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Doctors and Congress focus on retaliation against VA employees


In the heat of the controversy over gaming of patient waiting lists at veterans facilities, about 100 health-care providers gathered in Washington this week.

Though a persistent undercurrent, the scandal did not dominate discussions at the National Association of Veterans Affairs Physicians and Dentists (NAVAPD) conference, but a related issue rang a loud bell with participants.

Joe Davidson writes the Federal Diary, a column about federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns. View Archive


They clapped with approval when Katherine Mitchell, a physician at a Veterans Affairs facility in Arizona, said that “no one should have to lose their job or fear for their job for doing the right thing.”

Retaliation from management is a real concern among Department of Veteran Affairs (VA) employees — certainly among the doctors who nodded with approval when Mitchell and others spoke about the use of sham peer reviews as a way to punish those who complain too much or too openly or simply are in the way.

James Martin, a physician with the American Federation of Government Employees National VA Council, told the gathering that sham peer reviews are a problem in the department. In a later interview, he elaborated, saying that “orchestration of facts” related to issues involving contact with patients is an issue “at some facilities.” Sham reviews, he explained, can be used when management wants to replace or punish a doctor.

Gina Jackson, a VA spokeswoman, said the department “is absolutely committed to creating an environment in which employees feel free to voice their concerns without fear of reprisal. . . . Protecting employees from reprisal is a statutory obligation and a priority for the VA. Managers and supervisors have a responsibility for enforcing appropriate workplace behavior. Moreover, managers and supervisors are expected to take prompt action to deal with conduct identified as reprisal based on whistleblowing.”

Meanwhile, the nonprofit Project on Government Oversight has refused to turn over whistleblower files demanded by a subpoena from VA’s inspector general’s (IG) office. “It would cause irreparable damage to POGO’s fundamental mission of uncovering systemic problems in federal agency administration, as future whistleblowers would rightfully be suspicious that POGO might jeopardize their confidentiality and subject them to retaliation by government officials,” POGO said in a letter to the IG’s office.

Retaliation against agency whistleblowers also was discussed during Thursday’s House Veterans Affairs Committee hearing.

Republican Reps. Jeff Miller (Fla.) and Dan Benishek (Mich.), who both spoke to the NAVAPD conference the day before, asked a VA official about reports that VA employees were instructed not to talk with members of Congress.

Benishek, a physician and former VA employee, said agency doctors have told him they are “reprimanded and have this retribution if they try to change the system.”

Robert L. Jesse, the department’s principal deputy undersecretary for health, told the hearing “there was a caution put out,” an “ill-worded document” advising facility directors to wait until they received data from the central office before they released information “to congressionals.”

That caution, he continued, “was followed immediately by a statement of clarity” indicating that there was no prohibition against talking to members of Congress.

“We get terribly compromised,” Jesse added, “if we’ve got one person saying one thing and another person saying another.”

Miller, the committee chairman, seemed to accept that explanation. But shortly before the hearing adjourned, he returned to the subject, reading Jesse the law that calls for a potential five-year prison term for impeding a congressional inquiry.

“This is serious stuff,” Miller said with emphasis.

Jesse: “Yes sir.”

Miller: “I hope the department gets it.”

The hearing was held as the House and Senate consider legislation designed to shake up a VA that has been severely damaged by revelations of employees covering up long wait times for patients to get service. The FBI is investigating the possibility that some administrators lied about waiting lists to get performance awards.

The Senate approved a bill Wednesday that, among other things, calls for hiring more health professionals. Now that bill must be reconciled with previously approved House legislation. One difference is the way VA Senior Executive Service members would be treated.

The House would kill certain long-standing civil-service protections by eliminating appeal rights for fired VA senior executives. The Senate’s bill would severely weaken those protections, allowing employees just one week to appeal and requiring the Merit Systems Protection Board to rule on appeals within 21 days. That process now can take a year.

Each chamber approved its bill overwhelmingly. The harsher House bill was supported by two Democrats and a Republican from the local region who generally protect federal employees. Democratic Reps. Elijah E. Cummings (Md.) and Gerald E. Connolly (Va.) and Republican Rep. Frank Wolf (Va.) were among the 390 House members who voted for the House bill. The 33 members opposing it included Democratic Reps. Steny H. Hoyer, Chris Van Hollen and Donna F. Edwards of Maryland and James P. Moran of Virginia.

Sen. Barbara Mikulski (D-Md.) voted in committee to approve a measure that, like the House bill, would do away with senior executive appeal rights. Citing “systemic failures in our VA system,” she said that “these problems have dragged on long enough and must be addressed and corrected.” Mikulski said she also supports the bill allowing the workers truncated appeal rights, as passed by the Senate.

Edwards agrees with the need to correct the systemic failures. But noting that she is the “daughter of a career service member and veteran,” the lawmaker said weakening “employment protections” and “threatening our civil-service employees to the whims of political gamesmanship” is not the answer.

It’s not the answer. But weakened, if not terminated, civil-service protections is what this Congress is determined to produce.

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at

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