More VA Whistleblowers Coming Forward, Campaign Says
Lawyers who have represented VA informers say the agency is a heinous abuser of rights.
U.S. Veterans Affairs Secretary Eric Shinseki, left, and Veterans Affairs Undersecretary for Health Robert Petzel testify before the Senate Veterans' Affairs Committee on May 15, 2014, in Washington, D.C. The American Legion called for Shinseki to resign amid reports by former and current VA employees that 40 patients may have died because of delayed treatment in Phoenix.
Conscientious workers at the Veterans Health Administration aware of their employer's reputation for punishing people who expose wrongdoing were given a new outlet last week.
The Project on Government Oversight (POGO) and the Iraq and Afghanistan Veterans of America unveiled an encrypted web submission form Thursday soliciting horror stories in the wake of a nationwide furor about fudged wait time records and related veteran deaths in Phoenix.
POGO Director of Communications Joe Newman says the groups are looking for systematic problems and received 310 submissions as of Monday morning. The majority of reports are thus far from veterans and members of the public, and less than 10 percent are from VA employees, Newman says.
A few appear promising, but POGO plans to carefully vet allegations before moving forward.
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Blowing the whistle with the help of interested nonprofits is perfectly legal, three attorneys who specialize in whistleblowing law tell U.S. News.
And using a third party to snitch on bad behavior may be well worth considering.
“In short, VA employees can still be protected if they go to nonprofits or the press rather than the agency," says Cornell Law School professor Stewart Schwab. “This is particularly so when there has been a pattern of unresponsiveness.”
Stephen Kohn, executive director of the National Whistleblower Center, knows the risks of internal reporting. He’s currently representing a surgeon who blew the whistle on shocking safety violations at the VA hospital in Dallas about two years ago.
The surgeon, Kohn says, wrote a detailed memo to superiors noting that colleagues nearly had him remove the incorrect kidney from a patient and, in another instance, presented for surgery a man too senile to provide informed consent.
The surgeon was fired – despite, Kohn says, an admission of the errors from the doctor’s boss – and he’s been struggling ever since for reinstatement from the federal government's three-member Merit Systems Protection Board.
“A VA employee under the law has numerous options for blowing the whistle. The problem is that the agencies that implement the law are biased, incompetent and Mickey Mouse,” Kohn says.
The Office of Special Counsel, which can file a stay stalling disciplinary action against whistleblowers, and the Merit Systems Protection Board, which can reverse disciplinary actions, “have extremely poor reputations among federal employees for providing protection,” he says.
Though Kohn believes the Office of Special Counsel is improving under its current leadership, he finds it too small and too ungenerous with stays. The Merit Systems Protection Board features two presidential employees and offers “second-class justice” from a phony judicial system, he says.
“If they face retaliation, they have a very difficult road ahead,” he says. “The VA is notoriously bad, and institutionally bad, and no one has taken any steps to fix it – Congress, the Office of Special Counsel, the inspector general.”
Tom Devine, legal director of the Government Accountability Project, says “VA workers have a long-established right to publicly disclose unclassified information that they reasonably believe is evidence of illegality, gross waste, gross mismanagement, abuse of authority or a substantial and specific threat to public health or safety.”
The VA, Devine says, has the government’s worst record of compliance with the 1989 Whistleblower Protection Act and – in reality – the right to blow the whistle doesn’t immunize employees from consequences.
“This is an agency which has a track record of being uniquely intolerant to well-taken whistleblowing,” he says. “The gap between legal rights and reality is tragically broad for VA whistleblowers. … It’s almost the bureaucracy’s lowest common denominator, both in terms of quality of performance and in terms of secrecy enforced by repression.”
Devine says he’s represented a half-dozen VA employees in the past decade, and has seen them put under criminal investigation, stripped of duties, barred from workplaces and harassed. None were charged with committing a crime. Among his clients was Robert Van Boven, a neurologist who blew the whistle on the VA for allegedly wasting $1.2 million, and who Devine says faced a multiyear nightmare following his disclosures.
“Just being put under criminal investigation and living with the possibility you could be branded a crook … those are terrifying consequences,” Devine says, “and the VA’s track record is unmatched for defiance of Whistleblower Protection Act free speech rights, it’s just a fact of life for people in this field.”
Devine says inspector generals and prosecutors sometimes carry out the retaliation without realizing they’re been used for that purpose.
Though the Obama administration is famously hostile to whistleblowers, Devine and Kohn say in recent decades the Department of Justice has exclusively prosecuted whitleblowers who leak national security-related information.
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So long as disclosed information is not classified or otherwise protected by law from distribution – such as confidential medical records – whistelblowers are unlikely to be prosecuted, they say.
“I’m optimistic that the recent scandals will be a catalyst for a long overdue spotlight,” Devine says. “Now, whether a spotlight will be sufficient for change is another question, that’s a whole 'nother campaign once you get people’s attention.”
So if you voted for Obama in 2008 because he was going to fix the VA as he claimed in his tump speeches before the election how do you feel now? Shinseki got his job as head of the VA because he opposed the surge in Iraq with the erroneous claim that it would take 500-700 thousand troops to accomplish the goal of pacifying certain areas of Iraq. His appointment was political and not based on his management skills.
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