VA Whistleblower Protection Act Amendments.

AMENDMENTS TO S.1094 – DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION ACT OF 2017, AND THE WHISTLEBLOWER PROTECTION ACTION OF 1989.

February 11, 2019  Bill Authors:  Jay Denofrio, Dr. Alice Buckley, Sean Higgins, and Greg Penglis.

Introduction:

This series of amendments is based on information given by VA and related whistleblowers for the purpose of correcting problems with the Act which still allow for the persecution and victimization of whistleblowers within the VA. Rather than fix the problems, which would be far simpler, an attitude still exists that anyone who tries to fix the system is in some way betraying the Administration, and deserves to be punished, rather than listened to. And the mechanism that allows such victimization, is in the very Accountability Act designed to take it out. These amendments will make the changes in law necessary for a VA that can be reformed from within, rather than have the original reforms reversed. As always, enforcement will be critical. But hopefully when this becomes law, it will be in a condition where the intent to protect the whistleblowers will be paramount, and their research, information, discoveries, recommendations, and documentation, will serve the cause of reforms, and not used as evidence against them.

Amendments to the Whistleblower Protection Act of 1989:

We formally request changes to 

5 U.S.C. 2302(b)(8)-(9), Public Law 101-12, the Whistleblower Protection Act of 1989 and Public Law No: 112-199, The Whistleblower Protection Enhancement Act of 2012 

to give whistleblowers a direct avenue to the Federal District Courts. Federal whistleblowers expose matters of highest public interest and are often the eyes and ears on the ground for the United States Congress. However, unlike federal Equal Employment Opportunity (EEO) laws, there is absolutely no avenue under current federal law for whistleblower to go to the Federal District Courts to be heard despite whistleblowers being a legally protected class of employees. Additionally, the Merit System Protection Board has been without a quorum form more than two years and currently has a 2,000 case backlog completely stopping any legal due process for federal whistleblowers. This makes whistleblowers an easy target of retaliation, restricts transparency and oversight of federal agencies, and allows wrongdoing and corruption to flourish.

We request that the aforementioned whistleblower laws be amended so that all whistleblowers must go through their current administrative complaint process before they can file a lawsuit. However, the federal whistleblower laws will be amended to allow several different points during the process where a whistleblower will have the opportunity to quit the MSPB process and file a lawsuit in court: First, after 180 days have passed from the day the whistleblower filed an individual right of action complaint with the MSPB, if the MSPB has not issued a decision. Second, within 90 days from the day you receive the Office of Special Counsel’s decision on the whistleblower complaint and notice of individual right of action, so long as no appeal has been filed with the MSPB.  

Amendments to S.1094 – Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017:

1. Reallign VA OAWP  (Veterans Affairs Office of Accountability and Whistleblower Protection)  from under the VA Secretary to under the VA OIG  (Office of Inspector General).

This is because there is no oversight from the OAWP, because there are reports of whistleblower disclosure (report of a whistleblower) being given to supervisors and VA leadership to retaliate against the whistleblower, to cover up the disclosure, and placing the whistleblowers themselves under investigation.

2. Requirements for mandatory reporting of Whistleblower disclosures to OSC (the Office of Special Counsel), the VA Office of Inspector General, and to Congress.

The VA is getting “disclosures” (reports of problems, abuse, and wrongdoing) from the whistleblowers, and right now the VA can just sit on those reports for as long as they want, or do nothing, or throw out the report, and then still fire the whistleblower. There is no legal requirement under the VA Accountability Act — to ACT.  

3. Move FOIA (Freedom of Information Act) responsibilities from the OAWP to OIG.

This is because no one is getting any Freedom of Information responsive records from requests made to the OAWP. They are not processing any FOIA requests.

4. Use the whistleblower definitions established in the Whistleblower Protection Act.

The VA Accountability Law uses a different definition of “whistleblower.” This is so that the VA can deny whistleblower status because of the different definitions, and it gives the VA the power themselves to determine within the VA who is and is not a whistleblower. Therefore, the definition of whistleblower in the VA Accountability Act must be exactly the same as the definition in the Whistleblower Protection Act.

The VA definition of whistleblower:  

(2) The term `whistleblower’ means one who makes a whistleblower disclosure as defined in 5 U.S.C.

2302(b)(8)-(9), Pub.L. 101-12 as amended.

(3) The term `whistleblower disclosure’ means any disclosure of information by an employee of the Department or individual applying to become an employee of the Department which the employee or individual reasonably believes evidences–

(A) a violation of a law,rule, or regulation; or

(B) gross mismanagement,a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”.

Amendments to the Whistleblower Protection Act of 1989 definition of “whistleblower:”  

' (1) any disclosure of information by an employee, former employee, or

applicant for employment which the employee, former employee, or applicant reasonably believes evidences–

`  (A) a violation of any law, rule, or regulation; or

`  (B) gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety;

if such disclosure is not specifically prohibited by law and if such

information is not specifically required by Executive order to be kept secret

in the interest of national defense or the conduct of foreign affairs; and

` (2) any disclosure by an employee, former employee, or applicant for

employment to the Special Counsel or to the Inspector General of an agency

or another employee designated by the head of the agency to receive such

disclosures of information which the employee, former employee, or applicant reasonably believes evidences–

`  (A) a violation of any law, rule, or regulation; or

`  (B) gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety.

`   (b) Whenever the Special Counsel receives information of a type described in subsection (a) of this section, the Special Counsel shall review such information and, within 15 days after receiving the information, determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.

5.  Restrict the VA from firing whistleblowers until the OSC (Office of Special Counsel) completes a complete review.

The review process from the OSC can take months. In the meantime the whistleblower is subject to termination by the VA, because the VA uses their own definition of what a whistleblower is, so that they can terminate, harass, discipline, and they can arbitrarily define co-workers as whistleblowers instead, and give them protection for anything they do to the real whistleblower.

6.  Require annual reports to Congress of their referrals to OSC, OIG, and DOJ, whistleblower and accountability activities, and budget oversight. Right now there is no reporting requirement of any referrals of whistleblower disclosures to the House and Senate VA committees, beyond the initial report in 2017. Here are the reports we are requesting:

By December 31 of every following year the Secretary shall submit a to the House and Senate Committee on Veterans Affairs a report that includes:

 (A) The number of whistleblower disclosure referred to the Office of Special Counsel and a summary of any case referred to the Office of Inspector General and / or the Department of Justice for criminal review.

 (B) The number of personal actions by the Secretary in accordance with this is Act and a summary of each personal action.

 (C) The number of whistleblowers referred to the Assistant Secretary and a summary of each whistleblower disclosure under this Act.

 (D) A detailed list of every formal complaint filed against the Department of Veterans Affairs Office of Accountability and Whistleblower Protection.

 (E) A list of all received and completed FOIA requests received under this Act.

 (F) A detailed budget report for the Department of Veterans Affairs Office of Accountability and Whistleblower Protection. 

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