GAO did not always contain documentation indicating that employees were informed of the reason disciplinary action was brought against them. The lack of oversight in the VA’s human resource policies increases the risk that employees will not be adequately informed of their rights during adjudication.
  • Lack of Transparency – VA facilities and program offices did not always provide the supporting documentation that they used to reach their conclusions about case referrals. This calls into question whether enough evidence was gathered to make sound conclusions about disciplinary or adverse actions.
  • A clear disregard for procedure – the report found that facility and program offices did not consistently follow policies and procedures for investigating allegations against senior officials. Similarly, senior officials may not have always been held accountable for misconduct, whether disciplinary action was not taken or recommended, or previous disciplinary failures were not considered in repeated offenses.

Whistleblowers provide a public service by exposing illegal or unethical activity within an organization. But whistleblowers in the VA allege that managers in their chain of command took actions against them after they reported misconduct. These alleged actions included reassignment to other locations, reduced access to computer equipment necessary to complete assignments, and social isolation from peers. Whistleblowers also were not provided adequate information by VA on how to document or file a claim of misconduct or retaliation.

The GAO report included sixteen recommendations to the VA, of which the VA concurred with nine and partially concurred with five. According to their comments to GAO, the VA plans to, among other things, have the Secretary direct the Office of Accountability and Whistleblower Protection (“OAWP”) review and issue guidance on how OAWP will discipline senior officials, and develop a functional process to ensure the implementation of whistleblower protections.

Wilkie is now the face of the VA. It is up to him to make sure that the agency implements the recommendations to protect whistleblowers and hold managers that retaliate against them accountable. Cause of Action Institute will continue to conduct oversight to make sure the VA follows through with adopting GAO’s recommendations. We have documented what happens when agencies provide lip-service instead of fixing problems. Our veterans deserve a functional and ethically-operated VA, and that can only start by repairing the climate of the agency from the top.

Chris Klein is a Research Fellow at Cause of Action Institute

The VA’s Acting Secretary Claimed He Has Authority Over the Agency’s Independent Watchdog. He’s Wrong.

Department of Veterans Affairs (VA) acting secretary Peter O’Rourke incorrectly claimed authority over the VA Inspector General (IG) in a letter sent to the IG on June 11 and published by Stars and Stripes on June 20.  In the letter, O’Rourke wrote to VA IG Michael Missal:

“You also appear to misunderstand the independent nature of your role and operate as a completely unfettered, autonomous agency. You are reminded that OIG is loosely tethered to VA, and in your specific case as the VA Inspector General, I am your immediate supervisor. You are directed to act accordingly.”

The letter from O’Rourke was in response to IG Missal’s concerns outlined in a June 5 letter to the VA that claimed the agency was withholding information from the IG, including information about whistleblower complaints. By trying to strongarm the IG, not only is O’Rourke blatantly mistaken in his interpretation of federal law, but his threatening language in the letter is deeply troubling. While the relevant law, the Inspector General Act of 1978, does put IGs under “general supervision” of agency heads, it makes clear that they have their own independent authority:

“Establishment IGs [IG Act, § 3(a)]: The Act specifies that each IG ‘shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment.’ Except under narrow circumstances discussed below, even the head of the establishment may not prevent or prohibit the IG from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” (Emphasis added)

The Council of the Inspectors General on Integrity and Efficiency (CIGIE) explains that “[w]hile by law, IG’s are under the general supervision of the agency head or deputy, neither the agency head nor the deputy can prevent or prohibit an IG from conducting an audit or investigation. The VA’s own Functional Organization Manual states that the VA IG is “an independent oversight entity” that “[h]as authority to inquire into all VA programs and activities.”

Simply put, an IG is an independent entity that operates separately from the oversight of any official within the agency it oversees. The independent authority of the IG ensures that investigators can conduct their work without fear of reprisal.

Cause of Action Institute has often written about the issues of having watchdogs without permanent leadership, but an uncooperative agency is a similar, if not greater, problem for accountability and oversight. The VA’s acting secretary should stop claiming authority he does not have and should not try to hinder accountability at a federal agency that desperately needs it.

Ethan Yang is a Research Fellow at Cause of Action Institute.

Whistleblower Protection Enhancement Act signed into law

At Cause of Action, we are always interested in whistleblower protection. In fact, the fight for government accountability depends on whistleblowers from within the government who are willing to step forward to hold our government accountable.

Today, President Obama signed into law the Whistleblower Protection Enhancement Act (WPEA), furthering protection for those who report government waste, fraud and abuse.

After many years spent in development, the WPEA was presented to the Senate and unanimously passed on November 14, 2012. Soon after, on November 21, President Obama waived the rescission of $11.5 million in funds for several department and agency inspectors generals so they could continue their long-term investigations. The waiver applies to the departments of Commerce, Housing and Urban Development, and Transportation, National Science Foundation and Small Business Administration. The waiver also applies to the Department of Treasury’s inspector general for tax administration.

The new law puts into effect many positive changes:

(1)    It increases protections for whistleblowing to Congress.

(2)    It increases agency responsibility to inform prospective whistleblowers of their rights.

(3)    It requires Inspector Generals to directly appoint assistant IGs for whistleblower protection and investigation purposes.

(4)    It specifically outlines the need to protect against censorship of data and research at federal agencies.


Read more about the WPEA here and listen to Executive Director, Dan Epstein, discuss it here.

Blow the Whistle here.

KMED: Bill Meyer Discusses Whistleblower Protection with Dan Epstein

Jump to minute 21:00 to hear Dan Epstein discuss whistleblower protection.

