It’s difficult, but not impossible, to legislate the toxic VA culture

If something seems too good to be true, then it probably is. This is especially true when it comes to the federal government, an institution that seemingly has an often times well-deserved reputation for overpromising and under-delivering.

That’s why, when the president initially created the VA Office of Accountability and Whistleblower Protection via Executive Order in April 2017, many whistleblowers within the agency were skeptical that the newly created office would truly bring about change and accountability in the government’s “most repressive agency.”

{mosads}Because issues pertaining to VA accountability have been a long-time headache for members of Congress, they too wanted to believe that the OAWP could fix VA’s toxic culture of retaliation against anyone who dared to question the agency’s leadership. Accordingly, Congress granted the OAWP additional authority pursuant to the VA Accountability and Whistleblower Protection Act, which was signed into law in June 2017.

Although the OAWP has only been in existence for a little over one year, it is a failed experiment in government accountability and transparency. It is time for Congress to pull the plug.

First, VA has a cultural problem, not a legislative one.

As I have previously argued, many of VA’s accountability problems are due to a high tolerance for corrupt practices — a concept that was highlighted by investigative journalist Mike Volpe at this past week’s Whistleblower Summit on Capitol Hill —  as well as a perception by agency leaders that it is above the law and any outside oversight.  

Indeed, just recently, Acting VA Secretary Peter O’Rourke tried “to control, if not intimidate” the Inspector General over the sharing of whistleblower information from the OAWP that O’Rourke — notably the prior director of the OAWP — refused to provide.  

Despite Congress’ best attempts, it is difficult, if not impossible, to legislate culture. VA needs to change its internal habits far more than it needs Congress to change the law.  

To this end, the VA Accountability and Whistleblower Protection Act has thus far been the equivalent of a car without gas; yes, it is a vehicle to assist you in getting to where you’re going, but without more, it is basically useless.

Second, there are the numbers. Although VA employees only account for 18 percent of the federal workforce, they accounted for 31 percent of whistleblower complaints submitted to the Office of Special Counsel.

There are also the OAWP’s budget numbers. According to a report prepared by VA on the Activities of the OAWP and submitted to the House and Senate Veterans’ Affairs Committees, the OAWP has an annual budget of $17.3 million dollars to maintain 73 full time employees (while requesting 102) and handling 182 cases.  

By contrast, during the same time period, the Office of Special Counsel’s budget was only modestly greater, at $26.5 million dollars, despite the fact that OSC maintains a staff of only 144 full-time employees to oversee whistleblowers for the entire federal government, which included 18,058 complaints. 

That’s quite a difference in how federal dollars are spent and accounted for, but this comes as no surprise to those who are familiar with VA’s budget.

As noted by the bipartisan duo of retired legislators Bill Frist (R-Tenn.) and Jim Marshall (D-Ga.) shortly after the emergence of the 2014 patient wait time scandal, “[i]f endless funding, more personnel or piecemeal reforms were the answer, the VHA wouldn’t be failing.”

As conceded by OSC, VA does produce a higher volume of whistleblower complaints than other agencies; nonetheless, duplicating efforts at a time when additional federal dollars are hard to come by seems like a questionable decision.

Finally, and perhaps most importantly, are the facts. In a July 2018 report, the GAO found that the VA OAWP lacked standardized practices and procedures, making it nearly impossible to verify its actions. More importantly, however, the GAO also found that whistleblowers at VA were ten-times more likely to be disciplined than their peers and that managers were often tasked with investigating themselves, a blatant conflict of interest.  

If accountability and whistleblower protection are the goals, as the name of the office would indicate, this is a failed mission.

So, rather than throwing more money and personnel at yet another failing VA business line, what should Congress and the VA do?  There are several steps that can help to improve accountability and whistleblower protection that do not involve further investment in the OAWP.

First, the VA has the benefit of a new secretary as of earlier this week, Robert Wilkie. Wilkie can begin by sending a strong message to those within the VA that past retaliatory practices will not be tolerated.  He can send that message by immediately terminating those who’ve participated in the retaliation, rather than making the fatal mistake of his predecessors — trying too hard to be liked by everyone. With a workforce of 360,000 employees, no one is going to be universally liked, no matter how good they are at their job. Wilkie needs to accept this and do what’s best for the agency.

Second, Congress can alter the Whistleblower Protection Act by providing those who claim its protections with the same rights as those who file claims pursuant to the Civil Rights Act or the Rehabilitation Act — that, if the MSPB cannot hear their claim within 180 days, they may file suit in the District Court where they reside. Providing an avenue toward independent resolution of issues outside of another bureaucracy — the MSPB — will help resolve disputes more efficiently while ensuring independent review.

Finally, if VA is set on having an internal review office for whistleblower claims, they should remove the OAWP or any equivalent to the purview of the OIG. Since many whistleblower complaints are simultaneously filed with the OIG anyway, this would provide streamlined processes and also preserve the independent nature of a fair investigation.

Overpromising and under-delivering are easy, which is why solutions to problems such as the internal OAWP are often too good to be true. Working hard to find practical solutions is difficult, but improving morale, decreasing government spending, and saving lives make the exertion worthwhile.

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.