Transcripts For CSPAN3 PART 20240705

Whistleblowers are an indispensable resource for state entities like the v. A. s office of accountability and whistleblower protection and other organizations seeking to promote Good Government and accountability. The statutes governing the work allow us to support whistleblowers in three ways. First, providing a safe channel to make it difficult for wrongdoing. Second, protect from retaliation against whistleblowing. Third, we stand as a partner with other federal agencies in congress in upholding the merit system. One noteworthy aspect of our role is the high degree of whistleblower involvement in our process. We rely on information given by the whistleblower to determine which agency should engage. We make every effort to respond quickly to those concerns. Oscs Disclosure Unit decides whether an investigation is required within 45 days in virtually every case. If the allegations were not further inquiry at the special counsel will refer the case to the agency who must investigate and provide a report to our office. Osc then gives the whistleblower an opportunity to provide comments on the reports. After taking the whistleblowers input into account, the special counsel determines if the results are reasonable. Osc decides that determination if the report itself and the whistleblower comments are applicable to the president and congress. They can also file a complaint if they believe they have been subject to was a blower retaliation. Oscs handling in these cases differs from our disclosure work in that the prohibited side, the staff conduct investigations themselves. Osc has the authority to pursue correctional and disciplinary action in these situations when appropriate and we have a dispute Resolution Program which also facilitates meaningful relief for employees who file with us. As the chief of oscs investigation and prosecution division, in each of the two fiscal years now working on for habited personnel practice matters received a number of actions including disciplinary action. This combination of successful resolution sends a strong message that osc will conduct independent, objective inquiries to bolster whistleblower protections. While it is in parents that osc maintains its investigative independence, there is opportunity for cooperation with other agencies. A key element to oscs approach is our robust outreach and Training Program where we train federal employees on all facets of oscs mission. In the last fiscal year, osc conducted the highest number of trainings in the agencys history, increasing visibility among those who may need our protection. In addition, the osc holds regular missions with oawp and the veteran administrations health department. We discuss cases that merit highlevel attention as well as general issues that impact our work. Developing a good working relationship with the v. A. Through open lines of communication has been critical in working towards our share goal of promoting better government through transparency and accountability. We remain steadfast in our commitment to help the v. A. And this committee provide the best possible service to veterans ensuring any reported wrongdoing is taken into appropriate consideration. V. A. Employees are among the greatest patriots in federal service as they have devoted their professional lives serving veterans, and many are veterans themselves. It is imperative they feel supported in doing their jobs without fear of reprisal. I am here to describe how our work contributes to that important goal. In q again for holding this hearing and i look forward to answering any questions you may have. Thank you again for holding this hearing and i look forward to answering any questions you may have. Thank you. You are now recognized for five minutes to provide your testimony. Members of the subcommittee, thank you for the opportunity to discuss the work looking at the v. A. Whistleblower retaliation. Federal employee whistleblowers protect the government from fraud, waste and abuse and reporting wrongdoing. They may risk reprisal from their agency for these disclosures. The v. A. Whistleblowers can choose to submit complaints of retaliation internally through oawp as well as externally through the osc and the merit system protection appeals process. We investigated misconduct against Senior Agency officials and the independent osc is responsible for investigating the retaliation and other practices across the federal government. My statement is based on the report as well as the preliminary observations from the ongoing work to address one whistleblower retaliation investigation. The investigations of whistleblower retaliation and three how they resolve the cases using Settlement Agreement. First the number of retaliation received has increased since fiscal year 2020 with a number of other types increased. Specifically, receiving almost 580 whistleblower retaliation cases in 2020 and 740 in 2023. More than 25 increase. We continue to analyze the work and the data in our ongoing work. A second, cases arising from the employees make up about a third of the workload from fiscal year 2018 to 2022. Over two thirds of the cases involved allegations of whistleblower retaliation. However unlike the increase in oawp cases, the total number of the whistleblower retaliation cases at oac generally decreased from about 900 to 515 over the last five years. The percentage of retaliation cases with favorable action for the complaints is increased from 3 to 10 , which according to osc officials also contributed to longer case time. If warranted, the osc recommends corrective action or facilitates a Settlement Agreement between the parties. Osc cases can have multiple allegations which each have a of a different closing disposition. However, osc closes most cases due to insufficient evidence. Less than 1 due to a Settlement Agreement that brings me to the third point. Settlements can be initiated at any juncture and within the applicable office serves as a settlement official