Dan Epstein – Bill Meyer Show – May 23, 2012

G Gordon Liddy Discusses Whistleblower Protection with Dan Epstein

Dan Epstein – G Gordon Liddy – May 24, 2012

Roll Call: Epstein: Culture Must Protect Fed Whistle-Blowers

Epstein: Culture Must Protect Fed Whistle-Blowers

By Dan Epstein
Special to Roll Call

Hollywood glorifies them, the media lauds them as heroes, and Members of Congress wave bills around asserting to protect them, but are federal whistle-blowers being retaliated against by their own agencies?

The recent General Service Administration and Secret Service scandals have shone a light on the lack of protection for whistle-blowers, despite laws in place that should safeguard them. GSA employees are afraid of retaliation, according to Inspector General Brian Miller. Administrator Jeff Neely threatened that his employees would be “squashed like a bug” if they spoke out against spending abuses.

Yet some insiders are choosing to brave the storm and stand up to the government to expose fraud and waste. The Senate Homeland Security and Governmental Affairs Committee received calls from agency insiders providing tips for the panel’s probe of the misbehavior of Secret Service agents in Colombia. Numerous federal agency insiders are contacting government watchdogs with information concerning waste, fraud and mismanagement. Are these signs that something is truly rotten in Washington, D.C., or only symbolic of a vain hunt for government carrion?

In the current administration, whistle-blowers should know the policies and procedures in place that offer them protection. As virtually his first act in office, President Barack Obama issued an ethics pledge to all executive branch appointees mandating that, “the head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish such rules or procedures … as are necessary or appropriate to ensure that every appointee in the agency signs the pledge upon assuming the appointed office.”

Because of the president’s stated commitment to ethics, Cause of Action asked the Office of Government Ethics to disclose whether the GSA violated the Standards of Ethical Conduct for Employees of the Executive Branch.

Neely’s Las Vegas boondoggle was clearly wasteful, but it may also signify something deeply unethical about federal employee conduct.

A system of accountability is only as effective as the employees charged with its use. Cause of Action continues to await disclosure by the Office of Government Ethics of any documents that may reveal violations of ethics rules by the GSA as well as disclosure by the Office of Special Counsel of complaints made against the GSA by current or former employees who were silenced or retaliated against for blowing the whistle.

The president entered office promising to “strengthen whistle-blower laws to protect federal workers who expose waste, fraud and abuse of authority in government.”

Although little-known even on Capitol Hill, the Council of Inspectors General on Integrity and Efficiency exists to oversee and evaluate federal agencies in their accountability, including their maintenance of procedures designed to protect federal whistle-blowers. Jeffrey Zients, chairman of the council and acting director of the Office of Management and Budget, has been asked to conduct an agency-wide audit, evaluation and investigation to assess the state of whistle-blower protection within the federal government and respond to those violations of ethical rules and whistle-blower laws that have occurred.

Effective government cannot take place if whistle-blowers are threatened into silence. With the recent scandals that have come to light, it is time to determine whether agencies are committed to protecting whistle-blowers. If the government fails to defend those employees who blow the whistle on waste or fraud, then the government effectively endorses a culture of reckless spending and unaccountability.

As economic growth has slowed in an already economically embattled America, now is the key time to commit to government efficiency. As several Members of Congress recently pointed out, “Cutting the fat and tightening the belt are things that all American families do. It’s wrong if the federal government refuses to do the same.”

Investigating and exposing waste in the government not only has the salutary effect of increasing accountability, but it has a concomitant influence on the government’s culture of spending. While requests were made to 32 federal agencies for records on spending on commemorative coins and awards, one might label gift spending as negligible compared to, say, Department of Defense contracts yielding illegal kickbacks. Conceded, but spending taxpayer dollars on commemorative items reveals just how numb our tax-dollar-funded federal employees have become to the idea of self-stewardship.

Callousness toward wasteful spending and a corresponding vitriol toward whistle-blowers has become epidemic in Washington. A first step to curing Washington of its culture of waste is to treat the illness by promoting and maintaining a culture that protects whistle-blowers. Only then will the president’s ethics pledge avoid what taxpayer-funded commemorative coins have turned out to be: of empty value.

WPEA under the Spotlight: Disclosure of Scientific Censorship

From MSPB Watch, an insight into the WPEA:

WPEA under the Spotlight: Disclosure of Scientific Censorship


WPEA under the Spotlight is a new running feature that will explore the provisions of the Whistleblower Protection Enhancement Act, currently being debated in Congress. This entry covers the disclosure of scientific censorship section of Senate Committee Report No. 112-155, which accompanies S. 743RS.


M. Disclosures of scientific censorship

The Committee has heard concerns that federal employees may be discouraged from, or retaliated against for, disclosing evidence of unlawful or otherwise improper censorship of research, analysis, and other technical information related to scientific research. Although disclosures of such censorship may be protected as a disclosure of a legal violation or of an abuse of authority under the WPA, uncertainty on this specific issue may cause confusion and inhibit disclosure. It is essential that Congress and the public receive accurate data and findings from federal researchers and analysts to inform lawmaking and other public policy decisions.

In order to encourage the reporting of improper censorship, section 110 of S.743 would specifically protect employees who disclose information that the employees reasonably believe is evidence of scientific or technical censorship that may cause gross government waste or mismanagement, or a substantial and specific danger to public health or safety, or that violates the law. This definition of protected disclosures is nearly identical to the general definition of protected disclosures that do not relate to censorship. This is intended to make unmistakably clear that employees are protected for disclosing scientific censorship in the same manner as they are protected for making any other disclosure.

Section by Section Analysis

Section 110—Disclosure of Censorship Related to Research, Analysis, or Technical Information

This section clarifies that an employee is protected from reprisal under the WPA for disclosing information that an employee reasonably believes is evidence of censorship related to research, analysis, or technical information that is or will cause gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.