DEPARTMENT OF VETERANS AFFAIRS OFFICE OF INSPECTOR GENERAL STATEMENT OF CHRISTOPHER A. WILBER COUNSELOR TO THE INSPECTOR GENERAL OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF VETERANS AFFAIRS BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON VETERANS’ AFFAIRS, HEARING ON “PROTECTING WHISTLEBLOWERS AND PROMOTING ACCOUNTABILITY: IS VA MAKING PROGRESS?” MAY 19, 2021 Chairman Pappas, Ranking Member Mann, and Subcommittee Members, thank you for giving the Department of Veterans Affairs (VA) Office of Inspector General (OIG) the opportunity to discuss whistleblower protections and procedures at VA. My statement on behalf of the OIG describes our efforts to protect whistleblowers while examining their concerns. Specifically, it highlights OIG work examining VA’s Office of Accountability and Whistleblower Protection (OAWP) and the implementation of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act).1 The OIG is committed to serving veterans and the public by conducting independent oversight of VA programs and operations through audits, inspections, reviews, and investigations. We rely on allegations, complaints, and information from VA employees, veterans and their families, Congress, and the public when deciding where to focus our resources. The OIG treats all complainants as whistleblowers; we respond respectfully, safeguard confidentiality, and evaluate their concerns.2 An individual’s decision to bring allegations should not have to be weighed against the risk of possible adverse actions. 1 The law was signed on June 23, 2017 and became Public Law 115-41. 2 Federal law provides whistleblower protections to a federal employee or applicant for federal employment or an employee of a federal contractor, subcontractor, grantee, or subgrantee who discloses information that they reasonable believe evidences gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation. See 5 U.S.C. § 2302(b)(8) (federal employees and applicants for federal employment) and 41 U.S.C. § 4712(a) (contractors, subcontractors, grantees, and subgrantees). Our oversight report from 2019 found significant failings at the OAWP, which had a chilling effect on complainants that to some extent lingers today.3 These failings included the lack of relevant policies and procedures, fundamental misunderstandings of investigative scope, not holding individuals accountable, and inadequate protections for whistleblowers. As a result, the immediate past and current OAWP leaders have been working to overcome the significant challenges in meeting the office’s statutory mission, mandates, and goals. Since our report was published in 2019, the OIG has observed advances in the OAWP’s operations under former Assistant Secretary Tamara Bonzanto and current Acting Assistant Secretary Hansel Cordeiro. There is also marked improvement in relations between our offices. OIG and OAWP leaders meet regularly to discuss matters of mutual interest and updates on the OAWP’s progress in developing its procedures and addressing our 2019 report recommendations. Before providing more information on our oversight of the OAWP, it is useful to provide some context on how we triage whistleblower and other complaints and coordinate with other oversight and investigative bodies. BACKGROUND The OIG operates a hotline staffed by a dedicated team to receive whistleblower and other complaints. The hotline received more than 14,000 contacts for the first six months of fiscal year 2021 and over 28,000 contacts during fiscal year 2020. We receive information via telephone, fax, mail, and through web submissions. In addition to the OIG’s many outreach efforts, a link to the hotline submission form is on the OIG’s website. There are also posters in VA facilities on how to contact the OIG. As the result of site visits and other engagements with stakeholders, OIG staff may also be contacted by individuals directly with information or allegations of wrongdoing. These contacts are also routed through the hotline for tracking and potential follow-up. The OIG only investigates complaints that are related to VA programs, personnel, operations, or services. Our staff refer complainants who have concerns unrelated to VA to other resources, Offices of Inspectors General, or investigative agencies. The Whistleblower Protection Act vests the authority to provide relief for violations of the Act with other specific entities and prohibits reprisal against public employees, former employees, or applicants for employment for reporting a violation of a law, rule, or regulation. That prohibition of reprisal extends to reports of gross mismanagement and waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.4 The OIG lacks the legal authority to provide direct relief to VA employees or applicants who allege whistleblower reprisal and so does not investigate those matters. As such, VA employees (current and former) and applicants alleging whistleblower retaliation are informed of their right to contact the Office of Special Counsel (OSC) or appeal directly to the Merit 3 VA OIG, Failures Implementing Aspects of the VA Accountability and Whistleblower Protection Act of 2017, 18-04968- 249, October 24, 2019. 