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Hearing Transcript on Evaluating the U.S. Department of Veterans Affairs Office of General Counsel.
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EVALUATING THE U.S. DEPARTMENT OF VETERANS AFFAIRS OFFICE OF GENERAL COUNSEL
HEARING BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON VETERANS' AFFAIRS U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION JUNE 30, 2010 SERIAL No. 111-88 Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE For sale by the Superintendent of Documents, U.S. Government Printing Office
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CORRINE BROWN, Florida |
STEVE BUYER, Indiana, Ranking |
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Malcom A. Shorter, Staff Director SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Veterans' Affairs are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined. |
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C O N T E N T S
June 30, 2010
Evaluating the U.S. Department of Veterans Affairs Office of General Counsel
OPENING STATEMENTS
Chairman Harry E. Mitchell
Prepared statement of Chairman Mitchell
Hon. David P. Roe, Ranking Republican Member
Prepared statement of Congressman Roe
WITNESSES
U.S. Department of Veterans Affairs, Hon. Will A. Gunn, General Counsel
Prepared statement of Mr. Gunn
Tully, Matthew B., Esq., Founding Partner, Tully Rinckey PLLC, Albany, NY
Prepared statement of Mr. Tully
MATERIAL SUBMITTED FOR THE RECORD
Follow-up Information and Post-Hearing Questions and Responses for the Record:
EVALUATING THE U.S. DEPARTMENT OF VETERANS AFFAIRS OFFICE OF GENERAL COUNSEL
Wednesday, June 30, 2010
U. S. House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Veterans' Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in Room 334, Cannon House Office Building, Hon. Harry E. Mitchell [Chairman of the Subcommittee] presiding.
Present: Representatives Mitchell, Adler, Roe, and Bilbray.
OPENING STATEMENT OF CHAIRMAN MITCHELL
Mr. MITCHELL. Good morning, and welcome to the Veterans' Affairs Subcommittee on Oversight and Investigations' hearing on Evaluating the U.S. Department of Veterans Affairs Office of General Counsel.
And this meeting will come to order. This is June 30th, 2010.
I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and that statements may be entered into the record. Hearing no objection, so ordered.
Each day, the U.S. Department of Veterans Affairs (VA) executes laws, regulations, and policies that have a profound effect on how the Department conducts its business and assists our Nation's veterans.
The General Counsel serves as the VA's Chief Legal Officer as the Office provides legal advice to the Secretary and all organizational components of the Department. It is no secret that the VA's General Counsel or OGC plays a critical role in the decision making and oversight of the VA.
The OGC is a unique and complex office within the VA and its full range of responsibilities including legal, litigation, legislative, and regulatory activities is distributed among seven professional group staffs, each headed by an Assistant General Counsel.
Each of these groups has the expertise in specific subject areas and is responsible for providing legal advice to program officials, reviewing proposed regulations and directives, and handling litigation involving VA programs.
Additionally, the OGC operates 22 field offices which comprise almost two-thirds of OGC's workforce. With the General Counsel's widespread workforce, the OGC must promote consistency and uniformity of its recommendations that lead to executive decisions that directly impact millions of veterans.
We have heard many times that the OGC has repeatedly used time extensions from the court in order to keep pace with their workload. However, their workload is so great that it continues to remain an ongoing issue.
Additionally, we have too often heard from various Department entities that documents crucial to this Subcommittee's work are tied up with the General Counsel's Office or that they are restricted by the OGC for release.
Though OGC insists that the oversight responsibilities of Congress deserves respect, there is often at times a tension between the oversight responsibility and the Agency's needs to protect certain predecisional information from disclosure out of concern that it could have a chilling impact on the free and open internal discussion and debate leading to the provision of advice needed by Agency decision-makers.
As the VA OGC deals with these challenges, they must still continue to give timely and balanced legal recommendations that will benefit the needs of our veterans and the Department of Veterans Affairs.
Determining an objective standard to evaluate a subjective trait is a challenge. Nonetheless, the General Counsel needs to bring reform to the VA's Office of General Counsel.
I look forward to hearing from the General Counsel the challenges the office is facing as well as solutions that are being implemented to correct long-standing issues within the office.
[The prepared statement of Chairman Mitchell appears in the Appendix.]
Mr. MITCHELL. And before I recognize the Ranking Republican Member for his remarks, I would like to swear in our witnesses. I ask that all witnesses stand and please raise their right hand from both panels.
[Witnesses sworn.]
Mr. MITCHELL. Thank you.
Now I would like to recognize Dr. Roe for opening remarks.
OPENING STATEMENT OF HON. DAVID P. ROE, RANKING REPUBLICAN MEMBER
Mr. ROE. Thank you, Mr. Chairman.
