Whistleblowers would gain some of the strongest protections in history — and supervisors who punish them for reporting wrongdoing would themselves be punished.
“This would be the strongest law in the U.S. Code requiring accountability for bureaucratic bullies who retaliate,” said Tom Devine, legal director for the nonprofit Government Accountability Project, one of the leading advocates for whistleblowers. “It puts whistleblowers on an unprecedented pedestal.”
The House bill limits appeal rights for VA employees facing termination or demotion and extend new staffers’ probationary periods. Opponents — including President Obama, who said he will veto the measure if the Senate approves it — consider the legislation overly broad and a threat to federal workers’ due process rights.
Yet the VA Accountability Act of 2015 also would remove the rights that managers who retaliate against whistleblowers have had throughout government: The manager is rarely punished and is often promoted or, in the case of Sharon Helman, a former senior executive at the center of the disclosures of fudged health-care wait times for veterans, given a bonus.
The legislation would require supervisors to report whistleblowers’ disclosures of wrongdoing up their chain of command, making them accountable to the employee. There would be mandatory discipline for anyone found to have retaliated, starting with a 14-day minimum suspension for a first offense and removal for the second. All VA employees would have to be trained on how to protect whistleblowers.
“Everywhere else in the government, you report something to the inspector general and in three or four months they’ll get started on it, maybe,” Devine said.
Joseph Colon, an administrator at VA’s Caribbean Health System in San Juan, Puerto Rico, who was told he was being fired after he reported the arrest of the system’s director on drug possession and drunk-driving charges, said, “Until VA implements a zero-tolerance policy in regards to whistleblower retaliation, unethical managers will continue to participate in this kind of behavior. The whistleblowers deserve accountability for the people who made their life miserable.”
Colon is now back at work, after the Office of Special Counsel, which investigates claims of retaliation against federal employees, announced a settlement with VA that exonerated him.
VA officials testified before Congress in April that the proposed protections for whistleblowers were unnecessary. Meghan Flanz, chief of VA’s Office of Accountability Review, said the agency is working closely with the special counsel’s office to settle those cases and punish retaliatory supervisors.
But she also told lawmakers that firing a manger is a time-consuming process. And that the special counsel had had few tools to influence it. “It’s a lot easier to help a whistleblower than it is to punish a retaliator,” said Adam Miles, deputy special counsel for policy and congressional affairs. “The burden is different.”
The special counsel must prove that a manager who demotes, tries to fire or otherwise makes life miserable for a whistle blower did so directly because of their disclosure. “A manager could say, ‘I had good reasons for demoting or firing this employee,'” Miles said. Even if VA agrees, the manager has a right to appeal.
In Helman’s case, the agency’s attempts to fire her for her role in the wait-times scandal in Phoenix, where she led the VA hospital system, were not good enough. The independent board that heard her appeal ruled that it could not substantiate that Helman knew or should have known that employees at her hospital lied about health-care wait times for former troops seeking treatment for everything from cancer to post-traumatic stress disorder.
Instead, the board concurred with VA that Helman had improperly accepted gifts from a consultant with business before the agency.