Following is an excerpt from recent congressional testimony by VA secretary Dr. David Shulkin regarding how the department is carrying out changes in employee appeal rights, changes that are commonly seen as precedent for applying to other agencies.
The Department of Veterans Affairs took expedient action to implement the Secretary’s new authority to hold employees accountable provided for in the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. Within weeks of the enactment of the law, the Secretary developed and effected guidance to ensure both VA managers and employees are held to the highest standards of performance, integrity, and conduct.
The Department developed four Human Resources Management Letters as guidance to managers and Human Resources personnel on how to implement several of the disciplinary provisions. Training was provided to managers, HR personnel, and the Office of General Counsel on the provisions of the Act, and how it would be implemented.
Additionally, the Department developed several resources to assist HR personnel in understanding and applying disciplinary provisions of the Act, such as flow charts outlining the requirements of the accountability authorities available to the Department, comparison guides between requirements under the Act and VA bargaining unit obligations, and frequently asked question guides. The Department continues to modify guidance and update Human Resources Letters as needed and as adverse action cases are heard before the Merit Systems Protection Board.
The VA’s Office of Accountability and Whistleblower Protection (OAWP) was established and the head of the OAWP was appointed on May 12, 2017 under the authority of the President’s Executive Order. OAWP is currently being led by an SES executive director who reports to the Secretary.
The executive director provides clarification and advice related to accountability, whistleblower disclosures and retaliation issues to the Secretary and other leadership throughout VA. OAWP sends a senior team to raise awareness of accountability and whistleblower issues to executive leadership councils and other leadership meetings at VA facilities across the country.
On June 12, 2017, OAWP began receiving whistleblower disclosures from employees into the Central Whistleblower Office authorized under The Patient Protection Act of 2016 (PL 114-223). After enactment of the Department of Veteran Affairs Accountability and Whistleblower Protection Act of 2017 (PL 115-41), the OAWP enhanced its whistleblower capabilities, developing a new Whistleblower Disclosure Form (VA Form 10177) to streamline the process and integrate disclosure intake into the Office’s new Triage Division. OAWP developed a triage, tracking, and referral process to ensure all disclosures are managed and resolved centrally. When appropriate, OAWP engages with the Office of Special Counsel (OSC) and the Office of Inspector General to refer disclosures and accept referrals for action. As of January 8, 2018 OAWP has received and validated 1,029 disclosures since June 2017.
OAWP is protecting whistleblowers by utilizing its authority to place a temporary hold on personnel actions in cases where whistleblower retaliation is alleged or a disclosure is unresolved. Working with the OSC, OAWP ensures that the ability to seek corrective action is preserved. As of January 8, 2018 OAWP has held 72 actions.
On December 14, 2017, OAWP began discussions with the Department’s Executive Secretary to begin providing oversight of OSC’s referred disclosures. OAWP is working on value-added processes and procedures to ensure all OSC disclosures are investigated and resolved appropriately. OAWP is also working closely with OSC to ensure whistleblower retaliation cases are investigated and employees are protected.
OAWP is evaluating methods, procedures, and information technology solutions for the systematic recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by the Office of Inspector General, Medical Inspector, Special Counsel, and the Comptroller General of the United States. Also being evaluated are the technological requirements for analyzing data produced by OAWP and the Office of Inspector General’s telephone hotlines and whistleblower disclosures in order to identify trends and reports to the Secretary.
Since establishment, OAWP has been receiving, reviewing, and investigating allegations of misconduct brought against senior executives; employees in a confidential, policy-determining or policy-advocating position; and supervisors; when the allegation involves whistleblower retaliation. As of January 8, 2018 OAWP has completed 77 investigations involving 149 persons of interest. OAWP’s current inventory is 139 investigations involving 228 persons of interest.