According to the VA Web site, the mission of the VA Office of General Counsel is to identify and meet the legal needs of the Department of Veterans Affairs. Its primary objective is to ensure the just and faithful execution of the laws, regulations, and policies that the Secretary has responsibility for administering and by doing so, enable a Department to accomplish its mission of service to our Nation's veterans.
In recent years, Congress has increased the budget allocation to the Office of General Counsel to assist them in meeting this mission. With the current 9.2 percent budget increase for fiscal year 2010 and the requested 9.6 percent increase for fiscal year 2011, it is appropriate to call this hearing to review the work of the Office of General Counsel and to make certain that the product produced by that office is providing the best benefit to our Nation's veterans and the American taxpayer.
Over the past several years, this Committee has reviewed a number of contracting issues where it was apparent that the guidance provided by the VA General Counsel was insufficient, inaccurate, or lacking.
Recent VA Office of Inspector General (OIG) reports on contracting have shown deficiencies within the Office of General Counsel with respect to supporting contract management.
I am interested in hearing from the General Counsel on how its resources have been allocated to improve contract management at the Department.
I also want to know if the General Counsel plans to improve the relations between the Contracting Officers and the Regional General Counsel so that they actively seek their advice on major contract awards prior to an award being granted.
Does the General Counsel perform pre- and post-award contract reviews on all contracts?
I am also interested and concerned about delays we frequently hear about during meetings on the concurrence process for directives issued by the Veterans Health Administration.
Often we are told that a directive is being held up by the General Counsel's Office. These delays in providing legal opinions can lead to delays in updated treatment information being sent to the VISNs (Veterans Integrated Service Networks) and medical facilities and may cause problems with patient care.
The bottom line here is that we make certain that the resources Congress provides to VA are being allocated properly in order to provide the most benefit for the veterans and the American public at the best possible value.
Given the current track record of the General Counsel in contracting matters, I am uncertain if this is the case.
Mr. Chairman, thank you for holding this and I yield back my time.
[The prepared statement of Congressman Roe appears in the Appendix.]
Mr. MITCHELL. Thank you.
Mr. Bilbray?
Mr. BILBRAY. I have no opening statement, Mr. Chairman.
Mr. MITCHELL. Thank you.
At this time, I would like to welcome panel one to the witness table. Joining us on our first panel is Matthew Tully, Founding Partner of Tully Rinckey, PLLC.
I ask that all witnesses from both panels stay within 5 minutes for their opening remarks. Your complete statements will be made part of the hearing record.
And I also would like to let everybody know that votes may be called at any time, so we may have to go vote, and come back.
Thank you.
Mr. Tully.
STATEMENT OF MATTHEW B. TULLY, ESQ., FOUNDING PARTNER, TULLY RINCKEY PLLC, ALBANY, NY
Mr. TULLY. Thank you.
Chairman Mitchell, Ranking Member Roe, and Members of the Subcommittee, on behalf of the Tully Rinckey Law Firm and our Department of Veterans Affairs' employee clients, I would like to thank you for the opportunity to present my evaluation of the VA Office of General Counsel.
As the Founding Partner of a law firm that deals extensively with the VA OGC and its Regional Offices on employment law issues, the matter of today's hearing is of particular importance to me.
Seventy-five years ago, the Supreme Court issued an opinion implying that government attorneys must practice to a higher standard of ethics than private attorneys. Unfortunately, my fellow employment law attorneys and I have witnessed violations of the ethical standards for government lawyers laid out by the Supreme Court and various Bar associations, including the tendency of VA lawyers to treat managers like private clients, zealously representing them without any concern for the person aggrieved in an employment action.
For example, a fellow attorney had witnesses privately badgered about their testimony by a VA lawyer prior to a hearing. A VA lawyer threatened disciplinary action against VA employee witnesses if their testimony did not conform to the Agency's desires.
In my firm's dealings with the VA Office of General Counsel, VA lawyers have utilized numerous litigation tactics that would have made the lawyers for BP, AIG, or Enron proud.
In one case earlier this year, our client was demoted based on charges of misconduct and our firm appealed the VA decision to the Merit Systems Protection Board (MSPB).
The VA lawyer in this case failed to respond to our discovery requests and even our motion to compel discovery. This unprofessional conduct translated into greater financial cost for our client.
Due to the VA's tactics on employment law matters, VA employees are often denied quality legal representation because law firms like mine that handle Federal-sector employment law issues avoid accepting VA cases because of the legal and financial burdens of working with the VA lawyers or alternatively charge VA clients higher initial retainers.
My firm has represented many VA employees who enforce their legal rights pursuant to the Uniformed Services Employment or Reemployment Rights Act of 1994, also known as USERRA.
