2018 Department of Veterans Affairs Report To The Senate Committee on Veterans? Affairs And The House Committee on Veterans? Affairs 0n the Activities of the Office of Accountability and Whistleblower Protection For the Period: October 1, 2017 September 30, 2018 This report is required under section 323(f) of title 38 of the United States Code US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Table of Contents I. INTRODUCTION 3 II. MISSION 3 VALUES 4 IV. ORGANIZATION 5 V. SUMMARY OF OAWP DIVISIONS 5 VI. OAWP ACTIVITIES DURING FY 2018 7 A. Whistleblower disciosures 7 B. Investigations 10 0. Disciplinary recommendations 11 VII. TRAINING AND STAKEHOLDER ENGAGEMENTS 11 ON THE 12 Appendix 38 U.S.C. 713 and 714 actions coordinated by OAWP during FY 2018 13 Appendix 2: 38 U.S.C. 714(e) holds during FY 2018 14 US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 I. INTRODUCTION The Department of Veterans Affairs (VA) Office of Accountability and Whistleblower Protection (OAWP) was statutorily established under section 101 of the VA Accountability and Whistleblower Protection Act of 201 7 (Accountability Act), Public Law 115-41, enacted on June 23, 2017. OAWP is headed by Dr. Tamara Bonzanto, who has served as the Assistant Secretary of Accountability and Whistieblower Protection (Assistant Secretary) since January 7, 2019. This report is required under section 323(f) of title 38 of the United States Code (U.S.C.) and provides a description of activities during Fiscal Year (FY) 2018, which covers October 1, 2017, through September 30, 2018.1 ll. MISSION statutory functions are elaborated under 38 U.S.C. 323(0) and include the following: A. advising the Secretary of Veterans Affairs (the Secretary) on all matters relating to accountability; B. issuing reports and recommendations on matters addressed in subparagraph C. receiving whistleblower disclosures2; D. referring whistleblower disclosures received by OAWP for investigation, if the Assistant Secretary has reason to believe the whistleblower disclosure is evidence of a violation of a provision of law, mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety; E. receiving and referring disclosures from the US. Office of Special Counsel (080) for investigation; F. recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by Office of Inspector General (OIG), Office of the Medical Inspector (OMI), 080, and the Government Accountability 1 38 U.S.C. requires that this report contain activities of OAWP ?during the calendar year in which the report is submitted.? However, data would be iimited to a five?month or fees period of time as this report is due by the end of June. To cover a wider period of time, this report addresses data for the prior fiscal year, in this case FY 2018. Covering a prior fiscal year aiso aligns this report with other fiscal?year reporting requirements. 2 Under 38 U.S.C. 323(g)(3), ?whistleblower disclosure" is defined as ?any disclosure of information? by a VA employee or applicant for VA empioyment, which the empioyee or applicant "reasonably beiieves evidences (A) a violation of a iaw, rule, or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantiai and specific danger to public neaith or safety." US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Office (GAO), including the imposition of disciplinary actions and other corrective actions contained in such recommendations; G. analyzing data from OAWP and OIG telephone hotlines, other whistleblower disclosures, disaggregated by facility and area of health care if appropriate, and relevant audits and investigations to identify trends and issue reports to the Secretary; H. receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving the following: 1. a VA senior executive3; 2. an individual employed by VA in a confidential, policy-making, policy- determining, or policy-advocating position; or 3. a supervisory employee?, if the allegation involves retaliation against a VA employee for making a whistleblower disclosure; and l. making recommendations to the Secretary for disciplinary action as the Assistant Secretary considers appropriate after substantiating any allegation of misconduct or poor performance pursuant to an investigation carried out as described in subparagraph or H. Ill. VALUES Working collaboratively with staff, OAWP has developed the following value statement: WEZCARE, which stands for We engage, educate, and collaborate to improve accountability and reliability for everyone. Engagement includes ongoing communication with whistleblowers about disclosures and investigations, investigations conducted or overseen by OAWP, and recommendations made by the Assistant Secretary for disciplinary action. Educate includes the training that OAWP has conducted and will continue to conduct for supervisors and employees. 3 Under 38 U.S.C. 713, a VA ?senior executive" is defined as a career appointee in the Senior Executive Service or an individual in an administrative or ciinical position appointed under 38 U.S.C. 7306(a) or 7401(1). 