Administration officials defend maligned whistleblower protection office, though lawmakers still want changes

Now six years after its creation, lawmakers and advocates are still looking to overhaul an embattled office within the Veterans Affairs Department stood up to assist whistleblowers. 

VA officials on Thursday told a panel of the House Veterans Affairs Committee the office has improved dramatically since its founding days and is now fulfilling its mission to assist employees looking to shine a light on wrongdoing and protect themselves against retaliation. Lawmakers expressed skepticism the issues could be addressed internally, however, and suggested once again the office may have to shed some of its responsibilities. 

The department’s Office of Accountability and Whistleblower Protection—created by a 2017 President Trump executive order and later codified when Trump signed the 2017 VA Accountability and Whistleblower Protection Act into law—has since its founding faced criticism for failing to deliver on its promise. Government Executive in 2019 first revealed allegations of the office engaging in retaliation against those seeking its protection, which a subsequent inspector general report corroborated. Congress has held multiple hearings blasting the office for failing to prevent whistleblower reprisal and for taking almost no action to discipline top executives engaged in retaliation. The charges led to new leadership, though the allegations of reprisal within the office continued.

“It is broadly accepted that the first few years of OAWP’s existence were an absolute failure,” said Rep. Jen Kiggans, R-Va., who chairs the Oversight and Investigations Subcommittee that held the hearing. “This Congress, OAWP has confidently told my staff that things are much better now, that they’ve put the right people and policies in place. I do not doubt that OAWP has many good employees who are attempting to make things right. But I also know that these employees are fighting an uphill battle.” 

Bruce Gipe, VA’s current acting assistant secretary for OAWP, acknowledged his agency was “in crisis” in 2019, but said that is “no longer the case.” The office is rebuilding trust within the workforce, he said, evidenced by the growing number of complaints and disclosures it is now reviewing. He also noted management has accepted 100% of its disciplinary recommendations in 2023, compared to 2021 when it rejected 32% of them. The number of recommendations, however, dropped significantly to just 19 in 2023.

Still, some lawmakers and advocates who testified to the panel said the office was fundamentally flawed as it does not maintain complete independence from VA and has no internal enforcement authority. Gipe countered that OAWP maintains total independence over its investigations and is not subordinate to VA’s Office of General Counsel. 

Groups like the Project on Government Oversight and the Government Accountability Project on Thursday re-endorsed legislation that passed the last Congress with broad bipartisan support—but was never taken up in the Senate—to shift some of OAWP’s responsibilities to the independent Office of Special Counsel. 

The measure would have tasked OSC with conducting all investigations related to VA whistleblowing and allegations of reprisal. OSC is better suited for the work, proponents of the change said at the hearing, due to its independence, decades of experience and ability to pursue enforcement through prosecution at the Merit Systems Protection Board. The bill would give OAWP its own general counsel, broaden whistleblower protections to members of the Senior Executive Service, allow employees to seek temporary relief against disciplinary actions while their cases are being investigated and require more transparency in the reporting of the office's work.

“No internal whistleblower protection office can adequately protect whistleblowers without real independence from the agency it investigates,” said Joe Spielberger, policy counsel for POGO. “An office without enforcement authority is toothless, because at most it can only make recommendations to the agency.” 

Samantha Feinstein, a staff attorney at GAP, said conditions have improved at OAWP under new leadership, but cautioned the structural issues mean “prior nightmarish mismanagement and abuses of power can resume at will.” 

Rep. Chris Pappas, D-N.H., ushered the OAWP reform bill through the House last year and said those changes are still necessary. 

“After six years of the establishment of OAWP, I think it's clear to me that there are major shortcomings within the initial law that was passed, certainly with its implementation on the last six years because we have seen repeated leadership changes, missed deadlines and lack of accountability,” Pappas said. 

Thomas Costa, a Government Accountability Office director, noted VA’s general counsel, not OAWP, is in charge of negotiating settlements with whistleblowers claiming retaliation. It reached a settlement in less than 1% of cases since 2022, he said, resulting in payouts between $2,000 and $500,000. He added there “certainly is a duplicative nature” to OAWP and OSC, but had not examined “whether that duplication is warranted or not.”

Gipe said Congress intentionally wanted to give VA employees multiple options and it was wise for doing so. After the hearing, Kiggans said she wanted to look at the legislation that passed the House last Congress and "hopefully tweak" it. She added she wanted to be "careful we're not duplicating" what OSC does. Gipe said there was nothing that jumped out at him as requiring any legislative change for OAWP. 

Congress is considering multiple alternative bills related to VA accountability. The House VA Committee has passed along party lines The Restore VA Accountability Act (H.R. 4278), which would allow the department’s secretary to remove or demote any employees and, for supervisors, eliminate their ability to launch an appeal to the Merit Systems Protection Board, the independent agency designed to hear such cases. The Senate VA Committee has put forward a bipartisan measure that would require a unified approach to disciplining employees, increased training for management on holding employees accountable and consolidate the department’s various oversight entities for health care services. VA has sharply criticized the House bill and endorsed the Senate legislation.