In 2003, the Court of Appeals for the Federal Circuit found that Federal agencies improperly charged members of the National Guard and Reserve military leave for non-workdays. In order to remedy these wrongs, hundreds of VA employees who had been improperly charged military leave were able to file claims with the Merit Systems Protection Board in order to recover lost benefits.
These claims often require the assistance of employment law attorneys like myself due to the difficulty in obtaining evidence needed to win the case. It has been my experience in these cases that VA lawyers often maliciously extend the legal process, causing VA employees to incur further financial loss and legal stress.
By exhausting the litigation process until the day before or even hours before the actual hearing on the merits, VA lawyers force legal bills to increase.
More striking, after some initial stonewalling, the VA ultimately provided the veteran with the relief originally requested minus attorneys' fees and litigation costs. This strategy known as mooting means the VA avoids paying attorneys' fees despite the clear use of stalling tactics. This is both costly and taxing to the VA employee, the law firms that represent these employees, as well as the VA whose resources are diverted from complying with the laws that protect veterans to irrelevant legal strategizing.
This tactic serves no legitimate purpose but to discourage attorneys like myself from taking these cases on behalf of VA employees.
For example, in one case, the VA restored to our client shortly before a hearing 34 days of annual leave. However, the VA lawyer specifically stated in writing that if our client elected to proceed with the claim through the MSPB as allowed by law and requested attorneys' fees, the VA would "resist any petition for the same for the reason that the appeal is unnecessary, needlessly confrontational, and a wasteful method of resolving this dispute."
This clear retaliation against our client for exercising his lawful right had a chilling impact on law firms who represented VA employees, as well as other VA employees who became afraid to file legal proceedings to recover damages from the VA's unlawful employment practices because of the costs involved in such actions.
In many of the claims that did get filed with the MSPB, legal costs substantially outweighed the payment returned to the employee for the wrongs they suffered due to the outrageous legal tactics of the VA's lawyers.
In order to alter the current course of the VA Office of General Counsel, I believe they should be held to the same or similar standard and scrutiny currently followed by the U.S. Department of Justice (DoJ). The Department of Justice Office of Professional Responsibility reports directly to the Attorney General and investigates allegations of misconduct concerning DoJ attorneys.
This would both deter VA lawyers from acting unethically and give the Department as a whole a newfound legitimacy. By doing so, the VA Office of General Counsel would become a model for ethical legal practices across all Federal agencies.
As a service-disabled veteran of the Iraq War who was active in providing pro bono legal services in the compensation and pen arena, I can also tell you that having an independent Office of Professional Responsibility would be helpful given the VA OGC's role of approving opposing counsel's lawful right to appear on behalf of veterans during the comp and pen process.
This accreditation of opposing counsel is ripe for abuse or at the very least the appearance of abuse and an Office of Professional Responsibility would help increase the oversight in this important process.
I hope that I have provided valuable insight to this Committee and I hope it brings about positive change.
[The prepared statement of Mr. Tully appears in the Appendix.]
Mr. MITCHELL. Thank you.
In your testimony, you discuss the OGC's lack of concern for the person aggrieved and employment action is in contravention of ethical duties required of attorneys.
Can you speak more about the ethical duties required of attorneys in the VA and how VA fails to meet the standard?
Mr. TULLY. Absolutely, Mr. Chairman.
The VA attorneys have an obligation not to the manager that is involved in the employment dispute but to the taxpayers and to the government as a whole.
I am a legal mercenary. I go to the highest bidder and I do my best to protect the people that retain me.
The VA attorneys do very similar things, but that is not their job. Their job is to protect the taxpayers. Their job is to make sure justice is done. And routinely in these Equal Employment Opportunity Commission (EEOC) cases in particular, they spend a great deal of time trying to protect the manager that allegedly and has been often proven to have engaged in unlawful conduct versus doing what is right for the person that was subjected to injustice.
Mr. MITCHELL. Again, in your statement, you discuss instances of OGC's engaging in unnecessary legal discovery requests with private counsel and refusing to submit discovery despite legal requests and failing to adhere to key legal deadlines.
Are there any penalties that the VA attorneys face for not complying with these legal requirements and, secondly, what penalties would attorneys in the private practice face if they did the same thing?
Mr. TULLY. Yes. There are motions to compel, but there are no financial penalties that could be imposed on the Agency. There could be sanctions in the case.
So, for example, if I was a VA attorney and I did not meet the discovery deadline, some of that information that would have been relevant in discovery could be excluded. But the EEOC and the MSPB do not have the authority to impose financial sanctions.
If this was in Federal District Court and I did that, I would be subjected to disciplinary action ranging from disbarment, suspension, as well as financial liability.
Mr. MITCHELL. But not if you were working with the government or OGC?
Mr. TULLY. Not before an administrative agency, no.
