New Whistleblower Protection Office Is Under Investigation for Retaliating Against Whistleblowers

The Veterans Affairs Department’s watchdog is investigating a new office created by President Trump early in his administration that was designed to protect whistleblowers from reprisal but is now facing allegations of aiding retaliation against them.

VA’s Office of Inspector General is leading the investigation from its new Office of Special Reviews, which the IG created to conduct “prompt reviews of significant events” and examine allegations of senior VA employee misconduct, an IG spokesman said. The new IG office is looking into activities at the Office of Accountability and Whistleblower Protection as part of an ongoing review of the implementation of the 2017 law that created OAWP.  

Trump created OAWP by executive order in 2017 and later codified it when he signed the 2017 VA Accountability and Whistleblower Protection Act into law. The office was mostly celebrated, with advocates hopeful that the focus on the rights and protections for whistleblowers would reverse a culture infamous for intimidation and reprisal. That optimism has largely soured, however, leading to hotline tips to the inspector general and bipartisan scrutiny from Congress.

“There has been considerable interest by some members of Congress and other stakeholders in this effort,” said Mike Nacincik, the IG spokesman, who said he could not comment further on ongoing work.

President Trump has frequently touted the law as one of his signature legislative achievements, focusing primarily on the reforms it made to expedite the disciplinary process for VA employees. But Trump also spoke of the promises on which skeptics now say the law has failed to deliver: “This bill protects whistleblowers who do the right thing,” Trump said. “We want to reward, cherish, and promote the many dedicated employees at the VA.”

Government Executive spoke to several VA employees who expressed frustration or anger toward OAWP, three of whom have already been interviewed by IG investigators. They described feeling betrayed or neglected by an office they believed was going to help them but ended up doing the opposite. They said they have shared information with the investigators, including documentation of alleged reprisal.

Curt Cashour, a VA spokesman, said the department “welcomes the inspector general’s oversight,” but defended it against most allegations. He acknowledged that the office experienced some growing pains, but said it has “evolved over time, refining and improving its policies and practices along the way.”

What Whistleblowers Are Telling Investigators

“It’s a crooked system where literally the fox is guarding the hen house,” said Jay DeNofrio.

DeNofrio, an administrative officer at a VA facility in Altoona, Pa., had prior experience as a whistleblower before OAWP was created—years ago, he disclosed information about a doctor he said was losing mental capacity and putting veterans at risk—so he thought he understood the investigative process that takes place after employees make disclosures to investigators. OAWP, however, was the first body he’d ever worked with that coordinated with VA headquarters to find blemishes on his own record after he reported wrongdoing, he said. Investigators questioned his coworkers, telling them DeNofrio does not “walk on water” just because he is a protected whistleblower and encouraged them to immediately report “any instances of poor behavior,” according to transcripts of those conversations obtained through records requests and provided to Government Executive.

DeNofrio said IG investigators took the allegations against OAWP seriously and called their review “high profile” and “high priority.”

Dan Martin, a chief engineer at VA’s Northern Indiana Health Care System, said OAWP failed to protect him when his case came before it. Martin said in 2016 he discovered contracting violations related to a non-functioning water filtration system, but when he reported the problems to superiors he was stripped of his responsibilities and sent to work in an office without heat or air conditioning. The VA inspector general launched an investigation into the contracting practices, and asked Martin to surreptitiously record conversations with procurement officers, Martin said.

It was not until OAWP got involved in the case that Martin’s supervisors became aware of that cooperation. When OAWP allegedly shared that information with leadership at his facility, Martin said his supervisors “had no choice but to shut me down” so he could no longer send recordings about the supervisors’ “very inappropriate relationships with contractors” to investigators in the OIG.

“OAWP set me up,” said Martin, who initially felt far more optimistic about OAWP’s capacity to help his cause. “They incentivized [my facility] to go after me.”

Martin is also fighting his case through the Merit Systems Protection Board. During that process, VA’s Office of General Counsel came to Martin and his attorneys asking for certain information about the case. The attorneys representing Martin told the lawyers in the Office of General Counsel they would only hand the information over during discovery. Shortly after rejecting the request, Martin said, OAWP followed up to ask for the same information.

“Some of them are so crooked they swallow nails and spit up corkscrews,” Martin said.

‘They Turned on Whistleblowers’

The alleged collaboration between the Office of General Counsel and OAWP has troubled observers. Tom Devine, legal director at the Government Accountability Project, a whistleblower advocacy group, said his initial excitement about OAWP has been dampened by “structural developments,” including what he called veto power the department's general counsel has over the whistleblower protection office.

This would appear to be in violation of the 2017 law that permanently authorized OAWP, which prohibits the office from existing “as an element of the Office of General Counsel” and its leadership from reporting to OGC. Cashour said it was false to suggest that the Office of General Counsel exercises veto power over whistleblower claims, but acknowledged OAWP and OGC do coordinate.

“OAWP has a collaborative working relationship with OGC, but OAWP retains final decision making authority on all OAWP matters,” Cashour said.

Rebecca Jones, policy counsel at the Project on Government Oversight, said the office can likely not completely fix its issues while it remains an “internal clearinghouse” for whistleblowers rather than a truly independent office. Jones praised the IG for investigating the alleged retaliation.

