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By Hassan Kanu
Feb. 19 — The Department of Veterans Affairs must put a stop to the continuing retaliation against whistle-blower Brandon Coleman and transfer him to a facility that isn't managed by the same people who have been punishing him for his disclosures, two senators said in a Feb. 16 letter to VA Secretary Robert McDonald.
Coleman, a disabled veteran of the Marine Corps, was an addiction therapist at the Phoenix VA hospital. He reported in December 2014 that the facility was failing to properly care for suicidal veterans. This led to his suspension with pay on Jan. 27, 2015.
The pervasive administrative failures at VA hospitals across the U.S., brought to light particularly during the past two years, were getting notice well before Sens. Ron Johnson (R-Wis.) and Charles Grassley (R-Iowa) took up Coleman's cause.
“The public wants to think we take care of our vets, but hundreds of people are coming forward,” Dr. Lisa Nee, a former VA cardiologist and whistle-blower, told Bloomberg BNA. “It's like the situation in Flint, Mich.: When that many people are saying the water tastes bad, it's likely something's wrong with the water.”
Recent examples of the agency's administrative problems include:
U.S. Office of Special Counsel chief Carolyn Lerner has testified that nearly 40 percent of the OSC's 2015 cases were from the VA alone. The OSC enforces many of the statutes that protect federal workers.
Although the issues are widely acknowledged, reports and hearings have yet to attempt serious answers to the obvious questions: What, exactly, is wrong at the VA and why is it so difficult to fix or even improve?
Coleman appeared on television after reporting that the Phoenix hospital was mismanaging suicidal veterans, including one who committed suicide on VA property.
Shortly afterward, the hospital's interim director met with managers and lawyers to inquire whether it was possible to fire him, the senators wrote. A VA lawyer said that would be unlawful retaliation, but suggested firing Coleman for “unrelated misconduct.”
Coleman was accused of assaulting a co-worker and put on paid leave shortly after the meeting. He said the hospital then shut down his program for drug-addicted veterans. “I had 71 veterans that were left without a program,” Coleman told Bloomberg BNA.
While he was suspended, a colleague came to work dressed as Coleman for Halloween, complete with fake Marine tattoos and a walking cane. A supervisor apparently allowed the man to wear the costume all day, the senators wrote.
Later, in congressional testimony, Coleman alleged that his medical records were illegally reviewed. Lerner has said the OSC is concerned about “the accessing of employee medical records in order to discredit [VA] whistleblowers.”
The Phoenix VA public affairs officer, Jean Schaefer, told Bloomberg BNA that the Halloween incident is still being reviewed. She said Coleman “made some recommendations about how we should care for suicidal veterans, and as a result, we've made some significant improvements.”
“We ask that the VA stop avoiding responsibility in this case by keeping Mr. Coleman in the indefinite limbo of administrative leave,” Grassley and Johnson wrote in the Feb. 16 letter. As the letter illustrates, the agency's issues persist.
One of the root causes concerns the agency's culture, Tom Devine, legal director of the Government Accountability Project, told Bloomberg BNA. Devine has represented whistle-blowers since the 1990s.
In a 2000 report on whistle-blower protection at the VA, the Government Accountability Office referenced organizational culture: the “underlying assumptions, beliefs, values, attitudes, and expectations shared by an organization’s members.” The GAO noted a consensus among experts “that an organization's beliefs and values affect the behavior of its members,” a finding the government considered relevant to these sorts of systemic issues as far back as 1992.
“Government agencies have ‘personalities' based on accumulated cultures,” Devine said. “Some are militaristic, like the Department of Defense, and some are academic, like the National Institutes of Health.”
The VA's organizational culture, at least historically, is unique.
The agency operates under a personnel system independent from the rest of the government's “merit system”—codified in Title 5 of the U.S. Code. The merit system is essentially a set of rules to protect employees against abuse by management. It is enforced by the quasi-judicial Merit Systems Protection Board.
The VA has its own personnel system under Title 38. According to a 1991 MSPB study, the “original impetus” for this alternate system was “the circumstances the country faced at the end of World War II.”
As the war ended, the VA needed a “massive increase in its workforce” of doctors, nurses and dentists, and the merit system's hiring processes seemed too slow. The problem was “addressed by legislation which created a separate personnel system for these occupations in the VA,” the MSPB wrote.