Mr. MITCHELL. Why do you think unprofessional conduct by the VA attorneys goes unchecked and what could the General Counsel for the VA do about this?
Mr. TULLY. Having spoken with my colleagues at the National Employment Lawyers Association at a recent convention about this, the problems seem to have occurred in the late 1990s, early 2000 before 9/11 when the VA Office of General Counsel had presidential appointees that were trying to instill a private law firm mentality into the Administration.
And many of the things that they did were very favorable, but this aspect of zealously representing a client to the point of exceeding the ethical bounds is unfortunately one of the things that they did bring in that I as a private attorney can do. As long as I stay within ethical bounds, I can zealously represent my client whether or not they are right or wrong. The VA has to protect the person who is aggrieved.
What I think the Office of General Counsel can do and specifically Colonel Gunn, and I believe he is trying to do that, is instill integrity amongst the career employees within the VA OGC. And he has an upward battle because this is years, decades of this type of mentality going out there.
And it has worked to some degree. Many VA employees cannot find quality legal representation, which keeps the employment law complaints down or the ones that are filed are filed pro se and there is a much higher loss rate when there is a pro se person versus somebody represented by myself or one of my colleagues in my law firm.
Mr. MITCHELL. And one last question. Your testimony describes mooting.
Mr. TULLY. Mooting.
Mr. MITCHELL. And how the VA employs these filing techniques throughout the case. Can you explain what mooting is and how it adversely affects veterans and how the General Counsel is in the best position to remedy this?
Mr. TULLY. Absolutely. The General Counsel, previous General Counsel, I believe in 2007, issued a directive that in these USERRA claims involving Butterbaugh that the cases are to be immediately mooted upon presenting of evidence.
Under the way the current USERRA law is, you do not get attorneys’ fees unless there is an adjudication on the merits. So until that MSPB Judge smacks the hammer down and says, VA employee A, you are awarded, you know, $1,000 or $2,000, the client could be stuck with attorneys’ fees.
So we actively obtained the records needed to establish the case. Part of the discovery, because we are honest and forthcoming, we turn that discovery over to the VA and the VA takes that information and immediately begins processing the payment to the client, that a client receives the payment hours if not days before the hearing. The case gets mooted and there is no award of attorneys’ fees.
So our firm put in several thousand dollars into the case and ultimately we do not recover. And because it is veterans, we try not to recover against those veterans, especially if they only receive $2,000 or $3,000 because of the damages that they suffered at the hands of the VA and they ran up $3,000 or $4,000 in legal bills. I, as a service-disabled veteran, am not going to charge that to that employee.
So ultimately I am holding the bag for hundreds of thousands of dollars in bad debt because the VA moots cases.
Mr. MITCHELL. Thank you.
Dr. Roe?
Mr. ROE. Thank you, Mr. Chairman.
I will start with the mooting. It reminds me of basketball. When Dean Smith played the four corners offense, you just keep throwing the ball around until the time runs out.
And what happens, I think, is that, and I have seen this, and if you want to make someone like me sweat is have an Obstetrician/Gynecologist doctor have a lawyer come in the office. That really sweats us and we do not like that. And most people do not. They are intimidated by the process.
And the longer they can make it harder for that person, the less likely they are to get you to represent them because you really are pushing yourself away from the table if you know you are not going to recover your time. I understand that and I get that.
Is there an entity, and maybe you are the wrong person to ask this of, is there an entity that oversees the ethical conduct of VA attorneys? Is there some structure?
Mr. TULLY. There is confusion about that. I spoke with Colonel Gunn before this and specifically laid out an example in 2007 where my law firm was subjected to egregious ethical conduct, that an impartial Administrative Judge confirmed was unethical conduct.
We found out the jurisdiction in which that attorney was admitted. We notified the Bar of that State. That State said because it is a Federal practice and because it was before a Federal administrative agency, they do not have jurisdiction.
We then contacted the VA Supervisor who said they do not have any Office of Professional Responsibility and told us to contact the Office of Inspector General. Filed a complaint with the Office of Inspector General, never to be heard from again.
Mr. ROE. So really there is not any—
Mr. TULLY. Exactly. And that is why a Professional Standards Office would be perfect, especially in the Compensation and Pension practice arena where they accredit their opposing counsels.
Mr. ROE. I guess the other thing that is difficult in here, because it is shades of gray, where you would expect the VA attorney to vigorously, if they felt they were right, support their side of the case. I certainly understand that.
And I guess the question is, when does it step over the line? That is tough. And it is a gray area, I would assume.
Mr. TULLY. Some of it is not, Dr. Roe. The written testimony I submitted talks about fraudulently dating documents and I provided specific case references in that case. That is egregious. That person should be fired. That person should not be practicing as an attorney. Where do you go with that?