and decides on whether to proceed with negotiations. Once negotiations begin, the general counsel provides the settlement or official with Legal Counsel while complaint ands can offer legal or nonlegal representation or represent themselves. Following an agreement the settlement officials and officers monitor its implementation. The process largely mirrors that for employment discrimination allegations. However, according to v. A. Officials, the department doesnt have specific guidance for the settlements due to the absence of the statutory or the regulatory mandate. In contrast, they have Settlement Agreements in response to the eec requirement. Regarding data around the Settlement Agreement, oawp began tracking them in 2021. However it doesnt have a mechanism to monitor how long it takes to negotiate a settlement. We plan to follow up about these aspects of the process and that is part of our ongoing work. As of september, the v. A. Has settled 71 whistleblower retaliation cases since they began tracking them. Most of the settlements included the monetary award of between 2000 to 500,000 and totaled around 5. 2 million. Additionally the settlements may also have provided for Salary Adjustments for back pay. More than two thirds of the settlements were filed with the merit system protection board suggesting many had gone through the appeals process. The remainder of the cases were filed with the oawp, and the courts with only one settlement addressing a complaint filed with oawp. Most settlements addressed complaints involving the largest of administrations, but the complaints come from across the v. A. s office. 59 of the addressed two or more cases involve the office of information and technology and the central office. This completes my statement and i look forward to answering your questions. Thank you. Rep. Kiggans we will now move to questions and i will yield myself five minutes first. Mr. Costa, what can you tell us about the volume of the retaliation cases initiated and how does that compare to oscs caseload and other federal agencies . In your remarks or answering questions, can you also tease out more about why we need you mentioned osc is doing more seniorlevel cases, but is there a finite need for both of these . It seems they are duplicative in a lot of responsibilities. Dir. Costa thank you. About two thirds of the caseload is from the v. A. V. A. Is the second largest federal agency, so it is not terribly surprising it would be a significant portion. The number of total cases for the years, the v. A. Whistleblower cases for the three years we have in common for osc and oawp is around 1,225 cases a year split between the two agencies, so that number has gone up for oawp as the number has gone down for osc. But the numbers have remained relatively stable during that timeframe. The total numbers. But the total number of osc cases involving v. A. Whistleblowers over the last five years was 3700, over a fiveyear span, and as i mentioned, most of those cases involve most ppp cases involved a v. A. Whistleblower and retaliation allegations. And regarding the duplicative nature, there certainly is a duplicate of nature to these two agencies. We have not looked into whether or not that duplication is warranted or not. It gives v. A. Personnel multiple options to pursue their cases. And there are some subtle differences that we are still looking into as part of our ongoing work as to when it might be more advantageous to go one round one route versus another. In addition, you also have the oig and others where whistleblowers could also raise their concerns. Rep. Kiggans thank you. Mr. Gipe, could you also address the issue of why we need the two separate offices . Sec. Gipe absolutely. First of all, this is what Congress Needed when they wanted more options, so that was a wise thing. I think if you look at the past two years and we talk about the rough start at the beginning and you spoke about trust in your opening statement. And you can see that we are growing that trust and the good work we are doing is growing that trust. I think it is a good option to have more options, but it is also a good option for our employees who wants to come to us if you look at our stats because because we have increased the recommendations that have been taken and increased decreased the time it has taken to do investigations. We are working faster and better. Also osc tends to focus on corrective action and we have until now focused more on accountability, so that is another important part. The last thing i will say is osc looks at ppps retaliation and we also look at Senior Leader misconduct and poor performance and retaliation by a supervisor, so our mandates are a bit larger. That is only one side of our health. We have another side that does a lot of things so we add a lot of value. Rep. Kiggans thank you. Mr. Calhoun, can you explain why a whistleblower would want to contact oawp rather than oig . Dir. Calhoun thank you for the question. We have different authorities. Its broader when it comes to protecting whistleblowers within the v. A. For example, they received their authority from the various acts. None of that gives them the authority to investigate general misconduct. The burden that whistleblowers carry to prove their case is quite high. The next panel will be addressing that is theyve done historically. But we have the ability to use the policies to make sure that even if they dont reach that threshold of the retaliation case, the Senior Leaders are not violating policies and going after whistleblowers. Rep. Kiggans thank you and my time is up so i will yield to Ranking Member mervyn for five minutes. Rep. Mrvan thank you. The testimony touches on the Settlement Agreement process. Weve heard concerns from individuals that the v. A. Was not meeting the terms of the Settlement Agreements, leaving employees with few resources. To what extent did gao come across this issue during this review and could they look at this issue in their plan to follow up thank