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President Signs VA Whistleblower Law

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  • Posted on: Jun 27 2017

On June 23, 2017, President Trump signed legislation that is intended to protect whistleblowers who report problems at the Department of Veterans Affairs (“VA”), and improve employee accountability for misbehavior and abusive conduct. In April of this year, the president signed an executive order that created the Office of Accountability and Whistleblower Protection (“OAWP”) within the VA to investigate allegations of misconduct – including retaliation against whistleblowing employees who reported abuses — and identify systemic barriers that have prevented senior VA officials from addressing such problems, including with disciplinary action. 

At the time of the executive order, VA Secretary David Shulkin told reporters that “[a]ccountability is an important issue to us at VA and something that we’re focusing on to make sure that we have employees who work and are committed to the mission of serving our veterans, and when we find employees that have deviated from these values, we want to make sure that we can move them outside of VA and not have them working at VA.”

The bipartisan legislation, the VA Accountability and Whistleblower Protection Act of 2017, makes the OAWP permanent. The Act gives the VA Secretary more authority to fire misbehaving or underperforming employees, shorten the appeals process for that firing, prohibits employees from being paid while they pursue the appeals process, and revokes bonuses from underperforming staffers and, in certain cases, reduces the pensions of executive-level employees who are disciplined. It also includes new protections against retaliation for employees who file complaints with the VA general counsel’s office (i.e., whistleblow) and shortens the process of hiring new employees to fill a workforce shortage at the VA.   

The Act marks the second time Congress has focused on changing the disciplinary process at the VA. In 2014, Congress tried to prevent senior executives from appealing disciplinary measures at the VA to the Merit Systems Protection Board in the Veterans Access, Choice and Accountability Act. However, the Court of Appeals for the Federal Circuit ruled that the act was unconstitutional because it violated the Constitution’s appointments clause.

Some observers believe that the president is fulfilling a campaign promise to veterans. On the campaign trail, the president called the VA, the government’s second-largest department, the “most corrupt” and “most incompetently run agency in the United States.” At the signing ceremony for the new law, the president spoke about the VA wait time scandal in 2014 that saw veterans, who had been put on secret wait lists by some VA workers, die while waiting for appointments for medical exams.

“What happened was a national disgrace, and yet some of the employees involved in these scandals remained on the payrolls,” Trump said. “Today, we are finally changing those laws.”

Proponents of the measure believe the legislation will help to usher in a new era of accountability and integrity at the VA and place greater emphasis on patient outcomes. Although public employee unions opposed the measure, the law had overwhelming bipartisan support in Congress.  

Since the 2014 scandal, the VA has been under a microscope from veterans organizations, Congress, and the public. This increased focus has revealed the existence of a significant number of misbehaving VA employees, as well as insufficient laws and policies in place to reprimand or remove them for violating ethical or legal standards.

“There’s nothing more demoralizing to our workforce and to our veterans than when the VA is forced to take employees back who have deviated from those values,” Secretary Shulkin said.

The new law follows a trend of whistleblower programs that have been implemented by the federal government to address fraud and other wrongdoing. In particular, the SEC, CFTC and the IRS all have whistleblower programs, and whistleblowers who report wrongdoing under the False Claims Act, are entitled to a percentage of any money recovered by the government (as are whistleblowers who report wrongdoing to the foregoing agencies). The question remains, however, whether whistleblowers under the new law will receive financial rewards for reporting wrongdoing at the VA.  

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