One of the most decorated officers in U.S. military history, Gen. Omar Bradley, was recruited to head the new VA. Although the commission that oversaw the merit system asked President Harry Truman for a veto, Bradley returned from his first vacation since the war began and personally convinced the president to sign it.
The VA thus got its own personnel system in 1944. Currently, VA employees are sometimes hired under Title 5, sometimes under Title 38, and some are even considered “hybrid” workers. Over time, the original Title 38 system has expanded to cover more “medical” occupations.
“It's only recently that the VA's cultural history even began to overlap with the rest of the federal government's merit system,” Devine said. “It wasn't until 1994 that we obtained Whistleblower Protection Act coverage for Title 38 employees, and some workers there still have more limited rights than other federal employees.”
Even after this change, the GAO said in its 2000 report, “VA headquarters did little to inform its employees about their rights to protection against reprisal.” At the time, 43 percent of VA workers didn't know whistle-blower laws exist.
Perhaps more importantly, the agency's own human resources and inspector generals offices “did not know what actions, if any, VA took against VA managers when reprisal was found,” the GAO reported. Devine said “VA managers have been retaliating with impunity as long as the agency has existed.”
The GAO study identified “a fear of reprisal in the existing organizational culture,” saying this “could deter VA employees” from reporting misconduct. That somewhat-late warning was correct, Devine and the whistle-blowers said.
“Almost all the studies of witnesses who remain silent observers have confirmed that the number two reason was fear of retaliation, the number one reason has been cynicism—that nothing will be done,” Devine said. “A corrupt tradition is so deeply ingrained that the only thing you'll accomplish is a likely risk of retaliation, and you still won't help anyone.”
“The predatory and retaliatory environment comes from the top down,” Coleman agreed. The January investigation of the Louisiana VA chief found that he contributed to a culture of “little accountability.”
Devine characterized the VA's culture as “a little militaristic.”
“Managers at the VA prove themselves through their willingness to harass away any dissenting voices,” he said.
Nee, the cardiologist, pointed to another possible cause: that high-level managers, having secured well-paid, comparatively less demanding jobs, are more interested in self-preservation than efficient service.
“When you can make six figures working about eight hours a week, plus a pension, you won't want anyone messing with that,” she said. She added that she was told she would “get out early” because she was giving everyone “a bad rap by working too hard.”
Nee pointed out that almost every VA whistle-blower's “complaints were about patient care.”
“It's one thing to ignore people in the workplace, its totally different to have someone basically want to harm you because you stood up for patient care,” she said.
The VA's decentralized structure also exacerbates its problems, Devine said.
“The VA is one of the most feudal agencies we have,” he told Bloomberg BNA. “Authority is highly decentralized and the chief is relatively weak compared to other cabinet secretaries, which makes it very hard for any VA secretary to lead a makeover.”
During a July 2015 hearing, the OSC's Lerner testified that an “ongoing concern is that the cooperation … at VA headquarters has not consistently filtered down” to the regional offices.
She said regional lawyers often lack a “clear understanding of what constitutes appropriate treatment of whistleblowers.” Although their role includes advising management on how to avoid illegality, in many cases “the regional counsel is the person who signed off on the very same retaliatory action that OSC challenges,” Lerner said.
The question of how to alleviate the problems remains. Nee noted “how much money is flowing into” current efforts without results.
“The money train always comes to the VA, and no matter how much Congress complains, they'll approve a huge amount of money,” she said. “Veterans and, importantly, the taxpayers, deserve better.”
Nee agreed with Coleman and Devine that an internal fix may be impossible.
“The structure of the VA is obviously dysfunctional, and so it's not realistic for VA to internally create a makeover,” Devine said. He said “the most realistic strategy for establishing deterrence” is legislation introduced last year by Sens. Richard Blumenthal (D-Conn.) and Mark Kirk (R-Ill.), the VA Patient Protection Act. Grassley and Johnson are cosponsors.
The bill would compel the VA to fire supervisors for a second instance of retaliation, and it ties their performance ratings to how they deal with whistle-blower complaints. It also empowers employees to report misconduct to a next-level supervisor if the immediate supervisor doesn't respond. The measure has been referred to the Senate Veterans' Affairs Committee.
“This type of legislation is much more likely to bring about the sea change needed at the VA,” Devine said.
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Text of the Feb. 16 letter is available at http://src.bna.com/cGU.
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