4 P.L. 101-12, April 10, 1989. 2 System Protection Board (MSPB), if appropriate. The OSC not only has the authority to investigate these matters, it also has the authority to seek corrective action through the MSPB on behalf of an employee or former employee. In addition to the OSC or MSPB, VA employees may also be informed of their right to contact the OAWP, which has statutory authority to investigate allegations of retaliation and make recommendations to the Secretary for disciplinary action. The OIG may, however, investigate the underlying problem or concern identified in a complaint. The OIG will investigate appropriate complaints alleging retaliation against employees of VA contractors for engaging in protected activity. VA contractors are protected against whistleblower retaliation but, because they are not VA or government employees, they lack recourse to the OSC or MSPB. The OIG investigates their allegations and reports its findings for action by the Department. Interaction with Complainants The OIG hotline staff work with personnel from our front-line directorates with the relevant expertise to engage in an extensive triage process. Together they determine the best course for disposition and identify the most critical and impactful issues for priority attention, particularly individuals at imminent risk of harm. Allegations become cases based on a variety of factors, including issues having the most potential risk to veterans or VA programs and operations, and those for which the OIG may be the only avenue of redress. Specifically, the hotline accepts information and complaints that result in reviews of the following types of misconduct: · VA-related criminal activity · Systemic or other patient safety issues · Gross mismanagement or waste of VA programs and resources · Misconduct by senior VA officials The allegations of wrongdoing that are not selected by an OIG directorate for review may be referred by the OIG hotline to VA for additional information or action. Every effort is made to safeguard the complainant’s identity and to request information and review at levels above where the misconduct is alleged to have occurred. If a complaint is referred to VA, it is as either a case referral or a non-case referral. A case referral requires that the VA office or facility to which the matter is referred review the matter and respond back to the OIG about its findings and any actions taken. For example, if it is alleged that employees at a facility are not trained, the VA may be asked to provide documentation demonstrating who has been trained. The appropriate OIG directorate reviews that information and determines if it is responsive and appropriate. If so, the OIG will close the referral. If not, the OIG may ask for clarification or may decide to open a review of the matter. This practice is a force multiplier allowing the OIG to provide oversight of many more issues than if it relied solely on its own resources for all review activity. A non-case referral is for matters needing to be brought to VA leaders’ attention that do not rise to the level of requiring additional OIG oversight of the response. 3 Communication with Complainants Because complainants can contact the OIG through various methods, the way in which the OIG communicates back to them will vary. If they call, the OIG hotline analyst listens carefully and asks probing questions to ascertain as much relevant information as possible. The information is then forwarded to the OIG personnel who can determine next steps. OIG staff also advise the caller of the other agencies that should be contacted if there is an allegation of retaliation or other matter not within our jurisdiction. This will be annotated in the electronic file for that contact. If they contact the OIG hotline through mail or fax they will, at minimum, receive either a standard response or a semicustom response.5 A web submission will generate a screen explaining the process and providing information on the types of complaints that the OIG is not authorized or best situated to address. The OIG treats all whistleblowers and others who provide information to the OIG with the utmost respect and dignity, including protecting to the fullest extent possible the identities of those who wish to remain confidential or anonymous sources. When a case is opened, the OIG notifies the complainant, if known, in writing or via email. While the OIG does not provide complainants the complete results of cases when they are closed due to privacy issues, complainants are given information on how to request the results of their case allowed to be released under the Freedom of Information Act. Whistleblower Protection Coordinator The OIG also plays an important role in helping whistleblowers access other potential avenues for redress.