Failures Implementing Aspects of the VA Accountability and Whistleblower Protection Act of 2017

Report Information

Issue Date
Report Number
18-04968-249
VA Office
Office of the Secretary (SVA)
General Counsel (OGC)
Report Author
Office of Special Reviews
Report Type
Review
Recommendations
22
Questioned Costs
$0
Better Use of Funds
$0
Congressionally Mandated
No

Summary

Summary
In response to congressional requests and allegations made to the OIG’s Hotline, the Office of Special Reviews examined whether VA was properly implementing aspects of the VA Accountability and Whistleblower Protection Act of 2017. This examination reviewed the operations of the Office of Accountability and Whistleblower Protection (OAWP) from June 2017 through December 2018. The OIG also reviewed operational changes implemented by new OAWP leadership as of August 2019. Specifically, the review focused on determining whether the OAWP exercised its legal authority appropriately; conducted adequate, thorough, and procedurally fair investigations; and protected whistleblowers from retaliation. The OIG examined whether VA employees were held accountable using the Act’s authorities and whether VA complied with other Act requirements, including timely and accurate reporting to Congress. The OIG identified significant deficiencies within each area of inquiry, including OAWP misinterpreting its statutory mandate. The OIG determined OAWP referred out matters it should have investigated to VA entities (without appropriately protecting whistleblowers’ identities). OAWP also investigated matters outside its authority. Former OAWP leaders made avoidable mistakes that distracted from the OAWP’s core mission and undermined the confidence of some whistleblowers, chilling reporting. A lack of clear written guidance for OAWP personnel contributed to the inaccuracy, perceived bias, and lack of thoroughness in investigations—causing some disciplinary officials to reduce proposed disciplinary sanctions. Insufficient safeguards put whistleblowers at risk of becoming the subject of retaliatory investigations, and in one troubling instance OAWP initiated an investigation that could itself be considered retaliatory. Other failures related to whistleblower protection training, congressional reporting, and disclosing routine uses of information. The OAWP’s current Assistant Secretary started implementing changes after taking office in January 2019. Given the magnitude of the challenges, significant enhancements are needed to fulfill the Act’s requirements and the office’s mission. VA concurred with the OIG’s 22 recommendations.

