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Government Accountability Office Report on Retaliation Toward VA Whistleblowers

In a report published on July 19, 2018, the U.S. Government Accountability Office (GAO) found in 2016, that whistleblowing employees in the Department of Veterans Affairs (VA) are ten times more likely to be retaliated against for their disclosures than their VA peers. The study also states that, in the same year, VA employees “accounted for about 31 percent of cases submitted from across the federal government to the Office of Special Counsel (OSC).”

GAO cited the importance of the work conducted by the VA as their reason for creating their report. They describe that “misconduct by VA employees can have serious consequences for some veterans, including poor quality of care.” In examining the Agency’s response to reports of wrongdoing, GAO hopes to improve both daily VA operations as well as accountability.

Within their report, GAO documents that of 129 non-anonymous whistleblowers, 10% of them received an adverse action during the year of their disclosure and 8% of them received an adverse action during the year after their disclosure. On average, approximately “1 percent of all employees in the VA roster received an adverse action in any given fiscal year.”

GAO is quick to admit that, while this is “consistent with a pattern of retaliation for non-anonymous whistleblowers, it is only an indication that retaliation could be occurring.”

Additionally, in collecting data from five VA data files, GAO found that 97% of records pertaining to proposed actions and 96% of records pertaining to disciplinary actions were missing data. The report goes on to state, “GAO estimated that approximately 3,600 of the files did not contain required documentation that employees were adequately informed of their rights… such as their entitlement to be represented by an attorney.”

An additional finding presented in the report is that, in a sampling of 17 senior officials with proposed disciplinary action, 7 of those officials received less severe actions and an additional 5 of those officials received no disciplinary action at all. For the officials who received less severe actions, among some of this decreased discipline was notices of proposed removal that ultimately became admonishments. One possible reason for the decreases GAO identified is that, “according to the OIG, [the VA] has the option of… exercising a ‘right of first refusal,’ whereby it refers allegations of misconduct to the VA facility or program office where the allegation originated.” In such instances, GAO reports, some managers may be able to preside over their own investigations.

Of GAO’s 15 recommendations for improvement in accountability and the handling of disclosures, the VA mostly agreed with a majority of them: per GAO’s report, the VA “concurred with nine of [GAO’s] recommendations and partially concurred with five.” Regarding the VA Office of Inspector General recommendations, “the OIG concurred with one recommendation and partially concurred with the other.”

The recommendations include policy revisions to “require verification of evidence produced in senior-official case referrals,” as well as other recommendations, including making sure the VA’s own policies are adhered to, as well as directives from the Secretary of the VA ensuring the protection of whistleblowers. GAO’s website will track which actions the VA chooses to take in response to its recommendations.

If you are an employee of the Department of Veterans Affairs who has reported misconduct, is considering reporting misconduct, or who has been retaliated against, do not hesitate to contact a federal employment attorney in order to discuss your rights moving forward.