“I wish it hadn’t come to this,” she said.

Devine praised some of OAWP’s early accomplishments, such as delaying VA’s disciplinary decisions that involved alleged reprisal and the hiring of high-profile whistleblower Brandon Coleman as a liaison between whistleblowers and the office. Coleman even established a mentoring program to help assist victims of retaliation, but it has since been shut down.

“They didn’t have the teeth to enforce their good deeds,” said Devine, who has significantly curbed his cooperation with OAWP. “They turned on whistleblowers.”

‘You Don’t Want to Come Forward’

A third VA employee, who requested anonymity to protect his ongoing cases, recently informed IG investigators about what he alleged is OAWP’s betrayal of trust and subsequent inactivity. The employee made an initial whistleblower disclosure in early 2017 that was bounced around to several offices within VA. He subsequently was removed from his position as a technician and is now relegated to “brain-dead work,” he said.

He contacted OAWP about the alleged reprisal later that year. During his interactions with the whistleblower office, he turned over sensitive information about his hospital that a colleague had provided—the OAWP investigator was the only individual with whom he shared the information. Days later, the employee said, the colleague was “chewed out” by leaders at the facility for sharing the information. To the employee, it felt like OAWP had betrayed him, he told Government Executive.

The employee said he then experienced 21 months of “radio silence.” He recently spoke with OIG about his negative experiences with OAWP. A few days later, the employee said he unexpectedly heard from the OAWP investigators. He said he is now “very, very cautious” in his interactions with OAWP.

“It scares you,” he said. “You don’t want to come forward. People are afraid.”

Tonya Van, formerly a doctor a VA facility in San Antonio, also became a whistleblower after disclosing to a supervisor that a doctor at her facility was giving incorrect diagnoses. She filed a complaint with OAWP after she alleged her supervisor made her work life so miserable she was forced to resign. But she quickly became disenchanted with the office due to lack of communication, she said. She tried to follow up with OAWP but never heard back. The office eventually closed out her case, though it later contacted her about opening a second investigation. She said she has “no idea” what the results of either investigation were.

Van alleged that her supervisors’ reprisal against her took the form of accusations of using foul language in the workplace. Martin, the Northern Indiana employee, said he faced an investigation for similar accusations.

Changes and Cautious Optimism

Cashour, the VA spokesman, said OAWP does not provide “detailed information related to the specific outcome of an investigation to employees” due to privacy concerns. He added that the office has revised its policies to disclose more information to claimants, including when an investigation has been closed and if claims of retaliation were substantiated.

Multiple VA employees criticized this practice, calling it counterintuitive that VA would claim privacy concerns over investigations that the employees themselves requested.   

Cashour said OAWP has changed other practices after a draft of a June 2018 Government Accountability Office report faulted the office for its investigatory practices, including allowing officials accused of retaliation to be directly involved in the inquiries in which they are named. VA told GAO it would not end its practice of “referring cases of misconduct back to facilities and program offices where the misconduct occurred.” However, Cashour said OAWP now informs employees upfront when their matters will be referred elsewhere for review. To protect whistleblowers, he said, OAWP now allows employees “to either opt-out of the disclosure or withhold the release of their name.”

In August 2018, however, when Van had an in-person interview with OAWP investigators, she and her attorney were still alleging retaliation by OAWP. While asking about Van’s allegations, an OAWP investigator told Van she could be penalized for violating a prior settlement with VA by asking a former colleague to write a recommendation. Her attorney said Deirdre Weiss, the OAWP employee, was ignoring the intent of that prior agreement.

“The bottom line is that, as accountability investigators, where we see possible wrongdoing we cannot look the other way just because somebody is a complainant, okay,” said Weiss, according to a transcript of the proceedings.

Last year, before his office formally launched an official investigation into the practices of OAWP, VA Inspector General Michael Missal became part of a public spat with then acting Secretary Peter O’Rourke over documents housed within the office. The IG requested access to information on the cases filed with OAWP, but O’Rourke refused to comply. They aired their grievances through a series of public letters, which included O’Rourke harshly reminding Missal that the IG served as the secretary’s subordinate. Congress ultimately intervened by emphasizing in a spending bill that the IG had the right to any and all documents it requested.

O’Rourke had previously served as the first head of OAWP, a period in which many of the complaints against the office originated. Current VA Secretary Robert Wilkie reportedly asked O’Rourke to resign last year after determining he was doing little work as a senior advisor.

OAWP is still a small office, employing just 96 workers—28 of whom are investigators—for a workforce of 380,000. Its employees receive standardized training in investigative techniques, both internally and from outside experts such as those at the Homeland Security Department and the Office of Special Counsel.

The office is now headed by Tammy Bonzanto, who previously served as an investigator on the House Veterans Affairs Committee. Her tenure has received mixed reviews. DeNofrio, for example, is still concerned by what he calls her lack of transparency. Other observers are cautiously optimistic that her leadership could get the office back to its original mission.

“We’re confident they have good-faith leadership now,” said GAP’s Devine. “The question is how much professional freedom she’ll have.”