And that is just one example. The information I provided in the written testimony with names and docket numbers is the tip of the iceberg because I only limited it to a handful of employment law cases.
Mr. ROE. No question you are right. If somebody fraudulently changes a date, I agree they should be fired. You cannot believe anything they say.
Mr. TULLY. Exactly.
Mr. ROE. I totally agree with that.
Mr. TULLY. But right now there is nobody to go to.
Mr. ROE. Nobody to go to. As an attorney, how do you think the VA Office of General Counsel is doing? I mean, are they representing the government appropriately or overdoing it or underdoing it? How do you see it?
Mr. TULLY. My personal impression is that they are understaffed in their employment law section. They are overwhelmed. They are doing—as an overall system, they are not bad people. They are good, hard-working Americans. There are a handful of bad apples. But generally they are doing as good as they can do with the short staff that they have and the volume of cases that they have.
And their intimate involvement with the managers is something that I have not seen at any other Agency. They are actively involved in the day-to-day management of employment law with the deciding officials. And that kind of zaps a lot of time and energy so versus at other agencies, DoJ, Department of Labor, they, the managers, make the decisions and get the attorneys to rubber stamp it.
Mr. ROE. So generally you are thinking that in plain language you do not think that they are acting as an institution unethically? You think they are just overwhelmed and there may be a few bad apples, is that—
Mr. TULLY. Absolutely. And those few bad apple have been around for a while and they need to go. And, unfortunately, there is nobody around that is able to collect all of the information on those bad apples to build a case to get rid of them.
Mr. ROE. I would think, I know that if you want to lose a medical malpractice case, all you have to do is alter a document and you have lost it right then. You do not need to go any further.
And I would think if you altered a document, I mean, to me, that is as dishonest as you can get. When you are lying on a court of law, I would think it would be perjury or something. I do not know the legal part. But if you have done that to alter an outcome, I mean, that is just over the top, I think.
Mr. TULLY. I tend to agree. The downside, what quickly happens is when those attorneys are caught in that type of situation, the cases are almost automatically settled because the Department of Labor attorney knows that they are caught, goes back to the deciding official, and says give me $50,000 and make this go away and I want a confidentiality clause.
And our clients are trying to keep their job and they want a little bit of money. They are going to sign that. So it is a self-fulfilling prophecy with the way the current system is set up because there is no independent person that we can call and say, hey, the only reason why they are doing a settlement right now is, you know, we got them.
Mr. ROE. Well, I want to thank you for your service to our country.
And I yield back.
Mr. MITCHELL. Thank you.
Mr. Adler?
Mr. ADLER. Thank you, Chairman.
Let me followup on Dr. Roe’s comments. First, I also thank you for your service to our country and I thank you for this ongoing service you are providing, telling Congress about some anomalies, some outliers in the otherwise ethical conduct of the Office.
You spoke briefly in your written testimony about Tang v. U.S. Department of Veterans Affairs. Do you have actually documentary evidence that can back up the claim that there was a fraudulent postmarking?
Mr. TULLY. Absolutely. I would be more than happy to have my office send it to you this afternoon.
[Mr. Tully subsequently responded to Mr. Adler and VA General Counsel Gunn, in a letter dated July 7, 2010. The VA General Counsel, Mr. Gunn, responded to Chairman Mitchell in a letter, dated August 19, 2010. The letters are being retained in the Committee files due to the inclusion of sensitive personal information.]
Mr. ADLER. I think it would be really helpful, I think, because I really liked your balanced testimony where you were saying that most folks, most of the attorneys representing the Veterans Affairs Department were behaving ethically.
But if there are outliers, if there are folks who are not following that higher standard to which government attorneys have to adhere, we should catch them. And I think it is Congress’ job. If the Office of General Counsel cannot do that, we could help them do that.
So maybe if you could have your office send over to the Committee Chair and through the Chair to the rest of it, I think it would be very helpful to have us followup more directly with the VA, not naming names publicly if that is not necessary, but maybe helping the VA identify those folks who are not performing up to that ethical level that you correctly note the Berger standard requires.
So I wonder if you could do that for us.
Mr. TULLY. Too easy, sir.
Mr. ADLER. Thank you.
I have no further questions. Thank you.
Mr. MITCHELL. Thank you.
Again, we appreciate your service and what you are doing to help veterans. Thank you, Mr. Tully.
Mr. TULLY. Thank you.
Mr. MITCHELL. I would like to welcome panel two to the witness table. And for our second panel, we will hear from the Honorable Will Gunn, General Counsel for the U.S. Department of Veterans Affairs.
Mr. Gunn is accompanied by Phillipa Anderson, Assistant General Counsel, and Michael Hogan, Assistant General Counsel.
