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STATEMENT OF

March 11, 1999

I want to thank Chairman Everett and the members of this Subcommittee for the opportunity to testify on the policies and protections of the Office of Inspector General (OIG), Department of Veterans Affairs (VA) for employees who engage in whistleblowing activities as well as for other employees who may be subject to retaliation for filing various types of claims or complaints against VA.

Each year the OIG receives thousands of complaints from VA employees who allege wrongdoing in VA programs and operations. Some of these complaints involve allegations of retaliation for whistleblowing. For example, since October 1, 1996, the OIG Hotline opened a total of 32 reprisal cases. Heavy workload required us to refer 12 of the cases to VA program offices for action. Of the 20 cases performed by the OIG, 4 remain under review, 3 were substantiated, 6 were unfounded, and 7 were closed during review because 1 sought remedy through the Federal Courts, 1 settled with VA management, and 5 went to the Office of Special Counsel (OSC).

Due to resource constraints, the OIG generally has had to limit its investigations to employees who believe they have been retaliated against because they filed a complaint with or provided information to the OIG, or to those cases involving senior VA managers. Whether we accept a case for investigation or not, it is OIG policy to advise all employees of their right to file a complaint with other administrative entities such as OSC, the VA Office of Resolution Management, or the Merit Systems Protection Board (MSPB).

Several statutes provide protection against retaliation to employees who make protected disclosures or engage in other protected activities. OSC has authority to investigate and take action on cases involving allegations of prohibited personnel practices as defined in Section 2302 of Title 5, United States Code. This includes personnel actions that are taken against employees and others who meet the definition of a whistleblower under the Whistleblower Protection Act (Public Law 101-12). OSC's authority also includes actions taken against employees who engage in other protected activities such as filing a grievance; testifying on behalf of another employee who has filed a grievance or an appeal with the MSPB; or providing information to, or cooperating with, the OIG or other similar investigative entity.

Section 7 of the Inspector General Act of 1978 prohibits retaliation against employees who file a complaint or disclose information to the Inspector General (IG) concerning a violation of law, rule or regulation; mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety. Other protected activities include exercising an appeal, complaint, or grievance right granted by any law, rule or regulation, or testifying for or lawfully assisting an individual who has exercised an appeal, complaint or grievance right.

Similarly, it is unlawful to retaliate against employees who have filed an Equal Employment Opportunity (EEO) discrimination complaint or have provided testimony on behalf of an employee who has filed an EEO complaint. Title VII of the Equal Employment Opportunity Act provides that employees who believe they were retaliated against have the right to file a claim through the EEO process. In VA, the Office of Resolution Management has the authority to receive and investigate these claims.

If the Office of Resolution Management determines that the employee was retaliated against for rightfully engaging in protected EEO activities, the Office of Resolution Management is required to report its findings to the Secretary of Veterans Affairs, who is required by statute to take disciplinary action against the supervisor or manager responsible for the personnel action.

Complaints to the Office of Resolution Management or MSPB have strict time limitations for filing that are not extended because the OIG is investigating the employee’s retaliation complaint. I do not want any employee to be denied his or her right to due process under any of these systems because he or she failed to file a timely complaint or appeal. As such, it is OIG practice to inform all employees, who contact the OIG with complaints of retaliation, of their rights under the law.

At times OSC or the Office of Resolution Management contact us regarding their investigations of complaints of retaliation filed by VA employees who either filed a complaint or provided information to the IG during an investigation. My staff cooperates fully on these cases by providing records and other information in a timely manner.

The enforcement authority for each of these administrative bodies is broader than the authority of the IG. For example, if OSC finds that the agency has taken a personnel action because an employee engaged in a protected activity, such as whistleblowing,

it has the authority to request the Secretary to take appropriate corrective action. If the agency declines to take what OSC believes is appropriate corrective action, OSC has statutory authority to file a complaint, on behalf of the employee, with MSPB.

In any case in which MSPB concludes that the agency retaliated against an employee for engaging in protected activities, it has the authority to order the agency to take specific corrective action. This includes not only awards of back pay and benefits to which the employee may be entitled, but also ordering specific disciplinary action against the retaliating official(s). MSPB decisions may be appealed in Federal Court.

In cases where our investigation substantiates allegations of retaliation for whistleblowing, we recommend that management take appropriate disciplinary action against the wrongdoer and corrective action to make the employee whole. With our recommendations, we provide VA management with the basis, including testimony or affidavits provided by other employees, that supports our findings. The agency needs this evidence to make a determination whether disciplinary action should be imposed and, if so, what type of action is appropriate under the circumstances. In addition, in most cases, the agency is required to prepare an evidence file supporting the charges, which is given to the employee when the action is proposed.