you, congressman. We are in the middle of our review so we have not delved deeply into that issue. We have copies of the Settlement Agreements that i mentioned, and we are starting to comb through those. We are hoping to talk to va officials who participated in that process and complaints who participated in that process to see where the pain points might be in the process but we have not been able to do that work. We are looking forward to do that in the coming months. You are aware of the issue i am talking about. I know the oawp begin monitoring Settlement Agreements and 2022. To what extent does this ensure the va is upholding its end of the agreement . Thank you. Currently, that is a future state we would like to obtain. Right now we are tracking Settlement Agreements and whether the basic terms such as restoration of pay have been fulfilled. We have a question as to Statutory Authority to go further than that, so we are not tracking whether the settlement is fully implemented yet or not. Is there an entity that is tracking that to see that it is fully implemented . Each agreement has a provision where the complainant can reach out if they feel the Settlement Agreement is not being fulfilled. Typically the complaints, they would reach out to the office but there is no other office designated to tracking enforcement of the Settlement Agreements. One last followup. Your office in the future state will have what role in your vision . In our vision we would track enforcement of the Settlement Agreements and a complainant could reach out if they feel the Settlement Agreement has not been fulfilled according to the terms of the agreement. The four corners sent a letter requesting the 714 authorities va has used to take disciplinary action since 2017. The response was it did not have this information broken down by authority, and his confidence and Historical Records was low. What work is oawp doing that might give us that her data moving forward . Give us a better data moving forward . The secretary decided to stop using it because it had been chipped away. We are still taking action, the va is taking action under title v rather than 714. However, for our part of what we do, the 714 hold is important to protect whistleblowers. Even though we are not using 714 we have done internal policy to make sure we are achieving the same goals to protect whistleblowers. I will let ted answer specifically about numbers but we do not track numbers. We are no longer requesting 714 holds, so we could get numbers for you if you are looking for specifics on 714 holds in the past. Absolutely. Yield back. The chair yields five minutes for questions. Thank you very much. Thank you to everyone for allowing me on this subcommittee. This is an issue near and dear to my heart. I represent a district with five Major Military installations and nearly 40,000 veterans, and i think everyone in this room shares my opinion that they are entitled to the fulfillment of the promises we made to them when they volunteered their service to our country. We are on the same team that way. One facility i represent is our Veterans Affairs hospital, an excellent facility, however in recent years, whistleblowers have emerged to allege there are employees creating a hostile work environment. This is something we want to avoid because we want to attract the best and brightest to care for our veterans. If we allow a facility to establish a repetition that is not a good place to work, we will not get the best care for our veterans. An it ministry of board was convened to investigate this that did a thorough job, they interviewed 36 witnesses, over 4000 pages of documents. They recommended the employee be removed at the v. A. So far the system has functioned as intended. Unfortunately nothing was done. Those whistleblowers came to my office earlier this year in understandable frustration about the fact they follow the rules and raise concerns. A board convened a recommendation not followed by local administrative staff. We looked into it and the chairman was great about partnering. Interviewed the whistleblowers with me. This is the third time this employee had been investigated. He had been recommended for termination multiple times but nothing was done. I met with the director and i was told the v. A. Does not have the legal tools and authority to follow through on that recommendation. I was astonished. In 2017 Congress Passed the v. A. Accountability and whistleblower protection act. It was the express purpose to give the va the tools to deal with stuff like this. We are attempting to deal with tools to deal with this. A bill that would give the va more authority in this respect. I want to talk about why the situation exists and what we can do to fix it. What would you say, does the v. A. Have the tools to discipline and terminate employees . Thank you for the question. I do not know the full circumstances. I think the individual is outside our authority so i have limited knowledge. In previous testimony, they believe they have the tools to take action but i do not have enough information to discuss the specific matter you are referring to. If you could followup, that would be much appreciated. If you do not have the tools you need, we want to make sure we equip you with the tools you need to make sure situations like this do not develop and facilities. The whistleblowers i spoke with are understandably frustrated with the situation. They expressed something more alarming, a hopelessness that they had brought the situation to everyones attention and nothing was done. When whistleblower raises their hand and says something is wrong and the investigation is conducted, the claim is substantiated and nothing is done, they are fearful that enhances the chance of retaliatory action against the whistleblower. If i were in their shoes, i would be afraid of that. What can be done to reassure whistleblowers that retaliatory actions will not take place if they come to oawp with a complaint . I would follow up a little