VA WHISTLEBLOWER OFFICE FAULTED BY THE VA OIG
By Peter Broida
And then there was the legislation designed to improve operations at VA by making it easier to remove incompetents while protecting whistleblowers, whose complaints could be reviewed by an organization created within VA specifically to address whistleblowers' complaints and to enhance protections for those individuals.
The whistleblower office, designated the Office of Accountability & Whistleblower Protection" (OAWP) may have been well intended, but according to the VA OIG, its efforts have been misguided.
From OIG's Report, "Failures Implementing Aspects of the VA Accountability and Whistleblower Protection Act of 2017," issued on October 24, we learn:
[I]n its first two years of operation, the OAWP acted in ways that were inconsistent with its statutory authority while it simultaneously floundered in its mission to protect whistleblowers. Even recognizing that organizing the operations of any new office is challenging, OAWP leaders made avoidable mistakes early in its development that created an office culture that was sometimes alienating to the very individuals it was meant to protect. Those leadership failures distracted the OAWP from its core mission and likely diminished the desired confidence of whistleblowers and other potential complainants in the operations of the office.
Whistleblower protection has been on the books since the 1978 Reform Act. Agencies charged with whistleblower protection, the Office of Special Counsel and MSPB, and the Board's reviewing court, have been repeatedly assailed by congress for lackluster enforcement efforts or for producing decisions during adjudication curtailing protections against reprisal. Several statutory amendments of the CSRA have resulted in no discernable enhancement of whistleblower protections as a practical matter (aside from the availability of damages). Congress expanded the scope of judicial review beyond the Federal Circuit, and other circuits have expressed displeasure with MSPB over its strained treatment of whistleblower issues.
What is to be done? If efforts to inform or reform the MSPB and OSC, and if creation of separate whistleblower protection organizations within agencies doesn't work, it may be that whistleblower cases should, like EEO cases of federal employees, be subject to complaint in federal district courts with jury trials. Let jurors, rather than bureaucrats, decide the cases for those employees with the stamina and resources to pursue a judicial remedy.