In those cases where VA management takes administrative and/or disciplinary action based on an OIG recommendation, the OIG considers the case closed. This is in accordance with standard practice in the Inspector General community. The decision whether to take administrative action, and the specific action that is appropriate, is vested in the management officials who supervise the employee in question. Because Offices of Inspector General are independent of management, they do not recommend specific penalties or disciplinary actions. The OIG's function of objective oversight makes it especially important that the line between management responsibility and IG oversight responsibility be respected and maintained.

In those cases where the VA program office does not agree with OIG findings and recommendations, and after every attempt is made to resolve such disagreements at the program office level, the OIG would use, and has used, the formal resolution process within VA, where the Deputy Secretary is the deciding official. When the OIG investigation concludes that the agency did not retaliate against the employee, we advise the employee of the results of our investigation and remind them of their right to file a complaint with OSC.

We are aware that some VA employees are reluctant to raise allegations of wrongdoing or cooperate with the OIG because they fear reprisal. Fear of reprisal is a natural reaction and will always exist to some degree. However, in my view, fear of retaliation which has the potential to deter complainants from coming forward with allegations of wrongdoing is an issue that needs to be continually addressed within VA through timely and credible reviews by the OIG followed by appropriate administrative actions by the Department's managers. Continuing education, such as including discussions on whistleblower protection in annual training sessions for senior managers, can also play an important role in increasing awareness.

In the past few years, we have been involved in several investigations in which facility managers have made statements to employees that have been perceived as threats against employees who go to the IG with a complaint or provide information to the IG or other outside persons or entities. Notwithstanding whether management intended to or not, such statements intimidate employees and discourage them from being forthcoming and cooperative in our oversight efforts. These statements range from memorandums or policies requiring employees to contact management before and after the IG interviews them, to statements indicating that the IG will not always be around to protect them after the investigation is concluded.

When statements of this nature come to our attention, we take action to have them rescinded and to have VA officials take appropriate action against the managers who may be impeding an IG investigation through intimidation. We insist that any retraction emphasize that any VA employee is free to contact the IG at any time with complaints of fraud, waste, abuse, and mismanagement, and is legally protected from reprisal for doing so.

To encourage employees to come forward with complaints of fraud, waste, abuse, etc., Section 7 of the IG Act requires the IG to maintain the confidentiality of employees who file a complaint or otherwise provide information to the IG. This section provides that the identity of the employee cannot be released except if the IG deems it absolutely necessary to conduct the investigation.

It is OIG policy to consider all VA employees who contact us with a complaint as a confidential source, unless the employee advises us that he or she does not expect or want to remain confidential. However, there are occasions where employees would like to remain confidential but the very nature of the complaint makes it impossible to conduct an investigation without explicitly or implicitly identifying the complainant.

For example, an employee may file a complaint containing allegations of mismanagement that the employee previously brought to the attention of VA management. The mere fact that we are investigating the same allegation could lead management to suspect that employee. Another example involves allegations of retaliation, which by their very nature cannot be investigated without revealing the name of the employee. In situations such as these, it is OIG policy and practice to advise the employee that we cannot guarantee confidentiality if we conduct an investigation and we then allow the employee to decide whether he or she wants us to conduct an investigation or close the case.

The issue of whether VA disciplinary action for senior managers was addressed at an appropriate level has been the subject of congressional hearings in recent years. For example, in early 1997, hearings were held to discuss VA's policies and practices regarding sexual harassment in the workplace. In response to concerns expressed about the appropriateness of the disciplinary actions taken against senior managers, VA announced that the Secretary established a new approach for dealing with recommendations for disciplinary action involving senior VA executives. The approach, established in March 1997, requires the Office of the Secretary to be informed of any proposed actions related to conduct or performance problems, involving positions centralized to the Secretary, before the proposal is implemented.

This approach was developed to help ensure an appropriate level of punishment, and to overcome the perception that past disciplinary actions against some senior managers fell short considering the seriousness of the infractions.

Making the punishment fit the crime, as it were, serves not only as a deterrent to further wrongdoing by all levels of VA employees, but particularly by senior officials who have the greatest capability to harm VA because of their high level positions and corresponding influence on the organization. Secondly, it sends a message to all employees that they can make a difference in disclosing wrongdoing, and any official retaliating against them will face appropriate consequences.

In closing, I want to thank the committee for its support, particularly in the FY 1999 budget. The additional resources you provided will be extremely helpful in improving our ability to issue timely and thorough reports. If these actions are combined with a commitment by the Department to have prompt, appropriate administrative action, we can improve the quality of the workplace for all VA employees, and as a result, improve the quality of service to our veterans.

That concludes my statement. I would be happy to respond to any questions you have at this time. Thank you.

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Whistleblowing and Retaliation at the Department of Veterans Affairs