bit, if wrongdoing does take place, there are tools available across the federal government to deal with that. My understanding is the person you are referring to is not within our jurisdiction but i can give you more than an answer on your question. We would be happy to give you briefings on any situation in a private setting. There are things we can do to improve the atmosphere and the culture of accountability. This week we kicked off our second climate review claimant review which looks at the Medical Center to see if there is an appropriate atmosphere where people feel they can raise allegations of wrongdoing. The climate review is a several step process, and i believe the survey went out this week, and will go for two weeks. We go to a site visit in december. If the Medical Center gets resolved and looks at them, it does not help much but the results will show where there are weak points and opportunities for improvement. You can use those, the hospital can use those to make important changes. We can also increase our training to make sure people know all the options they have. This was not within our jurisdiction, it would be up to the responsible management official to decide what discipline was appropriate. Thank you. I want to emphasize we are on the same team but we want to make sure you have the tools necessary to set an environment where this does not happen again. I yield back. The chair now recognizes mr. Pop us for five minutes. I think our panel for the points they made today. I do appreciate how challenging it is. I will say after six years of the establishment of oawp, it is clear there are shortcomings. We have seen repeated leadership changes and lack of accountability when it comes to enforcement of the Settlement Agreements. We know the office of general counsel plays a role when it comes to implementation of these agreements. They are binding and assigned by the department and the whistleblower and agrees to take actions to reinstate and protect in these agreements but this committee has documented instances just doesnt comply and takes months or years to respond or causes other problems for them so its critical to know since they are tasked with protecting the department, it has an interest with a conflict of interest with whistleblower cases when incentivizing oawp. We introduce a bill and a key provision in this was providing greater independence and leadership establishing a separate caucus for general counsel, and would prevent indirectly advising on those cases. Im wondering if you can reflect on that provision is something they didnt support in the last congress and can you talk about the principle of independence and whether that would make a difference and protection for those coming forward with information to help serve our veterans better . When i hear issues of our independence, it stems more so we set up our own division to make sure we are doing our own work because then on the backside as you mentioned they are working out a settlement in some cases. At this point theres nothing where we are getting involved in the Settlement Agreement process and theres the complainant and the agency. We are not involved in that part. I think the reason the v. A. Opposed that provision is we thought we could take care of the other part so there is some language in the act that i think talks about us having more involvement in the Settlement Agreements but to be involved in the actual agreement then we could be tracking and holding helping those if they feel theres a breach in the Settlement Agreement after the are there provisions of that bill that i mentioned in another piece of legislation out there and other things we can be doing to the tools you need to do your job better and improve performance because clearly theres been a lack of confidence in the numbers weve seen over a lot of years. 00 31 54 i think a couple of things. First the numbers show. They have another place to go to and you can see that they are choosing to come to us quite a bit. As far as the statute, i will tell you it has a lot of provisions and as youve noted we are five or six years weve been around we are continuing to grow into this. I think theres a lot of good stuff there. We are trying to have continuous improvement. A lot of the improvements weve been making theres nothing that jumps out at me that says we must have statutory change. But we are still continuing to grow into the statute and we are heading down that trajectory. I hope that you can appreciate the frustration on this side of the table because weve heard similar statements from leaders after leader talking about implementation of the statute and about getting it right for the whistleblowers or employees and veterans. We want to continue to partner on that. We want to do one quick extra round of questions. Approximately what percentage is for oawps investigation . I dont have that information and i dont believe we have that. The breakdown, our office is the same way, the investigating side is the big side of the office, 80 to 90 ploys out of 131 employees out of 131. The Settlement Agreements do not come out of that 3 million, correct . Our tracking of the Settlement Agreements and oversight directorate is on the other job. Do you have a cost estimate how much each disciplinary recommendation is costing . We can get that for you. You showed the proportion of the cases in 2019 a few years after the creation of oawp have since decreased. Do you attribute this to other factors . Its hard to say since its been a few years but it appears to be a growing awareness as suggested by oawp. They did address the recommendations. That might be a factor in the growth of their cases. As i mentioned before, the total number of cases between osc and oawp remain the same with comparable data. 1300 to 1200 cases within that range. It seems as though some people are moving more of their caseload to oawp over the last few years. Thank you very much. If you could clarify something that is ringing in my head. The