4 Under 38 U.S.C. 323(g)(1), a ?supervisory employee? is defined as a VA empioyee who is a supervisor, as defined under 5 U.S.C. 7103(a). Under 5 U.S.C 7103(a), a "supervisor" is ?an individuai employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furiough, layoff, recaii, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which inciudes firefighters or nurses, the term "supervisor" inciudes oniy those individuais who devote a preponderance of their empioyment time to exercising such authority.? US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Collaboration includes building trust in OAWP investigations and recommendation by maintaining ongoing dialogue and communication with stakeholders, including Congress and the public. Collaboration also includes liaising with GAO, OIG, 080, and OMI on reports and recommendations and working with VA administrations and staff offices to ensure compliance with those recommendations. Accountability begins with self-accountability. That is, employees and managers holding themselves accountable versus OAWP or another entity within VA forcing them to be accountable. VA must be reliable for everyone. This includes the individuals who use VA services; who trust VA with their lives and those of their loved ones; entities that audit VA, including GAO and and Congress and the public. IV. ORGANIZATION statutory functions are executed by its Triage Division, lnvestigations Division, Advisory and Analysis Division, and the newly established Compliance and Oversight Division. Those divisions are supported by administrative and operational staff who among other things develop reports, respond to Freedom of Information Act requests, and manage budget. OAWP has 85 full-time employees (FTE) onboard as of June 1, 2019, with 25 FTE in the Triage Division, 26 FTE in the Investigations Division, 10 FTE in the Advisory and Analysis Division, and the remainder in a leadership or administrative support capacity.5 During FY 2018, OAWP had a budget of $17866 million for personnel and operations costs. For FY 2019, which covers the period of October 1, 2018, through September 30, 2019, funding for OAWP has been increased to $17,700 million. The funding is provided on a reimbursable basis from VA administrations and staff offices. V. SUMMARY OF OAWP DIVISIONS A. Triage Division: 1. Entry point for all whistleblower disclosures and matters submitted to OAWP for review. 2. Assesses matters to determine if they fall within statutory scope. a. Refers whistleblower disclosures for investigation to internal VA offices and tracks the investigatory findings of those disclosures.6 5 OAWP's Compiiance and Oversight Division is currently under development and OAWP anticipates staffing it in the next fiscal year, beginning on October 1, 2019. 5 Depending on the specifics of the whistlebiower disclosure, referrals are made to: OMI for clinical or heaith care allegations; OIG for allegations involving criminai or potentiaily criminai activity; and/or the respective VA administration or staff office for all allegations that do not invoive misconduct or poor performance by VA senior executives and do not invoive ailegations of whistieblower retaliation by VA supervisors. 5 US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 b. Refers whistleblower disclosures alleging misconduct or poor performance involving senior executives to Investigation Division for investigation. 0. Refers whistleblower disclosures alleging whistleblower retaliation by supervisors to Investigation Division for investigation. 3. Maintains multiple avenues to receive disclosures including via a toll-free telephone number, email, and fax.7 B. Investigations Division: 1. Primary entity within VA for investigating the following: a. Allegations of misconduct or poor performance involving senior executives; and b. Allegations of whistleblower retaliation. 2. OAWP investigators assess allegations and determine the appropriate scope and method of investigation. Investigators gather evidence, conduct witness interviews, and prepare reports of investigation. C. Advisory Analysis Division: 1. Reviews reports of investigation to ensure that the underlying evidence gathered by the investigator support the report. 2. Recommends to the Assistant Secretary whether OAWP should recommend discipline or a performance-based action to the Secretary. 3. Works closely with Office of General Counsel and proposing and deciding officials on disciplinary and performance?based action proposal and decision letters. 4. Provides training to VA leadership and managers on whistleblower protections and the Accountability Act. D. Compliance and Oversight Division: 1. Currently under development. OAWP anticipates staffing it in the next fiscal year, beginning on October 1, 2019. 2. Wilt record, track, review, monitor, and confirm implementation of recommendations from audits and investigations conducted by GAO, OIG, OMI, and OSC. 3. Will analyze data from OAWP and OIG telephone hotlines, other whistleblower disclosures, disaggregated by facility and area of health care if appropriate, and 7 A Web site submission form is under deveiopment. 6 U.S. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 relevant audits and investigations to identify trends and issue reports to the Secretary. VI. OAWP ACTIVITIES DURING FY 20188 A. Whistleblower disclosures 1. During FY 2018, OAWP received 1,965 disclosures.9 The specific categories and quantities are displayed in Figures 1-3. 2. Out of those 1,965 disclosures received by OAWP: a. 1,640 disclosures were referred to VA administrations and staff offices for investigation; and b. 325 disclosures were referred to OAWP for investigation. 3. Out of the 1,965 disclosures, 922 were determined be whistleblower disclosures, as defined under 38 U.S.C. 3 As with aii'data, the numbers in this section represent a snapshot of activity at the time the data is requested. Reported data may fluctuate due to adjustments as work is categorized or data input corrected. 