Mr. Gunn, you will have 5 minutes to make your presentation and your complete record will be made part of the record. Thank you.
STATEMENT OF HON. WILL A. GUNN, GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY PHILLIPA ANDERSON, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS; AND MICHAEL HOGAN, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. GUNN. Thank you, Mr. Chairman, Mr. Roe, other Members of the Subcommittee. I appreciate this opportunity to come before you today to testify in my position as General Counsel for the Department of Veterans Affairs.
First of all, Members, I just want to emphasize that I am a veteran. I am a 25-year Air Force retiree. I spent most of my time as a judge advocate. I have spent time both defending military members and prosecuting military members and a wide variety of other roles.
Immediately before coming into this position, I served as the sole practitioner in my own law firm where I defended veterans and represented military members. So the opportunity that I have in this role is one that I take very, very seriously and it is near and dear to my heart, to my passion.
First of all, I want to welcome with me Mr. Hogan, who essentially heads our management and operations group, and Ms. Phillipa Anderson, who heads our contract law and real property group.
Mr. Chairman, when I came into this office 13 months ago, I had talked to a variety of people about what was going on in the Office of General Counsel and I received advice from various individuals. Most of those people had a common theme and that was that the Office was one that was responsive and that provided good results.
After being in Washington for about a month, I went on the road, traveled around the country to our Regional Offices to test that initial hypothesis that this was a high-performing organization. And I am pleased to say that that initial hypothesis was validated.
Now that I have been here more than a year, I am still at that same position that this is a high-performing organization and it has been validated by evidence.
For instance, OGC, the Office of General Counsel, scores very high on our client satisfaction surveys. We have been sending out surveys since 2003. In 2010, our clients gave us an overall satisfaction score of 4.57 on a scale of 5.0.
The section led by Ms. Anderson received a recognition from our Major Construction and Real Property Programs Unit, received their Partner in Service Delivery Award. We also received recognition from the Department of Justice last year where we received their John Marshall Award for Outstanding Legal Achievement for Agency Cooperation in Support of Litigation. We are the only Federal agency to be recognized in this manner.
In addition, the Office of Government Ethics awarded us with outstanding achievement in managing an Agency Ethics Program and this past year, we received recognition from the Office of Government Ethics in terms of excellence in developing communications products that other Federal agencies have adopted.
I am also gratified that our employees within the Office of General Counsel also rate us extremely highly with respect to our internal employee scales, employee ratings.
Mr. Chairman, when I came aboard, I found a strategic planning process in place. And that strategic planning process identified a central goal for the organization. That was that the Office of General Counsel become a truly unified national law firm.
I embrace that theme because I believe that in order to meet the needs of the Department and in order to serve veterans, we are going to have to be more effective and we are going to have to be more unified.
As you mentioned in your earlier remarks, we have to focus on being more consistent and providing the very best service that we can.
With that in mind, I have established some strategic objectives and some strategic priorities. Those emphasize education and training for our staff, knowledge management so that we can retrieve information and share information across the country, and also cross-office and cross-regional collaboration. We are emphasizing these so that we can be even better and so that we can provide the very best service that we can.
I just want to close by stating this. I am committed to providing extraordinary customer service and I am also committed to providing service that is based in excellence and in integrity. That is my hallmark.
As an Air Force Officer, I lived by certain core values. Those core values were integrity first, service to others before self, and excellence in all that I do. I still live by those principles and I am committed to instilling those principles throughout the Office of General Counsel.
I stand ready to respond to your questions.
[The prepared statement of Mr. Gunn appears in the Appendix.]
Mr. MITCHELL. Thank you very much, Mr. Gunn. And all of us appreciate very much the service you have given to this country and we appreciate that very much.
You mentioned at the very beginning all the great satisfaction reports you have received from your clients.
Who are your clients? They are not veterans, are they?
Mr. GUNN. Sir, we do not directly serve veterans. You are correct.
Mr. MITCHELL. Who are your clients?
Mr. GUNN. Ultimately my client is the Secretary of Veterans Affairs. And so as the Department’s top lawyer, my job is to make sure that the Secretary is well-armed.
As I describe it and as we cascade down throughout the Department, we provide services to senior managers at local facilities and also within the Central Office of Veterans Affairs.
I look at it as we are providing legal guidance and support so that those that do provide direct services to veterans are able to do their jobs most effectively.
Mr. MITCHELL. There have been times in the past where the VA frequently declines to produce a witness requested to either testify at hearings or brief the Subcommittee. And the OGC’s guidance often gets cited as the reason for not producing witnesses at either hearings or briefings.
Two questions. What role does OGC play in the VA deciding who either testifies or briefs the Subcommittee and does the OGC provide an opinion when the VA refuses to produce certain information as requested by Congress or through the public?