question was asked about a specific case, and with your answer you stated i want to separate the specific case from a general question, you stated an employee was not within their jurisdiction of the v. A. Can you explain to me how someone who has an impact on others at a hospital doesnt have jurisdiction from the va or doesnt fall under the jurisdiction of the va . If that is exactly what i said, i misspoke. Let me give you the nuance that i meant to say. The va had jurisdiction of all employees for sure. So if i said something else, thats incorrect. What i was trying to say is oawp has jurisdiction to investigate Senior Leadership misconduct. And whistleblower retaliation by supervisors. So if we get a lower level employee who is not a Senior Leader or supervisor, then we do not have jurisdiction to look into that case. But other parts do and other administrative investigatory boards and places like that where they can go. The point of clarification for me an employee who doesnt , fall in the supervisor category, if someone blows a whistle, this employee it is another nuance. If somebody is making a complaint against an employee for either misconduct or poor performance or retaliation, we would have a Senior Leader or supervisor. If it is a straight whistleblower disclosure about someone or something, its very much like oscs Disclosure Unit. That is a situation we are not investigating. A good example is if someone says there is a bunch of cardboard in the stairway at a hospital that is a potential fire hazard, that would be a straight whistleblower disclosure that would not be investigated by us. We would refer to the hospital. They take care of it, report back to us and we resolve that issue. It is a bit of a nuance. It is nuanced, so i will ask this question. Say someone is abusive from one employee to the next and that whistleblower doesnt get the same protections, if it is not against his supervisor or given to another organization . If someone is abusive and creating a hostile work environment, and it is not a Senior Leader so not within our jurisdiction, there are other ways that can be dealt with. That sounds more like jurisdiction over that and also harassment provisions. There is a mechanism that deals with harassment provisions. In your opinion, would it be a Better Service to veterans and the v. A. If the legislation covered all employees and not just supervisor positions . It would give us a lot more work. If we are resourced to take care of that, we would be happy to meet that mission. It will be a large mission. Having said that, for people experiencing those things, this is a situation where a whistleblower navigator or referral division, when they get these cases, they will point people in the right direction. Last question, does your organization follow up on that . Document it . Both. Our whistleblower referral disclosure as we call them we refer them out and they come back to us and we close the case when we get information that the issue has been taken care of. Thank you and i yield back. I went over a couple of minutes, i will try not to overstay my welcome. Mr. Calhoun, in looking at other investigations, it seems to me about 2 of the investigations result in a disciplinary action, does that sound about right to you . Thank you for the question. If i could expand to give you some perspective. To go back to fiscal year 21, 38 of the recommendations were discipline resulted in the action being implemented. During that same timeframe 33 resulted in the disciplinary actions being implemented. There needs to be context added when we talk about the percentages but to give an idea theres about 3 of the investigation that result in disciplinary actions. Nondisciplinary sometimes result in discipline but we leave that up to management discretion. There is an oversight provision. Its not taken by the va. To be clear, when we talk about disciplinary action thats not necessarily determination. It could be something as mild as a written warning or counseling or Something Like that. Yes, sir. Going back to march, 2019, we received 35 allegations of whistleblower retaliation. Of the 35 allegations, 11 resulted in investigations and five resulted in recommendations for disciplinary action. Of those 5, 1 was fully in limited. In three events the employee left the v. A. , and in the fifth no action was taken. I do not know if that gives me comfort or further alarms me. The point obviously is even if it is 3 and not 2 , that is alarming because we are telling whistleblowers who are coming forward at great personal risk to themselves and the reputations, and feeding us information. If only 3 of the time their information results in disciplinary action being taken, that is not reassuring to them. If i can give you a platform, if you could tell us briefly in case there are whistleblowers watching, and i hope there are, tell us how a whistleblower would report retaliation to you and the v. A. Absolutely. Im happy to speak about how whistleblowers come forward with the retaliation claim. We have multiple ways of filing a complaint. We recently launched a portal that makes the experience easier. There is a lot of education built in on what it requires. Whistleblowers are welcome to go to our website and review the materials and fill out a complaint that is then processed. They are doing a quick few days check to make sure we have jurisdiction over the from there, the case is assigned to the appropriate unit, whether that be our our Disclosure Unit or were they allege wrongdoing or retaliation from. From there, they have an attorney they can talk to. Then we work our way through the investigation. If they think they have been retaliated against, they fill out the form, and the cases investigated. What is the url . Osc. Gov, and there is a big green button that says, file a complaint. Thank you very much. Thank you. Our first panel of witnesses is now excused. If i could invite the second panel to take their seats well take a few minutes for transition. Thank you