9 During FY 2016, OAWP received 2,391 submissions. However, 426 of these submissions were not accepted for investigation and not referred to VA administrations and staff offices. Typicaiiy, this was due to a lack of information or because the matter is reiated to another disctosure that is being investigated. Consequently, these submissions were not counted towards the number of whistleblower disclosures referenced above. to See footnote two for a definition of "whistlebiower disclosure.? US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 of Disclosures by Type, FY18 1% 1% 1% ot a W8 disclosure I Violation of any law, rule or regulation W8 retaliation Abuse of authority I Gross mism anage me nt 55% I Substantial and specific danger to public health Substantial and specific danger to safety Gross waste of funds Figure 1: Percentage?ofDisclosuresby Cate?gory: The above chart displays the breakdown of disclosures by general category of the disclosure as received by OAWP from October 2017 through September 2018. US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 IVHA IVBA LIOIT OALC I BVA OSP I 86.0% Figure 2: Percentage of Disclosures by the administration or staff office the disclosure involved, FY 2018 The above chart displays the percentage of disclosures received broken down by the administration and staff office involved in the disclosure during FY 2018. The chart excludes administrations and staff offices where disclosures were less than 0.5 percent. US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Count of Disclosures by Type by Month, FY18 250 233 237 3 I Not 3 it 173 Substantial and spaz'?c danger 171 ?4 1 "tr II Substantial and speci?c dang er to pubic health 150 14? 143 I abu LE :3 author ty 130 130 ll Gross-N618 01 Fund-:- I Gross rn lgnanegernent 100 96 I c? any law. ru 'e oi regu 'sr. 'on retaliation - I33 '1 . "n 3 1?3 53 r-Jt 1-1 33--I Figure 3. Count of Disclosures by Category by Month, FY 2018 The above chart graphically displays the category of disclosures received during FY 2018. B. Investigations During FY 2018, OAWP conducted 133 investigations and monitored 1,099 investigations. Regarding whistleblower retaliation, OAWP initially referred allegations of whistleblower retaliation to the affected administration or staff office when a senior leader11 was not implicated. As part of those referrals, OAWP instructed the recipients that an investigation could not be conducted by anyone involved in the allegations. As of June 2018, OAWP took over conducting all investigations into alleged whistleblower retaliation by supervisors, regardless of whether a senior leader was implicated. ?1 During FY 2018, ?senior leader? was defined to include, but was not limited to, individuals appointed in the Senior Executive Service and employees who occupy an administrative or executive position and who are appointed under 38 U.S.C. 7306, 7401(1), or 7401(4). 10 US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 C. Disciplinary recommendations During FY 2018, OAWP reviewed 191 matters?E2 for possible discipline against 358 Persons of Interest (POI). 61 cases resulted in an OAWP recommendation for disciplinary action against one or more POls. 32 cases resulted in a disciplinary action taken against 37 POls.13 VII. TRAINING AND STAKEHOLDER ENGAGEMENTS OAWP is committed to educating VA senior executives, managers, and employees about the Accountability Act, whistleblower protections, and process. During FY 2018, OAWP presented training on the Accountability Act, whistleblower protections, and process to: . Veterans Health Administration (VHA) leadership at the Veterans Integrated Service Network (VISN) Directors Conference in November 2017. OAWP subsequently trained leadership, including medical center directors, chiefs of staff, and associate directors, at six individual . Veterans Benefits Administration leadership at a senior leader conference in the April 2018; The American Federation of Government Employees (AFGE) in January and February 2018;and . Leadership for the five national labor unions representing VA employees in April 2018.14 OAWP has also responded to emergent VA needs by deploying intake and investigation teams to facilities in Manchester, MA, Bedford, MA, Roseburg, OR, Columbia, SC, Leeds ?2 Matters inciude investigations completed by OAWP, reports from the Office of Special Counsel, administrative judge decisions from the Merit Systems Protection Board, finai agency decisions from Office of Empioyment Discrimination Complaint Adjudication; and iocai facility and fact-findings invoiving senior ieader misconduct or poor performance. ?3 VA recognizes that there is a difference between the number of POis against whom OAWP recommended discipiinary action versus against whom actions were proposed or taken. Under 38 U.S.C. 323(f)(2), VA must report to its respective oversight committees if the Assistant Secretary recommends discipline and VA ?does not take or initiate the recommended disciplinary action before the date that is 80 days after the date on which the Secretary received the recommendation" from the Assistant Secretary. However, untii January 7, 2019, VA did not have an Assistant Secretary for Accountability and Whistieblower Protection. instead OAWP was managed by an Executive Director, who was delegated a series of functions that were similar to, but did not mirror, the functions that are performed by the Assistant Secretary. The Executive Director for OAWP did not recommend a specific discipiinary action to the Secretary; rather, the recommendation was that "disciplinary action be proposed against? the respective employee. Foiiowing the Executive Director?s recommendation, disciplinary action was ?initiated? against the respective employee in that VA began the process of engaging with the proposing officiai regarding the action and drafting a proposed charge letter. Those steps were accomplished within 80 days from the receipt of the Executive Director?s recommendation to the Secretary. Consequentiy, VA initiated the disciplinary recommendation of the Executive Director within 80 days from the receipt of the Executive Director?s recommendation to the Secretary. It is important to note that 38 U.S.C. 323 does not require the Secretary to take the disciplinary action recommended by the Assistant Secretary, even if a specific discipiinary action is recommended. 