Mr. GUNN. Sir, with respect to the first issue in terms of whether or not OGC plays a role in who will testify, I will say, no, we do not see ourselves as having a role with respect to that.
In terms of the second issue, we do play a role in terms of responding to requests for documents. And our advice is focused on two things, what can we provide, what is permissible, and, secondly, what are we required to provide?
As you yourself, I believe, mentioned in your opening statement, there is a tension that exists from time to time, particularly when we are talking about predecisional documents in terms of whether or not we can release a given document. We do our best to provide advice and counsel in those situations.
Mr. MITCHELL. You heard the first panel discuss the OGC’s lack of concern as being in contravention of the ethical duty required of Agency attorneys.
Can you speak more about the ethical duties required of attorneys in the VA and address allegations that the VA fails to meet the standard?
At the same time, there seems to be a difference in holding people to ethical standards in the private sector versus the OGC. There is a Bar Association, for example, that can hear complaints.
What is there on the part of the OGC to respond to unethical practices?
Mr. GUNN. Well, Mr. Chairman, first of all, I found out about the first panel less than an hour ago on my way over here and so that was the first, and when I got here, getting a chance to scan through his statement and also listening to him, and I did get an opportunity to speak to Mr. Tully briefly before this hearing began, and so I am very interested in his comments.
One of the things that we introduced is just a newsletter for the Office of General Counsel. We circulate it on a weekly basis. And in each one of these newsletters, I get an opportunity to prepare a column. I emphasize in those columns, I have taken most of the last 3 months to emphasize our values. Our values, at the top of those values are the value of integrity and the value of being ethical.
And so that is something that I take very, very seriously. I will say that before today, I had not heard comments along those lines. So I have invited Mr. Tully to followup with me and to provide me with specific examples because I do want to followup.
But I will also say, I just want to make sure that the Committee understands, that even though we are a Federal agency, all of our attorneys must be licensed by a State Bar Association. And they are subject to disciplinary action from those State Bars if they violate the Rules of Professional Responsibility for that given State.
So that is always an option that someone has if they are dissatisfied or if they believe that our attorney has acted in an unethical manner.
I have also instructed my team to develop an internal process for reviewing complaints of unprofessional conduct by our attorneys.
So that is something that I take very, very seriously and I look forward to finding out more information.
Mr. MITCHELL. Thank you.
I yield to Dr. Roe.
Mr. ROE. Thank you, Mr. Chairman.
Just to continue the Chairman’s line of questioning briefly, and you just mentioned that you are working on an internal process and, of course, the State Bar, but what will you do if you found out that a document had been deliberately altered to alter the outcome of an event? What would you do with that?
Mr. GUNN. Dr. Roe, I agree with what you said in responding to the first panelist and that is that that is egregious conduct. That is unacceptable. And while I only rate personally two individuals, I would strongly suspect that that would be basis for dismissal.
Mr. ROE. That is a good answer. I think I know what I would do.
And I guess when you have a situation where let us say there are obviously two issues, Mr. Tully is defending someone and you are on the other side, when you discover that maybe your position is wrong, what do you do in that situation?
And what he was saying was that in the private practice of law, whether you are guilty or innocent, you can be vigorously defended. He is saying that is not the case.
Do you agree with that, what he said?
Mr. GUNN. I do. You know, last week, I had an opportunity to spend some time with new attorneys in the Office of General Counsel. We had a new attorney orientation course here. And I spent time with them on the first day of the course and I spent time with them on the last day of the course.
Included in my comments was just an overall theme and that theme was that as attorneys, as Federal Government attorneys, particularly attorneys in the Department of Veterans Affairs, we need to be focused on one thing and that is doing the right thing.
And so that has to be at the forefront of what we do. As you probably know, let us say our counterparts in the Department of Justice, the Federal prosecutors, they have a responsibility of representing the taxpayers, the American public in criminal litigation. And so they are trying to win those cases.
But ultimately they have a higher calling and that calling is to do justice. So I absolutely agree that that is also our responsibility.
Mr. ROE. So at the end of the day, you would negotiate an end to this if you found out that your side was—you would not vigorously defend the wrong position if you evaluated it as that?
Mr. GUNN. Absolutely. One of the tools that we have at our disposal is the settlement tool. And when we find that we are going up the wrong road in litigation, we are in a position where we can do our best to settle the case.
Mr. ROE. I think meeting with Mr. Tully, I think he had a different opinion sometimes about how that was happening. And I would like to see that worked out.
One other quick question. And this is an interpretation basically on the HITECH Act (Health Information Technology for Economic and Clinical Health Act) where an interpretation was was that it had to be, when there is a breach, that there had to be 500 people in each State. And obviously a breach is embarrassing to VA and to the government. So you would like to not have breaches.