Open Recommendation Image, SquareOpenClosed and Implemented Recommendation Image, CheckmarkClosed-ImplementedNot Implemented Recommendation Image, X character'Closed-Not Implemented
No. 1
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection directs a review of the Office of Accountability and Whistleblower Protection’s compliance with the VA Accountability and Whistleblower Protection Act of 2017 requirements in order to ensure proper implementation and eliminate any activities not within its authorized scope.
No. 2
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The VA Secretary rescinds the February 2018 Delegation of Authority and consults with the Assistant Secretary for Accountability and Whistleblower Protection, the VA Office of General Counsel, and other appropriate parties to determine whether a revised delegation is necessary, and if so, ensures compliance with statutory requirements.
No. 3
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection, in consultation with the Office of General Counsel, Office of Inspector General, Office of the Medical Inspector, and the Office of Resolution Management establishes comprehensive processes for evaluating and documenting whether allegations, in whole or in part, should be handled within the Office of Accountability and Whistleblower Protection or referred to other VA entities for potential action or referred to independent offices such as the Office of Inspector General.
No. 4
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection makes certain that policies and processes are developed, in consultation with the VA Office of General Counsel and Office of Resolution Management, to consistently and promptly advise complainants of their right to bring allegations of discrimination through the Equal Employment Opportunity process.
No. 5
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection ensures that the divisions of the Office of Accountability and Whistleblower Protection adopt standard operating procedures and related detailed guidance to make certain they are fair, unbiased, thorough, and objective in their work.
No. 6
Closed and Implemented Recommendation Image, Checkmark
to General Counsel (OGC)
The VA General Counsel updates VA Directive 0700 and VA Handbook 0700 with revisions clarifying the extent to which VA Directive 0700 and VA Handbook 0700 apply to the Office of Accountability and Whistleblower Protection, if at all.
No. 7
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection assigns a quality assurance function to an entity positioned to review Office of Accountability and Whistleblower Protection divisions’ work for accuracy, thoroughness, timeliness, fairness, and other improvement metrics.
No. 8
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection directs the establishment of a training program for all relevant personnel on appropriate investigative techniques, case management, and disciplinary actions.
No. 9
Closed and Implemented Recommendation Image, Checkmark
to Human Resources and Administration/Operations, Security, and Preparedness (HRA/OSP)
The VA Secretary, in consultation with the VA Office of General Counsel, provides comprehensive guidance and training reasonably designed to instill consistency in penalties for actions taken pursuant to 38 U.S.C. §§ 713 and 714.
No. 10
Closed and Implemented Recommendation Image, Checkmark
to Human Resources and Administration/Operations, Security, and Preparedness (HRA/OSP)
The VA Secretary ensures the provision of comprehensive guidance and training to relevant disciplinary officials to maintain compliance with the mandatory adverse action criteria outlined in 38 U.S.C. § 731.
No. 11
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection makes certain that in any disciplinary action recommended by the Office of Accountability and Whistleblower Protection, all relevant evidence is provided to the VA Secretary (or the disciplinary officials designated to act on the Secretary’s behalf).
No. 12
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection implements safeguards consistent with statutory mandates to maintain the confidentiality of employees that make submissions, including guidelines for communications with other VA components.
No. 13
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection leverages available resources, such as VA’s National Center for Organizational Development and the Office of Resolution Management, to conduct an organizational assessment of Office of Accountability and Whistleblower Protection employee concerns and develop an appropriate action plan to strengthen Office of Accountability and Whistleblower Protection workforce engagement and satisfaction.
No. 14
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection develops a process and training for the Triage Division staff to identify and address potential retaliatory investigations.
No. 15
Closed and Implemented Recommendation Image, Checkmark
to Human Resources and Administration/Operations, Security, and Preparedness (HRA/OSP)
The Assistant Secretary for Accountability and Whistleblower Protection collaborates with the Assistant Secretary for Human Resources and Administration, and the VA Secretary to develop performance plan requirements as required by 38 U.S.C. § 732.
No. 16
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection ensures the implementation of whistleblower disclosure training to all VA employees as required under 38 U.S.C. § 733.
No. 17
Closed and Implemented Recommendation Image, Checkmark
to Human Resources and Administration/Operations, Security, and Preparedness (HRA/OSP)
The VA Secretary makes certain supervisors’ training is implemented as required under § 209 of the VA Accountability and Whistleblower Protection Act of 2017.
No. 18
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection confers with the VA Office of General Counsel to develop processes for collecting and tracking justification information related to proposed disciplinary action modifications consistent with 38 U.S.C. § 323(f)(2).
No. 19
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The VA Secretary in consultation with the Office of General Counsel and the Assistant Secretary for Accountability and Whistleblower Protection ensures compliance with the 60-day reporting requirement in 38 U.S.C. § 323(f)(2) consistent with congressional intent.
No. 20
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection develops or enhances database systems to provide the capability to track all data required by the VA Accountability and Whistleblower Protection Act of 2017.
No. 21
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
In consultation with the VA Office of General Counsel, the Assistant Secretary for Accountability and Whistleblower Protection completes the publication of Systems of Records Notices for all systems of records maintained by the Office of Accountability and Whistleblower Protection, and adopts procedures reasonably designed to ensure that the Office of Accountability and Whistleblower Protection does not create additional systems of records without complying with the requirements of the Privacy Act of 1974.
No. 22
Closed and Implemented Recommendation Image, Checkmark
to Accountability and Whistleblower Protection (OAWP)
The Assistant Secretary for Accountability and Whistleblower Protection consults with the VA Chief Freedom of Information Act Officer to ensure adequate training and staffing of the Office of Accountability and Whistleblower Protection’s Freedom of Information Act Office, and establishes procedures to comply with FOIA requirements including timeliness.