14 American Federation of Government Employees, Nationai Federation of Federai Empioyees. National Nurses United, Nationai Association of Government Empioyees, and Service Employees internationai Union. 11 U.S. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 (Northampton), MA, and Bay Pines, FL, as situations emerged in those locations. These teams provided real time disclosure intake and development of critical concerns at those facilities. ON THE With the appointment of its first Assistant Secretary on January 7, 2019, and on the second anniversary of the Accountability Act, OAWP intends to do the following: A. focus the organization on its statutory functions; B. establish Compliance and Oversight Division; C. issue VA policy governing whistleblower disclosures, OAWP investigations, and audit and recommendation compliance; D. communicate, on a timely basis, with whistleblowers and POIs about disclosures and inves?ga?ons; enhance the investigation process, including developing standardized training for OAWP investigators, an investigation planning tool, audit mechanisms, and a standardized reporting format; develop specialized investigatory teams, including on whistleblower retaliation matters; . eliminate the backlog of cases pending investigation; ensure adequate internal controls over matters in OAWP divisions, including supervisory review of matters before they are closed out; ensure adequate internal controls over administrative and operational matters, including employee timekeeping and travel; finalize training on whistleblower protections required under 38 U.S.C. 733; improve stakeholder engagement both within VA and outside enhance transparency with Congress, whistleblowers, and stakeholder groups; and . improve OAWP employee morale by rewarding employees who excel and holding poor performers accountable. :er 12 US Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Appendix 1: 38 U.S.C. 713 and 714 actions coordinated by OAWP during FY 2018 38 U.S.C. 713 provides the Secretary with the authority to reprimand, suspend, involuntarily reassign, demote, or remove individuals in senior executive positions for misconduct or poor performance. 38 U.S.C. 713 Actions coordinated by OAWP during FY 2018 Number of proposed disciplinary actions issued 22 Number of proposed penalties upheld in the decision 15 - 7 (3 senior executive service employees 4 Title 38 SES-equivalent employees) Number of proposed penalties mitigated 10 Number of employees who retired or resigned in lieu of 5 action, or otherwise did not have a decision made on the proposal matter was settled) 38 U.S.C. 714 provides the Secretary with authority to suspend for 15-days or more, demote, or remove permanent Title 5 or certain Title 38-hybrid employees for misconduct or poor performance. 38 U.S.C. 714 Actions coordinated by OAWP during FY 2018 Number of proposed disciplinary actions issued 12 Number of proposed penalties upheld in the decision 6 (one General Schedule employee/ 2 GS- 14 employees/ 3 5 employees) Number of proposed penalties mitigated 2 Number of employees who retired or resigned in lieu of 4 action, or otherwise did not have a decision made on the proposal matter was settled) 15 VA acknowledges that. when comparing other public submissions of VA personnel data to Congress, there may be apparent differences in data for similar time frames and similar actions. These differences are based on both the source of the data and the point in time that the data is pulled. For example, data from Human Resources Information System (HRSMART) (VA's official system of record) only codes disciplinary action affecting pay. Thus, other types of disciplinary actions such as reprimands will not appear in that system even though the disciplinary action was taken under 38 U.S.C. 713. Additionally, in some cases the final nature of disciplinary action may evolve depending on the investigatory process and ultimate outcome, which may account for data differences based on the point in time reports are run. VA recognizes the need for robust and secure personnel case management systems with fidelity in data and reporting ability and is working to enhance such capabilities in the Department. 13 US. Department of Veterans Affairs, Office of Accountability and Whistleblower Protection Congressionally Mandated Report for October 1, 2017, through September 30, 2018 Appendix 2: 38 U.S.C. 714(e) holds during FY 2018 38 U.S.C. 714(e) states that a covered employee may not be removed, demoted, or suspended under 38 U.S.C. 714: (1) while the employee is seeking corrective action from OSC regarding an alleged prohibited personnel practice, unless OSC agrees to allow the action to proceed; or (2) has made a whistleblower disclosure to OAWP until a final determination is made regarding the disclosure. Effectively, a 38 U.S.C. 714 action is on hold until the above determination has been made. 38 U.S.C. 714(e) holds during FY 2018 Number of holds initiated during FY 2018 216 Number of holds pre-dating FY 2018 10 Number of holds released by OAWP and OSC during FY 2018 172 Number of holds 2018 27 Number of holds by OAWP at the end of FY 2018 25 14