But in using that less than 500 interpretation, that means that you could have thousands of people whose data was breached, if you used the per State, instead of just saying that this is a 500 or 499, and you multiply that times 50, you get thousands of people. Now, that would be a hard, difficult scenario, I think.
But how did your office come, not necessarily you, but how did your office come to that conclusion?
Mr. GUNN. Dr. Roe, two points that I would like to make. Of course, I deal with situations when there has been an unauthorized disclosure of personal identifying information.
And with respect to that, first of all, in terms of our role of looking after the veteran, doing our best to take care of veterans, when we find that a veteran’s information has been disclosed, we do our utmost to notify the veterans. So regardless of the requirements of HITECH, we notify veterans. That is first and foremost.
In terms of the HITECH itself, I understand and I have had discussions with some of your staffers with respect to concerns about our interpretation of that, but our interpretation when it is necessary to make a media disclosure is based upon information that the U.S. Department of Health and Human Service (HHS) provided when they promulgated their interim regulations on this topic.
For instance, they specifically gave an example that if there was an unauthorized breach involving 600 individuals, 200 who lived in Virginia, 200 that lived in DC, and 200 in Maryland, then there would not be a breach that required notification of media under HITECH. So that was their interpretation.
So in providing advice to our clients, we went back and responded in that manner.
Mr. ROE. Okay. I think we have votes, Mr. Chairman. I yield back.
Mr. MITCHELL. We do have some votes.
Let me ask two quick questions. In my opening statement, I mentioned about the OGC repeatedly using time extensions in court in order to keep pace with their workload.
And I want to know, is the workload so great that it continues to be an ongoing issue?
And, secondly, we have often heard from various Department entities that the documents crucial to the Subcommittee’s work had been tied up in the General Counsel’s Office or restricted for release.
Now, one quick question with that. Are your attorneys overworked? How many hours a week do they work? Do they work 40 hours? Do they get overtime pay? How are they compensated compared to the private sector? What kind of incentives do they have to do work?
Mr. GUNN. Mr. Chairman, I believe first of all from an overall perspective we are blessed to have highly motivated employees. And the results from our employee surveys will bear that out. And we would be more than happy to share that information with the Committee so that you can see that.
[The VA subsequently provided VA Employee Survey Information for 2009 and 2010, which appears in the Appendix.]
But in addition to that, beyond that, you are right. In terms of our representation of the Department before the Court of Appeals of Veterans Claims, we have fallen into a position that we were requesting delays at a higher rate than were the appellants who were bringing, the veterans who were bringing their cases before that court.
But thanks to you, thanks to other Members of this Committee and the Congress, we have had budget increases that have allowed us to bring more resources to bear in our Group 7, which provides that representation. As a result of that, we are doing much better on that front.
We are also working hard to do two things. We want to make sure that we are able to provide effective representation in a timely manner and we also have to be sensitive to the fact that we do not want our attorneys overworked.
We found in that particular section that if an attorney has more than 50 cases at a time, that leads to more delays. That also leads to burnout. So we have been able to increase the number of attorneys that we have and as a result of that, we have been able to respond in a much more timely manner and request fewer delays.
Mr. MITCHELL. Thank you.
We are going to have to conclude this hearing. We have votes.
I just want you to know that, first of all, how much we appreciate what you are doing and your service to the taxpayers and also to this country.
But as we have requested with all of our hearings, we will followup and there are a number of questions we have to followup to make sure that we are doing our job because it does no good to have a hearing and just let it go.
Mr. GUNN. Yes, sir.
Mr. MITCHELL. So we will do that.
Did you want to say anything?
Okay. All right. Thank you very much. And this hearing is adjourned.
Mr. GUNN. Thank you, sir.
[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]
APPENDIX
Prepared Opening Statements:
Prepared statement of Hon. Harry E. Mitchell, Chairman, and a Representative in Congress from the State of Arizona
Prepared statement of Hon. David P. Roe, Ranking Republican Member, a Representative in Congress from the State of Tennessee
Prepared Witness Statements:
Prepared statement of Matthew B. Tully, Esq., Founding Partner, Tully Rinckey PLLC, Albany, NY
Prepared statement of Hon. Will A. Gunn, General Counsel, U.S. Department of Veterans Affairs
Material Submitted for the Record:
Post-Hearing Questions and Responses for the Record:
U.S. Department of Veterans Affairs 2009 and 2010 Employee Survey and Response Averages for the Office of General Counsel
Hon. Harry E. Mitchell, Chairman, Subcommittee on Oversight and Investigations, to Hon. Eric K. Shinseki, Secretary, U.S. Department of Veterans, letter dated July 30, 2010, and VA responses
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